I am confused by the line of argument that Eugene is advancing, and I say
this as someone with less than fully developed views on the issue of felon
disenfranchisement. I agree with the post raising doubt about the meaning
of "bad for society", and wonder also what is meant by "moral judgment".
Some people with moral judgment perfectly suited for voting decisions commit
crimes, I would think. For example, an individual convicted of killing a
spouse or partner's lover in a fit of rage might be impassioned about fiscal
discipline, or well-versed in the issues presented by American relationships
to the rest of the world. What does the prior criminal act have to do with
the sort of judgment that we expect from a voter? Now someone might reply
that that judgment must be, at bottom, "moral" judgment, but then the
question is what sort of "moral" judgment, always a highly contestable
question, do we have in mind? How about the citizen who is not a felon, but
who is engaged in perpectual lawsuits over breached contracts, employment
discrimination and other unsavory business practices? Or the one who, also
exposed only to civil liability, habitually fails to pay debts and
obligations, and whose property is encumbered with liens? Why not establish
disqualification on that basis? That voter appeals to me much less--his or
her "judgment" is more suspect--than the ex-felon of my example.
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu]
Sent: Friday, February 11, 2005 10:13 AM
To: Volokh, Eugene; election-law@majordomo.lls.edu
Subject: RE: criminal disenfranchisement
It is difficult for me to embrace the
don't-let-them-cast-votes-that-are-bad-for-society philosophy, given
that what is bad for society is too contestable today and that what has
been considered bad for society historically can often now be considered
indispensable to society, e.g., the notion of equality of citizens.
Indeed, depending on the election, I am not quite sure what a vote that
is bad for society is. Was a vote for Bush bad for society or was a
vote for Kerry bad for society? Or was is the mental process that
someone used to determine his or her vote that makes the vote itself bad
for society?
But even if I embraced the stop-bad-votes-for-society philosophy, I am
unconvinced that the fact of a felony conviction differentiates those
with bad moral judgment from those without bad moral judgment. Of
course, there are plenty of folks without felony convictions who have
bad moral judgment. By the same token, there good reason to believe
that many with felony convictions have good moral judgment, but have
engaged in unlawful or immoral acts.
-Hank
Henry L. Chambers, Jr., Professor of Law
University of Richmond
28 Westhampton Way
Richmond, VA 23173
804-289-8199
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of Volokh,
Eugene
Sent: Thursday, February 10, 2005 6:29 PM
To: election-law@majordomo.lls.edu
Subject: RE: criminal disenfranchisement
My concern isn't that ex-felons might vote to change our laws.
There's nothing wrong with their voting to change our laws.
Rather, it's that they'll cast votes that are bad for society,
because they tend to be people with bad moral judgment. Would you elect
a convicted rapist or robber to the legislature? Probably not, I
suspect, at least unless he's behaved very well for many years since his
conviction. Why not? Not just because he, as a legislator, might vote
to change our laws. Rather, it's because he might cast votes that are
bad for society, because he's a person who has shown himself to have bad
moral judgment. (Of course, you may well make the decision about the
legislator on a case-by-case basis, as a voter; but while that's
possible for screening out legislators who have done bad things, it's
not possible for screening out voters.)
The age analogy is likewise helpful here, too. Why wouldn't we
want 13-year-olds to vote? Not because they'll vote to change our laws,
but again because they'll cast votes that are bad for society, because
they tend to be people with immature moral (and practical) judgment.
The cause of our lack of trust for their judgment is different from the
cause of our lack of trust in the judgment of ex-felons. But in both
instances, we don't want to give people with untrustworthy moral
judgment a role in governing us.
Now of course some people may reveal their bad moral judgment in
other ways, for instance by expressing support for racism or Communism
or what have you. But the Free Speech Clause -- and the quite sound
political theory underlying that clause -- rightly requires us not to
discriminate against these people because of their viewpoints, even
though letting them vote may well be bad for society. Fortunately,
nothing in the Constitution, or in my view in sound political theory
(some of which we've touched on in these threads), bars us from
discriminating against people because of their past felony convictions.
Eugene
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