Constitutional Law

Why Are Previously-Convicted Felons Denied the Right to Vote?

Florida voters are set to consider deleting a provision in the Florida Constitution depriving convicted felons of the right to vote. It's about time.

|The Volokh Conspiracy |

A couple of years ago, Virginia was embroiled in a noisy political dispute involving voting rights for ex-felons. All States (except Vermont and Maine) prohibit convicted felons from voting while they are incarcerated. But Virginia (and 10 other States: AL, AZ, DE, KY, IA, MS, NE, NV, TN, and WY), goes further, and permanently disenfranchises convicted felons—permanently, as in forever, even after they have served their time and completed their term of imprisonment and/or probation or parole—unless their rights are restored individually by a gubernatorial "clemency" action. [See the excellent report by the Sentencing Project on "State Felony Disenfranchisement, 2016"] The VA Democratic governor at the time, Terry McAuliffe, was proposing a blanket restoration of those ex-felon voting rights, and there was fierce opposition from the Republican-dominated State Legislature. [The Brennan Center has a good summary of the Virginia dispute here]

In the aggregate, these State laws bar over six million people from voting—around 2.5% of the voting age population in the country. About a quarter of these are people who are currently in prison. But a majority (51%) of the disenfranchised are individuals who have completed all parts of their sentences successfully and are now back in the community, trying, one would hope, to put their lives back together again. [Relevant statistics are here]

Coincidentally, while the Virginia battle was playing out on the local news here in DC, I was working on several constitutional challenges to the provisions in State "sex offender" laws that deprive individuals previously convicted of "sex offenses" of their right to work at certain jobs, or to use certain Internet resources, or to live in certain neighborhoods, or to enter school buildings or parks or other public facilities. [As it happens, this work did bear fruit, ultimately, in last Term's decision in Packingham v. North Carolina].

There's a fairly substantial body of case precedent on these issues as they pertain to sex offender statutes, and I had been digging into it for a while when it suddenly struck me that I hadn't seen any reference in those cases to cases on the constitutionality of State disenfranchisement laws. That seemed odd. Surely there must have been such cases, and, given how widespread disenfranchisement laws still were, the practice must have been upheld as constitutional.

I needed to find those cases, because they could make it considerably more difficult to craft the argument(s) that I was trying to make; if the government can deprive the entire class of ex-convicts of a fundamental right (to vote), that could be a strong basis on which the State could argue that it can constitutionally deprive a subset of the class of ex-convicts—those who had been convicted of "sex offenses"—of their fundamental rights (to assemble with others, to speak, to live where they choose).

I needed to find them, also, because I was straining to imagine how courts could possibly have upheld the constitutionality of State felon-disenfranchisement laws. There is surely no more fundamental right in a republic than the right to vote, and, ordinarily, governmental deprivations of fundamental rights receive the strictest judicial scrutiny: The government must show that it is pursuing a "compelling" interest, that the action it has taken is necessary to achieve its purpose, and that it has been "narrowly tailored" to that end, i.e., that all feasible steps had been taken to minimize the scope and extent of the deprivation.

What is the compelling interest being served by depriving people who had felony convictions of their right to vote? How could the States' meat-ax approach of disenfranchising all felons alike—bank robbers, murderers, car thieves, drug sellers, con artists, embezzlers, counterfeiters, etc.—have been adjudged "narrowly tailored" to achieve its purpose? What is its purpose?

I quickly discovered that there had indeed been cases challenging the constitutionality of felon disenfranchisement, and they turned on one of those Constitutional provisions hardly anyone ever looks at or thinks about.

Everyone knows (or at least knows of) Section 1 of the Fourteenth Amendment: "No State shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." But I suspect that many fewer have ever read through Section 2 of that Amendment, which reads in full:

"Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State."

In Richardson v. Ramirez, 418 US 24 (1974), the Supreme Court held that the language in Section 2 italicized above assumes that States can deny its citizens the right to vote, inasmuch as it specifies the consequences in the event they do so: Their representation in the House of Representatives (and the Electoral College) will be correspondingly and proportionately reduced by the number of people so deprived of the right, unless the disenfranchisement is for "participation in rebellion" or "other crime," in which case the State's numerical basis for its representation is not reduced.

The purpose of Sec. 2 was to given States of the former Confederacy an incentive to provide full political rights, including the franchise, to freed slaves. The first sentence repeals the notorious "three-fifths clause" of Art. I Sec. 2 (which counted slaves as 3/5 of a person for purposes of determining representation in the House). This would substantially increase the relevant size of the southern States, and Radical Republicans were concerned about that, and about the likelihood that the southern States would not permit those freed slaves to vote. Hence the second sentence: States could disenfranchise people for reasons other than their participation in rebellion "or other crime"—e.g., race, or property qualifications—but if they did so, they would not be able to count those individuals in determining their share of the House.

The conclusion seems inescapable: At least at the time of passage of the 14th Amendment, felon disenfranchisement would not have been deemed a violation of the Equal Protection or Due Process Clause because, as the Court put it in Richardson, "those who framed and adopted the Fourteenth Amendment could not have intended to prohibit outright in § 1 of that Amendment that which was expressly exempted from the lesser sanction of reduced representation imposed by § 2 of the Amendment."

Wearing my advocate's hat, I was relieved; voting, it turns out, is different from other fundamental rights. Because of Sec. 2, a different rule applies to deprivations of the right to vote, which would not receive the "strict scrutiny" that would be applied to deprivations of other fundamental rights. (Which explains why there were no citations to the disenfranchisement cases in the cases involving abridgements of sex offenders' rights to live and work and speak and assemble.)

But as a citizen, I found it disheartening. Whatever Congress' views of the constitutionality of State felon disenfranchisement laws were in 1865, in my own personal constitutional universe I like to think that all government action that impinges on truly fundamental rights should be given "strict scrutiny"—and the Court's unwillingness to do so, for whatever reason, does not relieve us of our obligation as citizens to do so. And as I said, I cannot imagine a persuasive argument that would convince me that felon disenfranchisement serves some compelling government interest, or that it has been carefully and narrowly tailored to minimize its rights-destructive impact.

Which brings me to Florida. The numbers from Florida are particularly appalling. It has, by far, the highest disenfrachisement rate in the country; around 1.7 million adult Floridians cannot vote in federal, state, or local elections under Florida's disenfranchisement law, amounting to approximately one in every ten adult Floridians (up from one in 50 in 1980), and approximately one in every five adult African-Americans. Florida alone accounts for more than a quarter (27 percent) of the disenfranchised population nationally, and its nearly 1.5 million individuals who are disenfranchised after completion of all sentencing requirements account for nearly half (48 percent) of the national total of individuals in that category.

It's disgraceful, and a group called Floridians for a Fair Democracy announced, on January 23, that their "Florida Second Chances" campaign had surpassed the 766,200 signature threshold to place an amendment to the Florida constitution that would to restore voting rights to most (though alas, not all) ex-felons on the 2018 ballot.

It's not all that complicated, to my eye. People who commit crimes should be punished. Their punishment can include depriving them of cherished and fundamental rights—that's the price they pay for criminal behavior. But once it has been paid, the full panoply of their constitutional rights should be restored. That should be the law. I used to think, naively, that that was the law. I sincerely hope that Florida voters agree with me.

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  1. What are “restoration of civil rights”?

    1. Strictly speaking, voting is not a “right” under the federal constitution, unlike, say, the right to free speech. In many ways, they are not treated the same by the Constitution. So David Post’s premise (that restrictions on voting rights are analogous to restrictions on free speech) is erroneous.

      17 year olds have the right to free speech, but not the right to vote. Even though one could argue that the average 17 year old would make a better voter than the average felon (in terms of intelligence, judgment, and willingness to follow society’s rules.).

      While state governments cannot limit the franchise based on forbidden or irrational criteria (like race, see Rice v. Cayetano, or wealth), they can restrict the right to vote based on many criteria such as age. But teenagers generally have the right to free speech, such as the right to take political positions (see Tinker v. Des Moines School District (1969)) and the right to make campaign contributions (see McConnell v. FEC).

      1. I was asking what “restoration of civil rights” meant under the proposed amendment.

  2. I’m as conservative as they come, but I never agreed with taking voting rights from felons. After they leave prison they still have to pay taxes and obey the law like every other citizen, so they should still have some say in government. I would take it one step further – I would allow inmates in prisons to vote too (some European countries do this).

    However, I would also require nationwide Voter ID. But that’s another issue.

    1. Why should someone who has demonstrated he can’t follow society’s rules get to have a say on what those rules should be?

      1. Should we deny them the right to own guns as well? Even white-collar criminals who didn’t use a gun in the commission of their crime?

        1. If they’re violent, yes. Otherwise, no.

        2. “Should we deny them the right to own guns as well?”

          That is current law.

          “Should” is a different question of course.

      2. Because it is their inalienable birthright as a citizen?

        Just because a group of citizens has shown that they don’t like some of the rules currently in place, doesn’t seem like a good reason not to give them a say in what those rules should be.

        (Not to mention that it is generally bad that no one in America ever lost an election by promising to be tougher on crime, including by making prison conditions even more inhumane and sentences even more draconian. That seems bad.)

        1. That’s the crux of the debate, whether or not it’s inalienable. I don’t (and the founders didn’t) believe that to be the case.

        2. Liberty is also an inalienable right, but going to prison for years sure impinges on liberty!

        3. Because it is their inalienable birthright as a citizen?

          Well, you can argue that, but if you look at the Constitution, you’ll find what, three separate Amendments required to expand the franchise. It hasn’t been treated as such.

          1. four, I guess

          2. Its almost like the sane politicians understood it as a privilege and responsibility and not a right.

            That is because that formulation is correct, as voting is infinitely more dangerous than owning 50 guns.

          3. …which is why the original post and the ensuing conversation were not about what it says in the Constitution, but about what it ought to say.

