The Fourteenth Amendment implicitly authorizes state governments to strip criminals of the right to vote. Nearly all state governments have used this power. Only two states (Maine and Vermont) allow convicted felons to vote while they are still in prison. In 10 states felons may permanently lose their right to vote even after they have served their time including parole and probation.
The other 38 states restore voting sooner or later after convicts are released from prison.
Americans often assume that the U.S. Constitution is perfect and everything will be fine if we can just figure out what its language really means. If the Constitution were perfect, however, it would have been an error to have included an amending clause (Article V) in it.
Why allow changes to a perfect document? In fact, an amendment clause would have made an otherwise perfect Constitution imperfect! However our founders never claimed that they had arrived at perfection. During ratification debates, Alexander Hamilton vigorously defended the Constitution he had helped write, but stated that "I never expect to see a perfect work from imperfect man." (Federalist number 85) The Constitution was just the best that was politically possible at the time, he said.
Since the Constitution is imperfect, it includes clauses that should not be there and it would be progress to get rid of them. We eliminated a bad clause in 1933 when the disastrous Prohibition Amendment (Eighteenth) was repealed by the Twenty First Amendment. A continuing imperfection is the requirement that presidents must be "natural born" citizens, which arbitrarily creates two classes of citizens and has excluded distinguished naturalized citizens like Henry Kissinger, Arnold Schwarzenegger, and the late S. I. Hayakawa from consideration by our voters.
Depriving criminals of the vote is a more fundamental problem with the Constitution. What about "government by the people"? What about "no taxation without representation"? Although these expressions are not found in the Constitution, they state important American political values.
As I have often explained, we cannot take "government by the people" literally, but this expression still points to an important idea. Democracy is best understood as government by some people limited by the people via periodic competitive elections. "The people" here must mean the public, since any smaller group would only be some people.
Nobody can be excluded from the public, since if anybody is excluded it is no longer the public. Therefore no citizen — except for children, due to incapacity — must be deprived of the vote for any reason. People in prison are still members of the public and should therefore be allowed to vote.
Since felons and former felons are not exempt from paying taxes, exclusion from voting subjects them to taxation without representation.
The U.S. imprisons a higher percentage of its population than any other country, so voting by prisoners and former prisoners might make a difference in some elections, but we have no reason to assume that it would make a bad difference. It could well make a good difference, since legislators might become more concerned about intolerable conditions in prisons if prisoners could form a bloc seeking to remove them from office.
Perhaps legislators would also become less inclined to enact more and more laws creating opportunities to convict people and would enact only laws that are truly necessary for the public welfare. They might also seek ways other than imprisonment to punish lawbreakers and to discourage lawbreaking.
Reducing the prison population would save money. Some of the savings might be devoted to programs helping people live satisfying lives and make an honest living: schools, apprenticeships, training programs, public works, and the like. In turn, these could produce conditions where there was even less need to incarcerate people.
Although nothing prevents legislatures from ending convict disenfranchisement, putting a complete end to it might require a constitutional amendment. Perhaps this is what it should say:
The right to vote belongs to every member of the public not incapacitated by age. The public includes everybody subject to government's jurisdiction, and no person can be therefore be deprived of the vote because he or she has been convicted of a crime or for any other reason.
Elected politicians enact the laws under which people are imprisoned, so if imprisonment denies people the vote politicians are choosing the electorate instead of the electorate choosing the politicians. This is incompatible with the basic idea of democracy.
Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published 1981 and his most recent book is "The Case of the Racist Choir Conductor: Struggling With America's Original Sin." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. To read more of his reports — Click Here Now.
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