Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments

Richard M. Re

University of California, Los Angeles (UCLA) - School of Law

Christopher M. Re


February 27, 2012

Yale Law Journal, Vol. 121, p. 1584 (2012)

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common intellectual origin refutes recent arguments by academics and judges that the Fifteenth Amendment impliedly repealed the Fourteenth Amendment’s endorsement of criminal disenfranchisement.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.

Number of Pages in PDF File: 87

Keywords: disenfranchisement, Reconstruction, voting rights, felon disenfranchisement, originalism

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Date posted: February 27, 2012 ; Last revised: June 26, 2014

Suggested Citation

Re, Richard M. and Re, Christopher M., Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments (February 27, 2012). Yale Law Journal, Vol. 121, p. 1584 (2012). Available at SSRN: http://ssrn.com/abstract=2012115

Contact Information

Richard M. Re (Contact Author)
University of California, Los Angeles (UCLA) - School of Law ( email )
385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
Christopher M. Re
Independent ( email )
No Address Available
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