        4. Martinned, for some cases I think we can describe felons as “not liking the rules currently in place”. For other cases, I think we can describe felons as “sadistic psychopaths with no regard whatsoever for the human rights or integrity of others”. And probably a lot that fall between those two extremes.

          I guess the problem is, there are 2 or 3 different questions lurking in there: should so many crimes be felonies, can we distinguish between malum in se and malum prohibitum, etc . .

          [ Also, surely the vote is alienable, at least temporarily for the duration of a custodial sentence. ]

          1. The vote is alienable in the sense that, yes, clearly many people have had their vote taken away so yes, as a factual matter it turns out the vote is quite alienable. But no, I don’t see why people in prison should have the vote taken away. (Although I’d be willing to make an exception for people convicted of high treason or something like that.)

            In the US people typically mention the problem of having lots of inmates vote in the district where the prison happens to be located. I’m not sure why that’s a problem. In many countries with similar type voting districts, they just have the prisoners vote in the district where they resided before they were incarcerated. Problem solved. Nothing about a custodial sentence seems to imply loss of voting rights as a logical/necessary consequence.

            1. I agree that it’s not a logical/necessary consequence.

              But neither is the converse claim that a legislature ought not prescribe that conviction of certain crimes disenfranchise the defendant for a period of time.

      3. Why should someone who has demonstrated he can’t follow society’s rules get to have a say on what those rules should be?

        Because many rules are bad rules. Locking someone up for violating those rules is bad enough, but it adds insult to injury to say, “And not only that, but you can no longer have a say in changing those rules.”

        1. The problem there is the bad laws in the first place, not felon disenfranchisement.

          1. Denying the right to vote to those most impacted by bad laws, is a good way to prevent bad laws from being repealed.

            1. But denying the right to vote by those most impacted by good laws would be a good way to prevent bad laws from being enacted.

              That’s the point: What’s your judgment as to how these people would vote? If they’d vote for things you want, you should want them to vote. If they’d vote for things you’d prefer not to have, you should want them not to vote.

              1. For instance, given the evidence of hx & current polls, we’d be a lot freer country, & probably world, if only males were allowed to vote. If we could disfranchise females, I would. If in the USA we could disfranchise blacks, I would. if we could go back a century or more it might’ve been better if we could’ve disfranchised whites, but now whites are for more freedom than blacks.

                That’s how Qs of this nature should be approached. You shouldn’t think of it as being about hurting people’s feelings, but about consequences.

                1. In other words, don’t hesitate to annihilate the cute child zombie.

              2. “But denying the right to vote by those most impacted by good laws would be a good way to prevent bad laws from being enacted.”

                That depends on what you consider to be good laws and bad laws. In my opinion, more that half the laws we currently have fall into the bad law category, so I have to disagree with this statement.

                1. Of course that depends on what you consider good & bad. Then again, all normative judgments do.

                  Regardless of the proportion of existing laws that are good & bad, what if the persons whose voting would be restored voted disproportionately for bad laws? You can’t go entirely by the stochastic principle, which would say that by random motion more bad laws than good would be changed because there are more that are bad. There are reasons more are bad than good (or good than bad); it wasn’t a stochastic process to begin w.

        2. “”And not only that, but you can no longer have a say in changing those rules.””

          A single vote matters once every 1,000,000.00 elections.

          1. And how often do six million votes matter?

            1. Assuming that they break according to the distribution of overall votes, not a whole lot.

              1. Indeed. Assuming that every voter or group of voters votes like the average voter, we might as well have just one person vote on behalf of everyone, so that the rest of us can sleep in an extra 5 minutes. See what I did there?

                1. So long as that one person is actually the average voter, then the result is indistinguishable from our current system.

                  Anyway, I nominate myself 🙂

        3. Right, so are you volunteering to go through and review all the felon rehabilitation petitions and filter out the “violated a bad rule” (surely many) from the “has no regard for human life, rights or integrity” (also many) so we can restore the former but not the latter? Is this a sensible process that can be operationalized in any kind of way?

          Maybe it is, but I’m not convinced that those arguing for rehabilitation have met the burden of specifying such a process.

          1. Sure. The ECtHR in Hirst has you covered. (It also discusses lots of case law from all over the world, but I’ll save that for another comment.)

            71. The severe measure of disenfranchisement must not, however, be resorted to lightly and the principle of proportionality requires a discernible and sufficient link between the sanction and the conduct and circumstances of the individual concerned. The Court notes in this regard the recommendation of the Venice Commission that the withdrawal of political rights should only be carried out by express judicial decision (see paragraph 32 above). As in other contexts, an independent court, applying an adversarial procedure, provides a strong safeguard against arbitrariness.

            http://www.bailii.org/eu/cases/ECHR/2005/681.html

            1. I do not accept that the legislature has the authority to impose custodial sentences but that only an ‘express’ judicial decision can impose the loss of franchise.

              Besides being an affront to the basic authority of the representative branch of government, it also seems to me plainly illogical: liberty is a far more important right than franchise, but the imposition of a custodial sentence within the guidelines that the legislature dictates somehow does not require an ‘express’ decision?

              1. [Edit: I meant in the sense that having a more stringent review for a less infringing sentence. ]

              2. The legislature does not the authority to impose custodial sentences. Custodial sentences require a trial where the individual circumstances of the case are considered.

                1. I mean, the legislature having the authority to set (range of) custodial sentence that the court should impose upon due conviction of a particular crime.

                  [ I’m fine with the idea that sentencing guidelines are discretionary and not mandatory, although I do support the idea that a departure from the guidelines requires justification from the sentencing court and is reviewed with more exactly scrutiny. ]

                  I’m 98% certain you knew that’s what I meant 🙁

      4. I’m pretty sure that there is more than one rule of society that you are violating right now. You’re just lucky enough to have not been caught or not been prosecuted.

      5. Why, when he’s shown he can’t follow society’s rules?

        Because that’s what prison is for — to separate them from peaceful society to protect the society. In this way you don’t have to string then up for horse thievery, or carve “thief” on their forehead.

        But as a matter of governmental design, I think someone should have at least a theoretical chance of affecting the laws which imprisoned him.

        It’s another small brake on runaway growth in governmental power.

      6. If disfranchisement makes recidivism more likely, why aren’t foreigners or children more likely to commit crimes?

  1. Both foreigners and children have the possibility for future enfranchisement. It’s the permanent and functionally-unappealable status that creates the sense of helplessness and disconnection.

  • A criminal in prison and even on probation is obeying the laws under extraordinary supervision, so the criminal has NOT in fact demonstrated that he can obey the laws like a regular citizen not subject to extraordinary supervision. Therefore, I’d require at a minimum a further probationary period before voting rights are earned back.

    What evidence is there that felon disenfranchisement noticeably increases recidivism?

    Capital punishment for all felonies used to be the rule. Rehabilitation has a relatively low success rate.

  • Do only people who agree with certain rules get a say in whether those rules should exist? It seems to me if someone is opposed to drug possession being a felony, they should be allowed to vote to change that even if they have a felony for drug possession.

    I’d also add that they’re subjected to laws. Government is supposed to be derived from the consent of the governed. They often pay taxes just like everyone else who is governed. If there was a national draft actually implemented, they could be conscripted just like anyone else.

  • However, I would also require nationwide Voter ID. But that’s another issue.

    Requiring an ID to vote does absolutely nothing to prevent vote fraud. Its an additional unnecessary regulation. Whenever someone says this it just tells me they have no idea how an election is actually conducted.

    Vote fraud in this country is extremely rare to non-existent.

    1. “Vote fraud in this country is extremely rare to non-existent.”

      It depends on what you mean by vote fraud.

      Back office ballot box stuffing type fraud has not been so rare, there are numerous documented cases from the 19th century and early 20th century.

      Voter fraud, ineligible persons attempting to vote, attempts to vote more than once or in more than one location, that sort of thing is a different matter. While it is true, that it has been extremely rare for such fraud to be detected and prosecuted, that is not a valid proxy for the true extent of voter fraud.

      In reality, given the way our elections are run, voter fraud is nearly impossible to detect, so the true extent, or lack there of, can not be known with any confidence.

      On the other hand, voter fraud is simply not likely to swing elections. Such fraud committed by individuals is not likely to favor one party over another without an organized campaign of voter fraud, and unless a particular election has a very small pool of eligible voters or the election is expected to be very close, it would require a massive, labor intensive effort to make any difference by voter fraud.

      Voter fraud is largely a non-issue, not because it is rare (it may or may not be), but because it would be exceedingly difficult to organize in a way that will affect election outcomes.

      1. Voter fraud is an issue, however, largely because Republicans and conservatives see it as an opportunity to generate partial cover for partisan and/or bigoted voter suppression efforts.

        1. Just like how Democrats see mass shootings as an opportunity to generate partial cover for partisan and/or bigoted gun ownership suppression efforts.

  • I wonder how many voters are aware of this?

    If you recall in many old movies you often hear that someone has “paid their debt to society” as if all civil rights have been restored.

    It is also interesting to note that the Constitution allows for withholding the right to vote from persons who have participated in “rebellion”.

    While felons serving some form of punishment should not be allowed to vote I don’t think that the right should be permanently taken away, even if as I believe some states require some period after completion of a sentence before restoring the right.

    1. In Florida, a lot of voters are aware of this.

      The State routinely purges voter rolls based on felonies and they’ve done it in the past using very broad name searches so that large numbers of false positives end up turned away at the polls. Large numbers of mostly non-white, non-GOP voters, to be blunt.

      This made the news for quite a few years when I was still a resident of Florida. You’d have to have your head in the sand to not know about it there.

  • A good reason to deny them the right to vote is that they will make worse decisions than other people. They are less virtuous, and probably less smart, and thus excluding them is a clear way to get better people elected.

    1. In other words, more likely to vote for Democrats.

      1. ARWP: I know you meant this as a dig on Democrats, but you’ve accidentally hit the nail on the head. Purging the voter rolls of felons, who are statistically more likely to be a member of a minority and vote Democrat, improves the chances for the GOP candidates in Florida.

