On Felon Disenfranchisement
In the states of Maine and Vermont, felons never lose the right to vote. Incarcerated convicts remain free to flex their civic muscles, even if they are limited in flexing others by the rules and regulations of prison.
This context dampens slightly the supposed radicalism of Sen. Bernie Sanders’ (I-VT) CNN town hall remarks in favor of allowing those serving jail sentences to vote, which stunned the self-appointed vanguards of public morality in the cable news commentary class.
But is Sanders’ comment really so radical? Voting, after all, is a fundamental right of American citizens. The cornerstone of American political thought is the principle that no actor, be it a private citizen or a duly elected public official, may infringe upon the innately-held rights of sovereign individuals. Those who are tried, convicted and sent to prison face punishment for transgressing the rights of another. Yet, even in their guilt, they are entitled to protections that secure their own rights.
If voting is a right, how then can a pronouncement of criminal guilt — a condemnation not of a person’s entire state of being, but of a particular act that offends a particular law in a particular way — justifiably infringe upon that right?
Maine and Vermont, admittedly, are outliers in their laissez-faire attitude towards felons’ voting rights. The 48 remaining states all bar felons from voting while they serve their jail sentences, but most restore that right either following the completion of that sentence or following parole. A handful of states permanently revoke the rights of felons who have committed particularly heinous crimes, like rape or murder.
The National Conference of State Legislatures lays out the four broad categories into which state policies on felon voting rights fall:
This variance in states’ treatment of voting rights is a testament to the robustness of federalism. But it is also explained partially explained by the Constitution. Article I stipulates that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”
States, on account of their sovereignty, have the requisite authority to control their elections. But that doesn’t mean states have the authority to set laws that trample on individual rights. The Fourteenth Amendment states:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state 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.”
The Supreme Court has drawn on the Privileges and Immunities Clause and the Equal Protection Clause to side against laws that appear to abrogate individual voting rights through discrimination. It has however, upheld felon disenfranchisement using Section II of the Fourteenth Amendment, which notes makes mention of voting rights being denied by states on the basis of an individual’s participation “in rebellion, or other crime.”
Why can voting rights be revoked? Because voting is a civil, rather than a natural, right. The language of state criminal code statutes that deals with felons voting is rife with talk of civil rights. For instance, Kentucky — a state that does not automatically restore rights even upon completion of parole — dictates the following in its Constitution: “Persons convicted of treason, or felony, or bribery in an election, or of such high misdemeanor as the General Assembly may declare shall operate as an exclusion from the right of suffrage, but persons hereby excluded may be restored to their civil rights by executive pardon” (KY Const. § 145).
Whereas natural rights cannot be infringed without causing injury to the individual who holds them, civil rights may be revoked, arguably, because they depend upon the existence of an entity outside from the individual. Natural rights are absolute in nature because they refer to capacities man possess autonomously. The right to speech, for example, is dependent upon internal capacities belonging to man: the rational processes of his mind and the operations of his conscience. When speech is infringed, it involves one actor interfering with the internal processes of another. This is a boundary that cannot justifiably be crossed. Such an act cannot be characterized as anything other than an act of aggression, an act in which the offensive actor gains directly at the expense of another.
Civil rights, because they deal with society, involve the brokerage of deals between men. Civil rights are a form of contract. And contracts can be revoked if one party violates their terms. They are not rights in the same sense as are natural rights.
In Rights of Man, Thomas Paine provides perhaps the best explanation of this distinction:
“Man did not enter into society to become worse than he was before, but to have those rights better secured. His natural rights are the foundation of all his civil rights…Natural rights are those which appertain to man in right of his existence. Of this kind are the intellectual rights, or rights of the mind, and also all those rights of acting as an individual for his own comfort and happiness, which are not injurious to the natural rights of others. Civil rights are those which appertain to man in right of his being a member of society. Every civil right has for its foundation some natural right pre-existing in the individual, but to which his individual power is not, in all cases, sufficiently competent. Of this kind are all those which relate to security and protection.”
But Paine raises an interesting point. A civil right is a natural right exchanged: man does not lose his natural rights when he enters into the contract of society, but exchanges some of his autonomy for the security of knowing his grievances will be redressed. For example, man agrees to abide by the laws of society upon his sovereign property in order that any who trespass upon it will be held legally accountable by authority. He does not have the guarantee that justice would be done in an anarchic state.
In the spirit of Paine, we must ask the following question: what is the natural right upon which the civil right to vote is based?
It conceivably is a number of things, such as an extension of the right of self-rule. America’s system of representation, after all, charges elected officials with pursuing policies that secure the interests of their constituents. Revoking the right to vote revokes the ability to help determine the rules which govern the self. By a similar rationale, it might also be an extension of the right of conscience. The funds that pay for federal policies come from taxes assessed against individuals. Revoking an individual’s right to influence legislative decisions asks citizens to subsidize initiatives in which they have had no say, which might conceivably be called “taxation without representation.”
Felon disenfranchisement has been justified on the grounds that voting is a civil right, which is not an innate right, but conditional upon the terms set by society. But other forms of disenfranchisement have been deemed unconstitutional because revoking the right to vote infringes on an underlying natural right.
If felon disenfranchisement infringes in any way upon these rights, it too ought to be considered unconstitutional.
But there are philosophic as well as political arguments that underlie this issue. The federal government is limited in its scope; so too are the state governments. These limitations are dictated by an overriding respect for individual liberties. The judicial system’s power is similarly limited. A judgment of criminal guilt condemns a particular action that has violated a particular law in a particular way. It does not condemn a person’s entire being. Felon disenfranchisement seems to fly in the face of this idea of limitation and give government wholesale authority to render judgment on a citizen’s fitness. Making rights contingent upon good behavior is a characteristic of authoritarian countries; China’s social credit score system springs to mind as a recent example of this type of despotic behavior.
Particularly for states that do not automatically restore voting rights to felons but require the assent of a political figure to restore civic liberties, this practice would seem to encourage the notion that government officials have the authority to pass judgment upon the conduct of citizens and punish those of whose conduct they disapprove.
And if this is the case, so-called “civic rights” are not rights at all, but privileges individuals hold at the discretion of their political masters. Paine’s idea — that civic liberties are derived from a specific natural liberty — is here turned on its head. As Paine noted, man enters society with the expectation the state will work for his security; he does not enter society with the expectation he will be worse off for this transition. Yet, if civic rights can be revoked, without regard for what this does to the natural right that grounds them, man is very much the worse for the bargain. Civic liberties can be no more conditional than can natural ones. Felons ought to have the right to vote, even while serving prison sentences. Disenfranchisement is overly broad, whereas verdicts of criminal guilt are narrow and targeted. Wholesale repudiation of civic rights is a punishment that does not fit the crime.
