“Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments”

Richard Re and Christopher Re have posted this draft on SSRN (forthcoming, Yale Law Journal).  Here is the abstract:

The Reconstruction Amendments are justly celebrated for transforming millions of recent slaves into voting citizens. Yet this legacy of egalitarian enfranchisement had a flip side. In arguing that voting laws should not discriminate on the basis of morally insignificant statuses, such as race, supporters of the Reconstruction Amendments emphasized the legitimacy of retributive disenfranchisement as a punishment for immoral actions, such as crimes. Former slaves were not just compared with virtuous military veterans, as commentators have long observed, but were also contrasted with immoral criminals. The mutually supportive relationship between egalitarian enfranchisement and punitive disenfranchisement — between voting and vice — motivated and shaped all three Reconstruction Amendments. Counterintuitively, the constitutional entrenchment of criminal disenfranchisement facilitated the enfranchisement of black Americans. This conclusion complicates the conventional understanding of how and why voting rights expanded in the Reconstruction era.

Criminal disenfranchisement’s previously overlooked constitutional history illuminates four contemporary legal debates. First, the connection between voting and vice provides new support for the Supreme Court’s thoroughly criticized holding that the Constitution endorses criminal disenfranchisement. Second, Reconstruction history suggests that the Constitution’s endorsement of criminal disenfranchisement extends only to serious crimes. For that reason, disenfranchisement for minor criminal offenses, such as misdemeanors, may be unconstitutional. Third, the Reconstruction Amendments’ common intellectual origin refutes recent arguments by academics and judges that the Fifteenth Amendment impliedly repealed the Fourteenth Amendment’s endorsement of criminal disenfranchisement. Finally, the historical relationship between voting and vice suggests that felon disenfranchisement is specially protected from federal regulation but not categorically immune to challenge under the Voting Rights Act.

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