        1. I didn’t accidentally hit the nail on the head. Democrats win elections by promising free stuff to people who are financial or cultural parasites. Felons are a subset of this, and should not be allowed to vote.

          1. Just out of curiosity, who else are parasites who shouldn’t be allowed to vote?

            1. Anyone who does not pay federal income taxes, anyone who receives EITC, TANF, WIC or Medicaid. Government employees (except for the military).

              1. Have you mellowed on your desire to disenfranchise women?

                1. Well, presumably stay at home moms don’t count as people who pay income taxes, and are therefore already covered by his previous comment.

                  I wonder, though, why he mentioned Medicaid but not Medicare. Why do old people get to vote even though they don’t contribute anything to society? Surely they are parasites too?

                  (Also, why exempt the military from the ban on government employees voting? This stuff is fascinating.)

                  1. Why do right-wingers never add those who inherit their holdings to the list of ostensible “parasites?”

                    Why do they not include ostensible adults who believe fairy tales to be true among those who “make worse decisions?”

                    Other than the obvious reasons . . .

                    Carry on, clingers. Watching society continue to progress despite and against your preferences and efforts, of course.

    2. Good point. Let’s also deny the right to vote to anyone who flunked out of high school!

      1. Works for me!

        1. You understand that this incentivizes liberal principals to flunk out conservative students and vice versa?

          1. Conservatives shouldn’t allow their children to be educated by liberals in the first place.

            1. By all means, goobers, send your children to backwater, right-wing religious schools (Liberty, Hillsdale, Biola, Franciscan, Wheaton, and a hundred others) while your betters choose strong, liberal-libertarian colleges and universities (Berkeley, Wellesley, Yale, Penn, Harvard, and dozens of others).

              Reject reason-based, liberal, science-based education, and embrace the censorship-shackled, conservative-controlled campuses that suppress history and science to flatter dogma and superstition.

              That way, my children will have the same opportunity I did — to prosper by competing economically against half-educated, superstitious, intolerant, backward, belligerently ignorant yahoos.

              Thank you.

              1. Who are you arguing with? You keep responding to me with these bizarre rants even when I agree with you.

      2. Seems like a good idea. Why would you anticipate giving decisionmaking power to high-school dropouts would improve outcomes?

        1. Why would you think that improving outcomes is the appropriate test?

          1. Because democracy is merely a decisionmaking tool. If it doesn’t produce desirable outcomes it should be modified or abandoned.

            1. Why do you think “desirable outcomes” is an objective standard?

              1. Because I’m not a moron.

            2. Wow. Someone sure drank the Ayn Rand kool-aid…

              1. So you deny that it’s possible to evaluate the health and prosperity of a society? I can’t imagine how much pearl clutching you must have done regarding the recent “shithole” episode.

                But thanks for illustrating my point: if we are to have a democracy, people like you shouldn’t be voting.

                1. I wonder whether Mr. Sappwood is ready to rescind voting rights among the half-educated, diffusely bigoted, superstitious, aggressively ignorant, disaffected, backward, economically inadequate, backwaters-inhabiting, gullible citizens who constitute an indispensable pillar of the current Republican-conservative electoral coalition.

                  1. I already gave you an answer to this question in our exchange below: Yes.

      3. Shucks, deny everyone except me.

    3. Yes. Largely, the same reasoning behind literacy tests.

      You may now begin your argument about how trouble reading is a “good reason” to deny the vote (I might not even disagree with you). You might go further by arguing that voting should require, at minimum, a degree from a major, research university in a “hard” major. Or perhaps a law degree.

      1. Yes, literacy tests and educational requirements would also be improvements.

        1. ‘Do you accept evolution (and gravity)?’

          ‘Do you believe fairy tales (Mother Goose, the Bible, Brothers Grimm, Christianity) are true?’

          ‘Was Pres. Obama born in Hawaii?’

          ‘Has it been established that millions of illegal votes were cast in a recent election?’

          ‘Was Pizzagate a hoax believed solely by stupid people?’

          ‘Did a man ever live in a fish?’

          ‘Is the moon made of green cheese?’

          ‘Did the government intend or attempt to invade Texas in a operation named Jade Helm?’

          ‘Did Russia hack Democrats’ emails to try to promote the Trump candidacy?’

          ‘Was Barack Obama born in Kenya?’

          ‘Have you ever attended a ‘rasslin match, NASCAR race, or rattlesnake-juggling exhibition?’

          . . . the ‘are you fit to vote’ test essentially writes itself!

          1. Yes. It’s absurd to let stupid people vote. I agree.

            1. How would elective positions in West Virginia, Alabama, Oklahoma, Mississippi, Wyoming, and South Carolina be filled — by pulling random names from a Hardee’s bag or a Klan hood?

  • Unless liberals similarly advocate for a removal of the lifetime ban on owning firearms for anyone convicted of a felony or domestic violence misdemeanor (even 40 years before), this comes off as unprincipled self interest.

    1. I’m afraid you’re going to have to clarify that one for me. What’s the equivalent of a violent felon re-offending and shooting someone in this scenario?

      1. Voting for an evil, anti-American person like Obama or Hillary.

        1. Ah, voting for someone you disagree with. Gotcha.

          1. Given that the Democrats platform is to seize the wealth of better people and to flood America with unassimilable third world immigrants in order to gain power, describing it as “evil” seems apt.

        2. Would it affect your opinion to know that lower-education Americans (presumably including many convicted felons) were more likely to vote for Trump than people with a college degree?

          http://fivethirtyeight.com/fea…..for-trump/

          1. Except that high school dropouts were much more likely to vote for Hillary.

            1. …and you know this how?

          2. I’ve been remiss on this myself, but I consider it a courtesy to conservatives not to engage ARWP, because he’s a cartoonish parody of even the most extreme actual people here.

            1. Reject political correctness and soft bigotry. That guy is a more apt representative of the current Republican-conservative electoral coalition than you understand, or perhaps more than you are prepared to acknowledge. I sense you live in a successful, modern, reason-based community. Perhaps you, like too many of the residents of my current neighborhood, are insufficiently familiar with the intolerance, ignorance, superstition, disaffectedness, economic inadequacy, and general backwardness of today’s conservative base.

              1. And, speaking of “cartoonish parodies of even the most extreme actual people here.”

                Right on cue Artie.

          3. Stop feeding the troll.

            1. Yes. Both of them.

              1. Yes, both of them.

          4. It would cause me to favor disfranchising college grads.

      2. The problem there is that while depriving a violent offender of the right to keep and bear arms might be justified on the grounds of public safety, that argument is unavailing when it comes to nonviolent offenses. Is someone convicted of income tax evasion significantly more likely to use a firearm in the commission of a violent felony than the general public? How about Dnesh D’Sousa, convicted of contributing too much money to a friend of his running for office? Gen. Flynn for maybe lying to the FBI, or just not remembering that well? (Who were probably lying to him). Etc.

        1. Seems like a sound argument to me. (And I assume the NRA are already making it.)

        2. I have no problem with your argument.

        3. Gen. Flynn for maybe lying to the FBI, or just not remembering that well?

          Defenders of Gen. Flynn are among my favorite current wingnuts.

      3. I don’t think anyone is talking about “violent offenders re-offending and shooting” someone. Writer is discussing the disjuncture between a violent offender getting the vote back, but a person with even a misdemeanor conviction never getting back the right to bear arms.

        Here are a few reasons that firearm ownership will be denied: (a) the potential buyer has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year; (b) having been a citizen of the U.S., has renounced U.S. citizenship; (c) has been convicted in any court of a misdemeanor crime of domestic violence.

        http://graphics.wsj.com/gun-check-explainer/

        I’m personally taken with the misdemeanor domestic assault bar. If a man slaps his wife during an altercation and pleads to or is convicted of domestic abuse, he can never, ever own a firearm, even if he’s never had any other problems with her or the law, and they are still living together happily, 40 years later, and they help raise their great-grandchildren together. Seems excessive, but it’s the law.

    2. I would agree there. The right to keep and bear arms is enumerated in the 2nd Amdt. of the Bill of Rights. There are provisions in the Constitution for removal of the right to vote, and what happens if that is done, but there really aren’t any provisions that specifically allow for the removal to keep and bear arms – rather there is a strict prohibition against it.

      1. Firstly, the point of the original post was to raise a question about what it *ought to* say in the Constitution, not about what it actually says.

        Secondly, the right to keep and bear arms is enumerated, as is the right to free speech, but in neither case does the Constitution say anything about the scope of that right.

        1. No but it does explicitly say that it cannot be infringed. And in the case of the 1st Amendment it is an absolute prohibition on Congress.

          That lawyers and people in power have changed the discussion for a prohibition on government to a “defining limits of the people’s rights” shows that they really are not really about limited government.

          1. I agree. Shame on Congress for not letting law-abiding American citizens own nukes!

            https://www.law.cornell.edu/uscode/text/18/832

            1. reductio ad absurdum

    3. Laws against domestic violence misdemeanants do not go far enough.

      They should be prohibited from marrying, violation of which could be punished by execution.

      1. Even if they recognized the error of their ways, and have not re-offended in decades?

    4. I’ll support removal of a lifetime ban (I think it should be far more tailored), but I’d also point out that, if they can vote, they can also vote to remove the lifetime ban. If they can’t vote, they’re only dependent on the will of others.

  • The author keeps calling the franchise a “fundamental right”?but of course it isn’t. The fundamental rights (not a legal term anyay) are things like personal liberties and due process of law, rights which are held equally by adults and children, citizens and resident aliens. Is Mr. Post suggesting minors and resident aliens also be given the right to vote?

    1. No, he’s saying that denying them the right to vote should survive strict scrutiny.

      1. No, he’s saying that denying them the right to vote should survive strict scrutiny.

        …should not survive strict scrutiny.

  • I believe that anyone who has served their sentence should automatically have all rights restored. Voting, jury duty, gun ownership, all of it. And that would include sex offenders as well. Once the sentence is served that should be the end of it.

    1. And you’re very welcome to your opinion. The question though is – how should such a rule be placed into law. By electing legislators who will legislate it ? Or by leaving judges to discover it from the penumbral regions ?

      The difficulty with route 2 is – what use is your vote if the laws written by the people you get to vote for are overtrumped by the people you don’t get to vote for ?

      1. Yes. That is the problem. And even if it were voted in as law I’m sure a judge somewhere would find a reason to overturn it.

      2. I get your point, Lee, but if we are talking about disenfranchisement the problem is precisely that those disenfranchised do not in fact get to vote for the legislators.

        1. They don’t get to vote for the legislators after their convictions. But up till then they do.

  • “People who commit crimes should be punished. Their punishment can include depriving them of cherished and fundamental rights – that’s the price they pay for criminal behavior. But once it has been paid, the full panoply of their constitutional rights should be restored.”

    But that begs the question. Who says that the price has been paid just because the jail sentence is over? Even then, convicts have to do probation and pay fines or restitution, for example.

    And, in addition, the fact of conviction can be a strong reason to deprive someone of rights even going forward. The Second Amendment gives one the right to bear arms (acc. to the majority in Heller), but if you are convicted of a crime of violence, it is pretty clear the State can take away that right, even for years after you get out of prison.

    The theory of felon disenfranchisement is that a felony is serious breach of societal norms, and thus the person has shown he lacks the basic responsibility to participate in societal decision-making through voting and representative democracy. Nothing at all crazy about it.

    1. I agree with your reasoning but still have a hard time with the ‘forever’ aspect.

      How about we split the difference and say, a felon who has served their time, completed probation, and satisfied all financial obligations (fines, restitution, etc.) can have their voting (actually all) rights restored after an additional 10 (or some amount) years of being a good citizen (paid taxes, drug free, no additional crimes, etc.).

      You figure most felons will spend years/decades in prison, then add on 10 years for them to wait, and they’re not going to be voting much longer anyway.

      1. That works for me. I’m just not cool with them voting the moment they walk out of prison.

      2. Why 10? Why not 5 or 15? If 10 is right, is it right for all crimes? Some crimes?

        1. Why not link it to the maximum sentence for the crime(s) for which they were convicted? For example, the rule could be that after they get out of prison, they lose their right to vote for a period equal to the maximum sentence applicable to the crimes for which they were convicted. Or for the remainder of the maximum sentence (based on the fact that most people don’t get the max) plus 50%, or something like that.

          1. Complicated

    2. The theory of felon disenfranchisement is that a felony is serious breach of societal norms…

      Well, not so much any more.

      Back when these laws were passed a typical felon was someone like John Dillinger. Today it’s more likely someone like Martha Stewart. Or Anthony Brasfield.

      From Florida: http://articles.sun-sentinel.c…..ood-storks

      Man releases heart-shaped balloons romancing his girl, and is arrested for a felony.

    3. Like the case of the fisherman who got a felony sentence for placing lobsters in the wrong color of container (temporarily he claimed). Should such a miscreant be allowed to vote or keep and bear arms? How could the Republic survive?

      1. In other words, felonies today are not what they used to be. Felonies used to be serious crimes.

  • Wait, population size for purposes of determining seats in the House and electoral votes for president are not supposed to count those people who cannot vote? That’s a “shall be reduced” in there, it’s not discretionary.

    Isn’t that a strong argument against the recent SCOTUS ruling that illegal immigrants and noncitizens CAN be counted for those purposes? A state can count noncitizens (who can’t vote), but can’t count citizens who can’t vote because they are convicted felons?

    1. Wait, population size for purposes of determining seats in the House and electoral votes for president are not supposed to count those people who cannot vote?

      Yes and no. It’s written to punish states for not allowing potentially eligible voters to vote, but counts people who couldn’t be eligible to vote. Here’s the relevant passage

      Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

      So, along with jus soli, it’s another screwup of the people who wrote the 14th

      1. So illegal aliens are not denied the right to vote? Surprised me.

        Yes, SCOTUS voted with their hearts, not the Constitution. Not unusual.

  • I certainly agree with the author in spirit and would like to have a better process for felons to reclaim their voting rights. The problem in Virginia was not with what the governor wanted to do — it had exceptionally broad public support, something like 80%, even in these partisan times — but with how he went about doing it. The Virginia Assembly needed to fix the problem, not the governor using auto-signing pens and other stupid tricks.

    I will take exception to one sentence: “States could disenfranchise people for reasons other than their participation in rebellion “or other crime” – e.g., race, or property qualifications -” Say what? Race and property qualifications are hardly “crimes”.

  • I’m a bit surprised no one else has brought this up: US Law is based on British Common Law. While the US Constitution talks about “persons”, recognizing rights of citizens, legal persons (corporations et al), and foreigners, the Common Law only granted rights to citizens. The original meaning of felon was that the person had so offended the social contract that they were no longer considered citizens. At one point that meant if a felon went to the police or the courts they were turned away as they were outside the interest of the law. The US legal tradition has elements of that meaning: a felon loses their right to vote, to bear arms, to serve on a jury, or to be an officer of a corporation (there are more, some forms of licensing I believe are not available to felons as well). I haven’t studied it in depth, but I believe that most states have a discretionary process through which a convict who has completed their sentence and discharged their responsibilities (fines, treatment programs etc etc) can get their rights restored. Here in GA, that power is held by the board of pardons and parole. In many states the governor has a pardon power.

    1. The standard you are referring to (sometimes called civiliter mortuus or ‘civil death’) was an artifact of medieval Europe – and pretty much died out when the rest of medieval practices did. The disenfranchisment standard that we have left can be traced to that practice but both we and the Brits were so far away from it at the time of the Founding that it can no longer be considered part of Common Law.

  • Now here is something I have never seen anyone comment on in this context. The Fourteenth Amendment says:

    But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

    The last clause says that if a State is going to disenfranchise someone, then the proportional basis of the state’s representaton is reduced. IOW, the State has to pay a price — disenfranchise someone, and they don’t count towards your proportional representation.

    This seems like it was meant to negate the infamous 3/5ths clause, whereby Southern states got to play it both ways — enslaved blacks did not get to vote, but they still added to the Southern states’ proportional representation in Congress (by 3/5ths).

    In any case, I have never heard that felony disenfranchisement leads to reduction in State representation. That seems to me like a clear Constitutional problem.

    Anyone know of anyone who discusses this?

    1. Um, you just quoted the very provision that excepts disenfranchisement “for participation in rebellion, or other crime” from the reduction in representation.

      If your state disqualifies men over the age of 21 from the right to vote for not meeting property requirements, or for not paying poll taxes, or for failing literacy tests, or any number of other reasons that you can find in historic laws that existed in the US, then your state loses representation. But if it is for committing a crime, you don’t.

      1. WHOOPS! My bad! You are right, crimes are an exception to that rule!

    2. As I understand it, felony disenfranchisement is excepted from the representation reduction. As Post said, ” . . . . unless the disenfranchisement is for “participation in rebellion” or “other crime,” in which case the State’s numerical basis for its representation is not reduced.”

      This raises the question: What ARE these other situations, which the 14th amendment clearly contemplates a state should be permitted to deny or abridge such rights, provided that the representation is also reduced?

      1. “What ARE these other situations, which the 14th amendment clearly contemplates a state should be permitted to deny or abridge such rights, provided that the representation is also reduced?”

        Well race, color, or previous condition of servitude obviously – all the things that are mentioned in the 15th Amendment ! When the 14th Amendment came into force, there wasn’t a 15th Amendment. Surprisingly enough.

        Incidentally this is also a clue that the “equal protection of the laws” in Section 1 of the 14th Amendment was not an all purpose “all laws must apply to everyone equally” provision, which would cover voting rights too, but only about laws that offer “protection” – eg of life and liberty etc. Hence the need for a 15th Amendment. and in due course, the 19th Amendment.

        1. Dang! Good point. What about today? Could you still in theory limit voting to real property owners, or require literacy tests etc? Even though in practice they would be challenged as being racially motivated, that argument may not always hold.

          1. If Republicans realize their aspiration of delivering the “good old days” in America (which would be quite the feat because those good old days were illusory), plenty of voting rights will be in jeopardy — blacks, women, the poor, the landless.

            We are fortunate in America that those “old days” are never going to return — and that conservative preferences will continue to falter against education, reason, science, tolerance, and progress, as they have throughout my lifetime.

          2. There are court decisions banning literacy tests because they were administered with gross racial bias. In theory an unbiased test would be constitutional, but you’d have quite an uphill fight to get judges to look at the facts of the actual case rather than just at those old precedents – particularly because, as long as black children call doing well in school “acting white” – and think that’s a _bad_ thing – any honest test will fail a higher proportion of blacks.

            Property requirements were pretty much on their way out by the time the 14th Amendment was written. No one worried about their state losing Congressmen because of all the paupers who were disenfranchised. If a state wanted to bring that back (which seems politically very unlikely), I think the main non-political obstacle would be that it would affect blacks and Hispanics disproportionately – courts often consider racially-neutral provisions as invalid if they happen to adversely affect a larger portion of people of color.

            OTOH, removing the right to vote because of nonpayment of taxes is expressly banned by the 24th Amendment. Previous to that, in at least one state (Alabama), in order to disenfranchise most blacks imposed a poll tax that also disenfranchised poor whites – actually more whites than blacks. AFAIK, the provision of the 14th Amendment to reduce their Congressional representation proportionately was not applied, even here.

  • The right to vote is not and cannot be fundamental, because it is the right to exercise sovereign authority, however dilute and indirect it might be. It is inherent in the equality of persons that no one has the natural right to exercise sovereignty over others, however necessary it might be needed for the organization of a civil society.

    Accordingly, the power to exercise sovereignty is a privilege alienable by demonstrating unfitness to wield it, whether as an elector or as a holder of office. One accordingly can be removed and disqualified as an elector by conviction of crime in the court system for the same reasons one can be removed and disqualified as an office-holder by conviction of a crime after impeachment.

    1. I’ll just leave this here (not that I think it will alter your view):

      “Durational residence requirements completely bar from voting all residents not meeting the fixed durational standards. By denying some citizens the right to vote, such laws deprive them of “a fundamental political right, . . . preservative of all rights.” Reynolds v. Sims (1964). There is no need to repeat now the labors undertaken in earlier cases to analyze this right to vote and to explain in detail the judicial role in reviewing state statutes that selectively distribute the franchise. In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction. See, e.g., Evans v. Cornman (1970); Kramer v. Union Free School District No. 15 (1969); Cipriano v. City of Houma (1969); Harper v. Virginia State Board of Elections (1966); Carrington v. Rash (1965); Reynolds v. Sims, supra. This ‘equal right to vote,’ is not absolute; the States have the power to impose voter qualifications, and to regulate access to the franchise in other ways. But, as a general matter, ‘before that right (to vote) can be restricted, the purpose of the restriction and the assertedly overriding interests served by it must meet close constitutional scrutiny.’ (numerous internal citations omitted).

      Dunn v. Blumstein (1972)

  • It’s not all that complicated, to my eye. People who commit crimes should be punished. Their punishment can include depriving them of cherished and fundamental rights? But once it has been paid, the full panoply of their constitutional rights should be restored.

    This is basically disagreeing with Florida as to the appropriate punishment for committing a felony. Currently in Florida it includes a number of years in prison and a lifetime loss of certain rights. The latter punishment has not yet been paid just because they are released from prison.

    Also, it’s not merely a question of punishment. It’s also a judgement as to whether the priorities of convicted felons are likely to be a positive force in society. If the question is whether or not the town should hire additional police is it unreasonable for some people to believe that convicted felons may not be motivated by criteria conducive to their personal safety?

    How difficult is it to avoid committing a felony?

    The conclusion seems inescapable: At least at the time of passage of the 14th Amendment, felon disenfranchisement would not have been deemed a violation of the Equal Protection or Due Process Clause?

    So the author agrees that voter disenfranchisement was not forbidden by the 14th Amendment but he would have the Court declare that it is now forbidden by the 14th Amendment. What criteria allow the Court to change the meaning of an amendment?

    1. I think that is an uncharitable reading of David’s post. I read it to say that portion of Section 2 would not exist if he had written the constitution. His argument is constitutional text aside, he thinks it’s bad policy and that the exception in the constitution is particularly bad policy in light of how we treat other fundamental rights. There is nothing in this post that advocates for the constituinalization of Post’s policy preferences. The only advocacy is that Florida codify his policy preferences in an upcoming initiative.

      1. I think that is an uncharitable reading of David’s post.

        I see what you’re saying. One of the reasons I reached my conclusion was that the author said

        At least at the time of passage of the 14th Amendment, felon disenfranchisement would not have been deemed a violation of the Equal Protection or Due Process Clause?

        This seems to say that the only thing we can say for sure is that “at the time of passage” it would not have been deemed a violation. The author seems to leave open the possibility that at some other point in time the matter might be subject to legitimate dispute. Also, he said:

        Whatever Congress’ views of the constitutionality of State felon disenfranchisement laws were in 1865, in my own personal constitutional universe I like to think that all government action that impinges on truly fundamental rights should be given “strict scrutiny” – and the Court’s unwillingness to do so, for whatever reason, does not relieve us of our obligation as citizens to do so.

        When he talks about “the Court’s unwillingness to do so, for whatever reason” he implies that the matter is not conclusively required by the original understanding, as if there could exist a legitimate constitutional reason to ignore the original understanding but that the Court was “unwilling” to go this route, and that the reason for the Court’s unwillingness is not entirely obvious to the author.

        1. Yes, but does David Post claim to be an originalist ? If he’s a floating constitution merchant, then “times have moved on” is good enough.

    2. re: “How difficult is it to avoid committing a felony?”

      You might have been able to avoid it back when the 14th Amendment was written but these days it’s pretty close to impossible.

  • Post writes: “The numbers from Florida are particularly appalling.”

    Funny how perspectives vary.

    One person might be appalled at the staggering numbers of heinous and often brutally violent crimes being committed, and the number of their perpetrators residing in FL!

    Another person is appalled at the number of such persons being disqualified from having a say in government representation and policy.

    Of course, this argument that once a punishment/price for violating the law “has been paid, the full panoply of their constitutional rights should be restored” is just so much soft headed liberal gobbledy gook. 🙂 It assumes its conclusion by asserting that the price has indeed been paid, when in fact under the current law, the price is actually permanent deprivation of voting rights.

    I will say — I would rather permit felon voting and bar voting by current recipients of welfare.

    1. Another person might actually look at the statistics (such as those posted by the FBI each year) and realize that the “staggering numbers” are in fact declining, have been declining for a long time and have been declining despite rather than because of our ‘tough on crime’ laws.

      1. And one might also look at the “staggering numbers of heinous” crimes such as importing lobsters in the wrong package, or whatever Martha Stewart did. Those were federal felonies malum prohibitum. I don’t pay much attention to Florida, but I suspect that to get as many felony convictions as they do, they must have laws even sillier than the federal ones.

  • Post : voting, it turns out, is different from other fundamental rights. ?..Whatever Congress’ views of the constitutionality of State felon disenfranchisement laws were in 1865, in my own personal constitutional universe I like to think that all government action that impinges on truly fundamental rights should be given “strict scrutiny”

    And that’s where you’re going off the rails. The right to vote is not a fundamental right like others. It isn’t even a fundamental right at all, it’s a procedural right. Your fundamental rights are your natural liberties ? the liberties to do what you want, except to the extent that you infringe other people’s equal liberties. These liberties could (in theory) be secured by an absolute monarchy, with no citizens having even the slightest say in the actions of government.

    Political rights are secondary constructions because actual rather than ideal governments are corrupt and will infringe your natural liberties. So the people need to control the government. And government’s powers need to be separated. And courts need to follow the law. And all that stuff. But the panoply of structures designed to keep the government honest, and obedient to the people, including political rights, doesn’t consist of fundamental rights, it attempts to secure them.

    1. This is obvious in terms of constitutional principles – not just from Section 2 of the 14th Amendment, but from the fact that it took a constitutional amendment to give people votes for the Senate, and that even now people only get votes for the Presidency if state legislatures choose to give them one. Voting rights are, in constitutional terms, very useful tools for securing natural liberty. They are procedural rights, not fundamental ones.

      1. Indeed. The modern obsession with Democracy (a Wilsonian ideal) confuses a means with an end. The true goal is liberty & security. Democracy that results in a police state, a religious theocracy, juntas, etc is not a good. Thus, it is the responsibility of responsible governments and persons within responsible countries to ensure that voters in a democratic system are virtuous.

        1. Right, you’ve put your finger right on it. Thiel and other like-minded libertarians oppose democratic forms of government primarily because it doesn’t ensure that the right people – i.e., themselves – control the outcome. Much better to advocate for a “libertarianism” created by and for the “right people,” whoever they deems themselves to be.

          This style of “libertarianism” is just authoritarianism in another guise. Freedom for some, the rest be damned.

          1. A confusion of concepts. Libertarianism and authoritarianism describe different outputs of government – what you the citizen are allowed or not allowed to do unmolested. Which people carry out the government’s tasks, and decide what those tasks are, are different questions for which the relevant words are democracy, dictatorship, oligarchy, monarchy and so on. So it’s quite possible to have a libertarian dictatorship. There’s an unelected ruler, who just doesn’t make very many rules. And you can have an authoritarian democracy – a government elected by the people which makes a ton of rules.

            The American system is predicated on the belief that liberty is the fundamental value and that the purpose of government is to secure it. And that the appropriate structure of government to do that securing is one of strictly limited powers, with those powers carefully separated between legislature, executive and judiciary, between the federal government and the States, and sustained by the consent of the people.

            The framers were well aware of the potential for a clash between democracy and liberty, which is why they hedged democracy about with all sorts of checks and balances. But they were equally aware that a government that did not have the consent of the people had a natural tendency to tyranny.

            1. The American system…

              I’m not talking about the American system, Linda. I’m talking about whether the “right to vote” is fundamental to any libertarian conception of the state. I think it is, and you don’t, but you haven’t explained why not.

              1. The libertarian conception of the state is a state which secures liberty. This is obviously an ideal conception, so a state which attempts to, and is reasonably successful at, securing liberty is consistent with the ideal conception. How best to achieve the approach to such an ideal is a matter of practicality.

                The question is not why I think the right to vote is not fundamental to this libertarian conception, but why anyone might think it is. The right to vote is, as I have explained at tedious length already, merely one of a collection of useful tools designed to create and sustain a liberty-securing government. How can a tool be a fundamental right ? A tool is a thing you use to achieve some purpose, not a purpose in its own right.

                1. The libertarian conception of the state is a state which secures liberty.

                  How is state authority justified, on this view?

                  The right to vote is, as I have explained at tedious length already, merely one of a collection of useful tools designed to create and sustain a liberty-securing government.

                  But you haven’t defended this assertion. If the authority of an “ideal” libertarian state derives from the consent of the governed, then the “right to vote” is inescapably a fundamental right of such a state. The question is why, on your account, a libertarian dictator would be just as entitled to rule as a libertarian elected government.

                  1. How is state authority justified, on this view?

                    By its success in securing liberty, obviously.

                    If the authority of an “ideal” libertarian state derives from the consent of the governed, then the “right to vote” is inescapably a fundamental right of such a state.

                    But it doesn’t so derive. For roughly the fourteenth time.

                    The question is why, on your account, a libertarian dictator would be just as entitled to rule as a libertarian elected government.

                    By his success in securing liberty, obviously.

                    You seem to have a bit of a bee in your bonnet about the necessity of some justification for the authority of government, aside from its effects. Which if taken to its logical conclusion necessarily sets up a clash between the primacy of the constitutional justification and the evaluation of the effects. I am showing you how to avoid such a conflict. Don’t erect a justification for the constitutional order separate from its effects.

                    1. I am showing you how to avoid such a conflict.

                      The only way you’ve “shown” this is by ignoring it.

                    2. Simon, I believe an issue the two of you are having is that you believe in popular sovereignty, social contract, or a similar theory of political authority.

                      I (I suspect Mr. Moore) am skeptical of popular sovereignty because it is not self consistent and does not actually justify most of the rules people attempt to use it to justify. Scholars such as Randy Barnett and Michael Huemer have recently described in great detail the inconsistencies with social contract theory and its related theories of political authority.

                      Even Rousseau’s contemporaries like David Hume recognized that it was an ad hoc justification of a form of government that was hastily assembled to substitute for the “divine right” claims made by kings.

                    3. Simon, I believe an issue the two of you are having is that you believe in popular sovereignty, social contract, or a similar theory of political authority.

                      No, you’re mistaken. While I might believe a contractarian solution is the most attractive one for a libertarian political philosophy, I’m happy to acknowledge that Lee Moore himself may not subscribe to one. I am asking him, then, to supply the philosophical basis for the various claims he’s made. He has so far failed to do so. That is the issue.

                      Scholars such as Randy Barnett and Michael Huemer have recently described in great detail the inconsistencies with social contract theory and its related theories of political authority.

                      Barnett is a self-promoting hack. Citing Huemer here reflects, I suspect, a misunderstanding of the import of his approach for this conversation.

                      Even ef we reject contractarianism, the problem still remains: How does the libertarian account for the authority of the state (including limitations on that authority)? If we were to say (following Huemer) that the state has no “authority” as such, then the question becomes instead: how does the libertarian account for the authority’ of the state, where authority’ means some concededly unjustifiable exercise of power that we for argument’s sake take as acceptable?

                    4. I think the principled person who does not believe in social contract theory, but is not an anarchist, believes that government is the least bad current option. Personally I accept that there is no morally rigorous justification for government besides fear of anarchy, and I am fine with that.

                      Similarly, I am fine with the fact that we are a republic that democratically elects representatives because I understand that it is the least-bad system we currently know about for preserving safety and liberty. But at the same time I have a fear of unfettered democracy, so I am in favor of containing it and pruning bad branches, etc.

    2. The right to vote is not a fundamental right like others.

      It’s fascinating to see so many “libertarians” arguing themselves into supporting authoritarianism. I mean, good luck with that.

      I might generally concede that the “right to vote” is not a “fundamental right” as a matter of positive law, but philosophically speaking I am not sure how any libertarian makes a case for the justified authority of government – or limitations on that authority – without some link to the consent of the governed, i.e., democratic processes and accountability.

      Essentially about half of the commenters here are making the case that democracy is a means only to an end, namely the protection of liberty, so that they are agnostic on how liberty is precisely secured. But the result is an incoherent political philosophy. Who, then, has the authority to govern? He who does not? That is, he who seizes a monopoly of force in order to use it least?

      It just doesn’t work. This libertarian view flips libertarianism on its head, making us all serfs subject to the will of a sovereign we can only hope will be benevolent. No, libertarianism must be founded upon the fundamental view that we, first of all, have a fundamental dignity and autonomy over our lives that extends to having a say in how our lives are to be governed. The “right to vote” is a natural corollary from this.

      1. These folks aren’t libertarians. They are movement conservatives who for some reason are defensive about being known as right-wingers, so they don unconvincing libertarian drag and masquerade as libertarians at the Volokh Conspiracy, which is something of a social club for faux libertarians.

      2. they are agnostic on how liberty is precisely secured. But the result is an incoherent political philosophy. Who, then, has the authority to govern? He who does not? That is, he who seizes a monopoly of force in order to use it least?

        Still confused. The person with authority to govern is that group of persons who the established constitutional order throws up to govern if and to the extent that that authority is exercised to secure liberty. To the extent that it is exercised to infringe liberty, the authority dissolves, notwithstanding the constitutional order.

        I think you’re also confused about what sort things a government designed to secure liberty does. And the answer is not “use force least.” The government should use plenty of force to punish people who infringe other people’s liberty.

        1. Still confused. The person with authority to govern is that group of persons who the established constitutional order throws up to govern if and to the extent that that authority is exercised to secure liberty.

          No, this doesn’t work. What authority does the presumed “constitutional order” have? You’ve completely misunderstood the question, even while you are correct about my misuse of the term “authoritarian.”

          I think you’re also confused about what sort things a government designed to secure liberty does. And the answer is not “use force least.” The government should use plenty of force to punish people who infringe other people’s liberty.

          The terminology was obviously colloquial, drawing on famous libertarian tropes about the role of government. The underlying point remains: a libertarian dictatorship is incoherent, as a matter of political philosophy.

          1. What authority does the presumed “constitutional order” have?

            I’m not sure whether you mean

            (a) what is the extent of the authority of the constitutional order, or
            (b) what is the source of the authority of the constitutional order

            The answer to (a) is obviously – “as far as is reasonably required to secure liberty”
            The answers to (b) are legion. From the libertarian point of view the answer is “it really doesn’t matter, so long as it does its job.” For others the answer may be “from God”, “from the consent of the governed”, “from the teachings of the Great Sage”, “from the commands of our ancestors”, “from ME for I am THE ONE” und so weiter.

            I suppose, if you insist, you could reword the libertarian answer from “who cares” to “from natural law”

            It follows that there are lots of different constitutional structures that could be adequately authorised for the libertarian. The interesting question, of course, is which ones can be brought into being in the real world. Which is a world in which most people do not accept that the purpose of and justification for government is to secure liberty.

            1. From the libertarian point of view the answer is “it really doesn’t matter, so long as it does its job.”

              Which just begs the question and so the whole thing collapses on itself.

              I suppose, if you insist, you could reword the libertarian answer from “who cares” to “from natural law”

              On what account of natural law? You realize that the word has an established meaning, don’t you?

              1. I don’t understand why you think “it doesn’t matter” collapses on itself.

                You keep on insisting that I must justify the route I choose to get from A to B, on some basis other than that it gets me to B, where I want to go. There are many routes from A to B. None is likely to be perfect, and some will prefer the high road to the low road, and some will prefer to go by sea. But it doesn’t matter, so long as I get to B. A libertarian doesn’t require any justification for the source of authority of the constitutional order other than that it secures liberty. This follows logically from the contrary – that a constitutional order that does not secure liberty has no authority.

                On what account of natural law? You realize that the word has an established meaning, don’t you?

                It has about thirty conflicting meanings as you yourself recognise with your “on what account ?” I use it as shorthand for “not by any design” – ie the authority of the constitutional order derives from its sufficient effects not from its design.

                1. It has about thirty conflicting meanings as you yourself recognise with your “on what account ?” I use it as shorthand for “not by any design” – ie the authority of the constitutional order derives from its sufficient effects not from its design.

                  The problem is that you don’t seem to recognize the substantial nature of the repeated assertion that the authority of any given form of government derives from its “sufficient effects.” You just keep asserting this, as though it’s obvious that the only purpose a government can reasonably be said to have is to “preserve liberty.” But in your hands the assertion might as well be a religious tenet. You don’t define liberty. You don’t describe why authority is justified in this effects-driven way. You don’t even clearly articulate why you keep describing it as being about a “constitutional order” despite the fact that your arguments throughout are clearly just as compatible with any dictatorship or other form of government that provides the “sufficient effects” you’ve summarily declared to be the only relevant test.

                  It has about thirty conflicting meanings as you yourself recognise with your “on what account ?” I use it as shorthand for “not by any design”…

                  Which is pretty much the opposite of what it has meant, on any canonical account.

                  1. The problem is that you don’t seem to recognize the substantial nature of the repeated assertion that the authority of any given form of government derives from its “sufficient effects.”

                    1. no idea what “substantial” is intended to convey in this sentence.
                    2. I have never asserted that “the authority of any given form of government derives from its “sufficient effects.”

                    But I think I’ve now worked out what it is that is confusing you :

                    You just keep asserting this, as though it’s obvious that the only purpose a government can reasonably be said to have is to “preserve liberty.”

                    1. No, it is not even slightly obvious, nor even slightly true. A government can reasonably be said to serve all sorts of purposes apart from preserving liberty.

                      However you expressly wanted to discuss the

                      libertarian conception of the state”

                      Not the democratic conception, the socialist conception, the National Socialist conception, the aristocratic conception, the Marxist conception, the Napoleonic conception, the Byzantine conception and so on. I quite accept that all sorts of possible justifications exist for all sorts of states. But for libertarian states there’s only the one justification ? the securing of liberty. The clue is in the name.

  • David,
    I also hope that Florida voters agree with you that felon disenfranchisement is bad policy. I am also impressed by your acknowledgement that the Constitutional argument against felon disenfranchisement is not strong in light of the language in Section 2 of the 14 Amendment. It can be very difficult sometimes to separate personal beliefs which touch on a constitutional issue from constitutional interpretation itself.

    You may also be interested in attempts at overturning felon disenfranchisement on preemption grounds. The one that comes to my mind is the Farrakhan v. Gregoire cases in the Ninth Circuit. 590 F.3d 989 overruled en banc 623 F.3d 990 (yes, Reinhardt was involved). The challenge was based on the claim that the disenfranchisement law violated the Voting Rights Act.

    Good luck with the sex offender stuff. It’s a uphill battle and unpopular position to argue that convicted sex offenders retain their constitutional rights

    1. “The challenge was based on the claim that the disenfranchisement law violated the Voting Rights Act.”

      That’s an interesting approach, but I wonder if a federal law can preempt a state power specifically recognized in the Constitution.

      1. I don’t see why not, unless the Federal Constitution positively requires the states to do something, one part of the Constitution can surely constrain the way the state performs a function expressly contemplated by another part of the Constitution. And if the Constitution can pre-empt something the states are meant to do, I don’t see why a Federal law passed pursuant to an express authorisation in the Constitution could not.

        1. One constitutional provision regulating how another operates is not really a constraint, it’s all part of the same overall structure. Laws arise out of that structure, but are not a part of it in the same way. The Constitution trumps laws, whether federal or state. Otherwise the Commerce Clause would render the First Amendment a virtual nullity.

  • “punishment can include depriving them of cherished and fundamental rights – that’s the price they pay for criminal behavior. But once it has been paid, the full panoply of their constitutional rights should be restored.”

    But the state can deprive people of some things permanently. The state can execute people. Once the price for criminal behavior has been paid, the criminal is dead and there are no constitutional rights to restore.

    The state can punish someone with life in prison. Again, they pay the price of criminal behavior for the rest of their lives.

    The quoted text assumes that, for all criminals, there will always be a time at which the felon is still alive but all the punishment has been applied.

    The alternative is that PART of the punishment is time in prison, a fine, or whatever and PART of the punishment is permanent deprivation of the right to vote.

    I am not a lawyer, but I don’t see anything problematic with this interpretation, unless there is a constitutional mandate that all punishments be temporary. But that would seem to forbid life in prison or death penalty sentences.

    1. David doesn’t say that interpretation is wrong, he says it is correct. What he is saying is he thinks that clause is unfortunate because it allows for a treatment of voting rights that is otherwise inconsistent with how the constitution usually treats other rights. He is also saying it is bad policy.

      1. But it’s not treating voting right inconsistently with other rights!

        You have the right to liberty, but the legislature can prescribe that the punishment for a particular crime is the loss of liberty for a period of time.

        You have the right to vote, but the legislature can prescribe that the punishment for a a particular crime is the loss of the vote for a period of time.

        What you guys seem to be insisting is that the “period of time” for these two punishments must be coterminous. That is plainly ridiculous. The State of Florida punishes (e.g.) felony robbery with 2-5 years in jail and 99999 years of disenfranchisement.

        1. True, but making disenfranchisement permanent and prison temporary lacks rationality. What is more likely to harm the public: one ill-intentioned voter, or one armed robber released from prison?

  • “People who commit crimes should be punished. Their punishment can include depriving them of cherished and fundamental rights – that’s the price they pay for criminal behavior.”

    Punishment most certainly can include permanent loss of rights. Think of the extreme case: The death penalty. Certainly, one can be hanged for violent crimes like murder, robbery, and rape. If capital punishment is constitutional, so is the lesser punishment of merely having rights restricted for the rest of your life.

    Of course, this clearly depends on the crime. But I would not say as a matter of history or precedent that a permanent loss of liberty or rights is unconstitutional. If you can find a way to bring the dead back then maybe the criminal has paid their debt.

    1. “Certainly, one can be hanged for violent crimes like murder, robbery, and rape.”

      Not generally disagreeing with your overall point, but you /cannot/ be executed for rape or robbery. Not anymore. They can be aggravating circumstances, but that’s it.

      Kennedy v. Louisiana

      Which I think is heinously inconsiderate for a person who has been kidnapped, raped, tortured, and mutilated but has not actually died, who will have to watch the offender accept a mere life sentence. There are some things short of killing that should deprive a person of the right to life.

      1. I think is heinously inconsiderate for a person who has been kidnapped, raped, tortured, and mutilated but has not actually died, who will have to watch the offender accept a mere life sentence

        Even if the attacker had finished them off it’s pretty unlikely that the perp would be executed. If you’re convicted of homicide your chances of actually being executed are microscopic – 1 in 1000.

        1. That’s because less than 1/1000 murders are horrific, most are pretty mundane. Certainly 999/1000 murders are less horrific than “kidnap, rape, torture, mutilation”.

          As well it should be. The death penalty seems appropriate in those rare cases that (yes, subjectively, but still I argue in a quite real way) go far beyond the normal horror of crime. Kennedy v LA seemed like such a case to me.

          1. I do not trust a government devised and operated by humans to be reliable enough to impose death, especially given the caliber of person currently involved in law enforcement, l but I suppose that’s just because of my libertarian perspective. I don’t expect many followers of an authoritarian blog to share my libertarian view.

            1. Troll harder.

      2. The operative words being “not anymore.” Under the original framing of the constitution, permanently denying someone the right to vote as a punishment for a felony is completely constitutional.

  • The more important question is why anyone should be granted the privilege of voting. Voting cannot be, Mr. Post, a “fundamental right”, because one can vote to negatively affect other people’s rights to life liberty, and property.

    1. So then what about guns? Or the right to petition? Those can be used to negatively affect other people’s rights, can’t they?

      1. Allutz : Voting cannot be, Mr. Post, a “fundamental right”, because one can vote to negatively affect other people’s rights to life liberty, and property.

        Sarcastro : “So then what about guns? Or the right to petition? Those can be used to negatively affect other people’s rights, can’t they?”

        A good way to get to the crux of the matter in remarkably few words.

        Guns can indeed be used to infringe other people’s rights to life, liberty and property. But if they are so used then that’s a crime, properly punishable under the law. Your fist’s liberty extends as far as the beginning of my nose, but no further. How does that apply to voting ? If you vote so as to make laws that infringe on other people’s life, liberty and property, then you are misusing your vote. That is a not permissible purpose of voting. Your vote is not an all purpose tool by which you can elect a government to secure whatever you like, it’s a tool with a very limited purpose and a very limited justification, to secure very particular things :

        “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
        That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed “

        1. The unalienable rights comprise life, liberty and the pursuit of happiness. Governments, and in particular governments to which the governed must consent, are instituted to secure those unalienable rights. The right to vote (a mechanism to test the consent of the governed) is no more than a means to secure the unalienable rights. Moreover if those means do not answer to the task :

          “?whenever any Form of Government becomes destructive of these ends, it is the Right of the people to alter or abolish it ”

          other means to secure the unalienable rights are justified. Political rights are subservient to liberty. Fundamental they are not.

        2. The difference is that if someone votes to restrict life. liberty, & property they cannot be held in violation of the law, otherwise their “right” to vote never existed. It is entirely easy to separate the two analogies.

          If I have a gun, I can use it for moral purposes like defense and prevention of tyranny. I can also use it for immoral ends, but then that is punishable conduct.

          However, if I have the right to vote, I MUST also have the right to, as you put it, “misuse” my vote, otherwise the right no vote never existed. Thus, saying you have a “right to vote” is more akin to saying you have a “right to commit arson”, because the essence of this “right” is the ability to choose to abuse it.

          1. No, because the Constitution puts some matters beyond the authority of the legislature. I can vote for a total ban on handgun ownership in Chicago all I want, but I can never have it.

            Sure, it’s not a crime for me to (directly/indirectly) vote for a law that’s struck down. But neither does it take effect.

            This seems like the appropriate balance to me . . .

            1. The Constitution was made by people. Nothing is ever beyond the authority of people. They could’ve made the Constitution come out any way they wanted. Plus, they allowed it to be amended, & it contemplates the possibility of its being dissolved by violent or nonviolent means as well.

              1. You should read Texas v White, the Constitution does not contemplate dissolution.

          2. The right to petition for redress, then. Or the right to hide harmful materiel secure from search and seizure.

            ALL rights involve the analysis that allowing their free use does more good than harm. But none have no burden on the other side of that ledger.

            Liberty is hard. Intellectually and emotionally. Your simple analysis that discards a right because some people might use it ‘wrong’ gets you off way to easily. Do you want the state deciding what voting wrong or immorally means?

        3. If you vote so as to make laws that infringe on other people’s life, liberty and property, then you are misusing your vote. That is a not permissible purpose of voting.

          Unfortunately it is a permissible purpose of voting. Most elections are about whether or not to infringe on certain lives, liberties, etc. So you either allow that, or you don’t have meaningful elections, or none at all.

          This is why I wrote below that if you’re the one in the room who’s holding a gun, you should never allow anyone else to pick a gun off the floor. You know you won’t use your gun for evil (because by definition your own desire can’t be evil, since evil is a matter of judgment, & you’re always judging your own desires, which is what makes them desires), but you don’t know anyone else wouldn’t, so why take chances?

    2. Huh? Someone is going to vote – which is to say someone is going to exercise political power.

      Historically, there have been many cases where there was only one voter, but why does that help you?

      One person can exercise power negatively whether that person is one voter out of millions or the king.

      So unless you favor complete anarchy – under which, by the way, the guys with the most guns are the only voters – your comment doesn’t make much sense.

      1. I do not favor complete anarchy, but I understand that voting and democratic systems are a means towards preserving rights (against the 1 vote tyrant as you aptly pointed out), not the ends themselves.

        As such, restrictions on voting that tend to restrict the franchise to those more likely to responsibly use that power and not for infringement of rights of others is entirely consistent.

  • I registered as a Democrat in 1978. Except for the 6 years I lived out of state, I have voted in every state and local election. I registered Republican when I returned to Florida. I am knowledgeable, educated and informed. I will vote NO on the restoration of rights immediately upon release and end of probation. My concern is the rate of recidivism. Pick a term/number of years after release, if they have not repeated a crime, then there could be a way forward for restoration of rights.

    1. I am an elected and appointed official of the Democratic Party. On behalf of my party, I request that you never again attempt to register as an affiliate of the Democratic Party. Enjoy being a Republican. Thank you.

  • “But once it has been paid, the full panoply of their constitutional rights should be restored. That should be the law”

    Why, other than the aesthetic pleasure of symmetry, should all punishments be co-terminal?

    Or: the debt hasn’t been fully repaid so long as they can’t vote. That’s the period of their punishment.

  • As noted in Richardson v. Ramirez, the Supreme Court upheld the constitutionality of felon disenfranchisement statutes, finding that the practice did not deny equal protection to disenfranchised voters. All states with the exception of Maine and Vermont have some of restriction on voting rights for people who are felons. About 30% of the states allow restoration of voting rights after the prison term has been completed. The remainder of the states have restrictions along the lines of being off parole, payment of fines associated with the crime, payment of court costs, and where specified, payment of restitution costs to victims of the crime. For instance repayment of money lost due to fraud or reimbursing victims for medical costs/lost work due to injuries suffered as a result of the crime. So in this sense, until the costs to the State and the victims have been satisfied, the felon has not fully “paid for his crime” and is not eligible to request restoration of voting rights. In Richardson v. Ramirez, the Court left it to the States to decide what restrictions to apply.

    1. The courts have approved vile seizure-and-forfeiture schemes, too, and regularly play matador to abusive policing. But no libertarian or decent person approves. Faux libertarians favor lifetime disenfranchisement for felons, endorse drug warriors, appease diffuse bigotry, tolerate voter suppression, and approve intolerant and restrictive immigration policies, but genuine libertarians and decent people do not.

  • Do you think that Florida is going to somehow get better govt as a result of felons voting? I don’t.

    1. How would you apply that standard to those who assert that Pres. Obama was born in Kenya, that evolution is a Satanic hoax launched from the pits of hell, or that the Bible is an inerrantly non-fiction work?

      Thank you.

  • I support this reform. But as devil’s advocate, I would point out that several other “fundamental” rights are routinely denied to ex-felons throughout the US. For instance, they may not associate with other ex-felons.

    I suspect strongly that if THAT rule were repealed, a huge number of highly motivated ex-convicts would become free to join or start political efforts to roll back overcriminalization.

    1. Felons may associate with other ex-felons to their heart’s content, once their parole is over. Which is what David Post was talking about: after the felon’s parole is over.

      1. X years in prison, followed by Y years of supervised release, followed by Z years of disenfranchisement, followed by N years of disqualification to own a firearm, followed by M years of disqualification to serve on a jury.

        Let the legislature specify {X,Y,Z,M,N} for each crime (or a range).

  • In most states, the laws let convicted felons get their voting rights back after serving their sentence, which seems a fair adjustment of the competing interests.

    Of course, the convicted felon still isn’t allowed to own a gun. Which means he can wield guns by proxy – by electing public officials who can use force in the name of the law – but cannot own a weapon individually.

  • Well, if they can vote and if they will be able to associate with criminals and ex-criminals and soon-to-be criminals, that certainly qualifies them to run for any political office!

  • What is more shocking is that one in four African-American Floridians have a felony record

    1. Why is that shocking to you? American blacks have an average IQ of 85. I suspect the rate of felonies for white Americans with an IQ of 85 is similar.

  • Regarding the number of people currently not allowed to vote because of the laws under discussion: the fraction of the population under the control of these laws is not a function of the laws themselves. The law doesn’t say that 10% of the population will be chosen at random and have their right to vote taken away. These felons choose themselves – every one is a volunteer. While bemoaning the numbers, the author shows no interest in telling us how small a fraction of the population would be acceptable to him. And so, the actual number is irrelevant to his argument, and it’s use is disingenuous.

    The denial of voting rights is, in these states, a part of existing law. Every citizen is expected to know that when they violate laws and get caught and convicted, they will suffer. And if ‘certain classes’ of people find themselves disenfranchised, then certain classes of people need to stop doing crimes. I can see no constitutional issue here – we’re not pulling off fingernails. If the right to vote can be denied while in prison, then it can be denied after being released. If you don’t like the law, change it – don’t run to Judge Daddy to fix it for you.

    1. How does a guy like this stumble onto a libertarian blog?

      1. There’s nothing “libertarian” about allowing everyone to vote, including people who will vote for non-libertarian principles.

  • I’ll just leave this here, from the ECtHR in Hirst summarising the Supreme Court of Canada’s judgement in Sauv? v. the Attorney General of Canada (no. 2):

    The majority opinion given by McLachlin CJ considered that the right to vote was fundamental to their democracy and the rule of law and could not be lightly set aside. Limits on this right required not deference, but careful examination. The majority found that the Government had failed to identify the particular problems that required denying the right to vote and that the measure did not satisfy the proportionality test, in particular as the Government had failed to establish a rational connection between the denial of the right to vote and its stated objectives.

    http://www.bailii.org/eu/cases/ECHR/2005/681.html

    1. Continuing:

      As regards the objective of promoting civic responsibility and respect for the law, denying penitentiary inmates the right to vote was more likely to send messages that undermined respect for the law and democracy than messages that enhanced those values. The legitimacy of the law and the obligation to obey the law flowed directly from the right of every citizen to vote. To deny prisoners the right to vote was to lose an important means of teaching them democratic values and social responsibility and ran counter to democratic principles of inclusiveness, equality, and citizen participation and was inconsistent with the respect for the dignity of every person that lay at the heart of Canadian democracy and the Charter.

    2. Continuing (2):

      With regard to the second objective of imposing appropriate punishment, it was considered that the Government had offered no credible theory about why it should be allowed to deny a fundamental democratic right as a form of State punishment. Nor could it be regarded as a legitimate form of punishment as it was arbitrary – it was not tailored to the acts and circumstances of the individual offender and bore little relation to the offender’s particular crime – and did not serve a valid criminal-law purpose, as neither the record nor common sense supported the claim that disenfranchisement deterred crime or rehabilitated criminals.

  • If we were starting from scratch, I’d say fine. However, we aren’t. Given the current disfranchised popul’n in Fla., refranchising them would shift election outcomes. If it didn’t, what would be the point? Given how high the stakes are, people would be idiots to play fair in a “game” they’re not allowed to get out of, i.e. democratic gov’t. If you’re the one holding the gun in the room, you should never let anyone else pick one up from the floor.

    If you could be the dictator, would you? (Like, say, a secret dictator, whose every edict magically flowing mentally from you would take effect, w/o anyone’s ever discovering you were the source?) If not, why do you have an opinion about any matter of public policy? Doesn’t your opinion mean, the way you’d want it if you could get it? If you would not willingly dictate, then how serious are you about your opinion? So any Q regarding the details of democracy should be evaluated from the perspective of, “Will it advantage my opinions?”

    Competitive games you play fairly at because that’s the only way it’s fun. This isn’t about fun. You should cheat whenever possible at democracy, because since everything in it’s avowedly a matter of opinion (or it wouldn’t be decided that way), why shouldn’t your opinion rule? So this Q about disfranchisement is a silly one. It’d be a different story if it were about voting rights in a club you could join & quit at will.

    1. You should cheat whenever possible at democracy,…

      Wouldn’t the widespread adoption of this mentality essentially undermine democratic legitimacy and the rule of law? If Floridians come to recognize that the Republicans in that state have so thoroughly stacked the deck against them that their votes and opinions don’t actually matter, what might they then do? Sigh and submit? What would we want them to do?

      I think the franchise should extend exactly as broadly as necessary to ensure that, whatever results from an election, the people to be governed my those elected can respect that outcome and view their leaders as entitled to lead. I have no commitments as to how broad that needs to be – that I view to be an empirical question – but absent evidence to the contrary I think that not “cheating” to the detriment of Democratic or black/latino voters is essential.

      1. Wouldn’t the widespread adoption of this mentality essentially undermine democratic legitimacy and the rule of law?

        Of course, the same as cheating on a truce, which is effectively what this is. But that doesn’t mean you shouldn’t do it. Cheat unto others before they cheat unto you.

        If Floridians come to recognize that the Republicans in that state have so thoroughly stacked the deck against them that their votes and opinions don’t actually matter, what might they then do? Sigh and submit?

        Tyranny’s relatively stable, so that’s probably what they would do. If people submit to a absolute monarchs for a long time, then they’ll submit even longer to a deck that’s stacked somewhat vs. them.

      2. To put it another way, ask Immanuel Kant for advice, then do the opposite. But to the extent you can make it appear you’re following his advice, do make it look that way; no sense giving a sucker in politics an even break.

        I don’t recommend this for most things. Don’t be mean in biz, romance, w friends or just in gen’l. Do be mean when the consequence of the activity could be your downfall, which in politics is possible. Gov’t has the power & propensity to kill you, so if by keeping your gun trained on them you can make sure they don’t pick up that gun, do so. Gov’t makes enemies of us all, so act accordingly.

    2. I am quite pleased that people with Robert’s preferences, arguments, and character lose political debates in America over the long term.

      I give them credit for persistence, though. They have losing throughout my lifetime, and for nearly two centuries before that, yet they continue to advocate backwardness, ignorance, intolerance, superstition, insularity, and ridiculous dogma.

      Carry on, clingers.

  • As others have explained, not only has there been a long history of felony disenfranchisement, but the constitution took a piecemail approach to guaranteeing voting rights to particular groups at a time. In order for Professor Post to be right, large swathes of constitutional text – several complete amendments – would become completely redundant. There would be no point bringing up niceties like canons of construction. If text is irrelevant to ones opinions, then how people construe text is also important.

    I’ll simply bring up the fact that libertarians and the left are not the only people to describe their agenda in terms of rights. Slaveholders famously saw in the constitution a constitutional right to own a slave. Businesspeople saw an absolute freedom to offer ones labor (although, curiously, no freedom to withhold it). Segregationists defended associations rights. Hitler spoke of the injustices done to the German people in World War I and of the right of national self-determination. Anybody can play the rights game, and practically everyone has.

    This history means that if are willing to ignore the constitution’s text and take the Alice-in-Womderland step of saying rights mean anything we say they mean, we have only such rights as a given Supreme Court majority chooses to recognize. Change or pack the SupremeCourt, and no constitutional text need be a barrier to whatever they, and the people appointing them, care to do with us.

    1. Why even pack the Sup. Ct. when you can just pack their secretarial pool? You think these guys read their own documents?

  • Isn’t this a glorious relic from the days when all felonies were capital offenses?

  • There is surely no more fundamental right in a republic than the right to vote

    While voting is certainly a very important right, I disagree that it is the most fundamental. There are many other rights that are more fundamental and more important on a day to day basis. And our relatively low voter participation rate indicates that many people feel the same way.

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