Interclausal Immunity

15 Pages Posted: 15 Nov 2003

Abstract

In Richardson v. Ramirez, decided in 1974, the Supreme Court, speaking through (then just plain) Justice Rehnquist, upheld the practice of approximately half the states of disfranchising convicted felons even after their release from prison, sometimes for life. One might have expected this to be a slam dunk the other way, given voting's status as the quintessential political right and thus a "fundamental interest" requiring strict scrutiny under the Equal Protection Clause, and the evident looseness of the fit between having been convicted of (or pleaded to) a felony, any felony, and any "compelling" reason for taking one's vote away. But actually Rehnquist had a pretty good answer to this, that Section 2 of the very amendment under which the challenge was brought (the Fourteenth), in specifying the sorts of franchise-deprivation for which a state's representation in Congress could lawfully be reduced, explicitly exempted (along with not being male, 21 years of age, or a U.S. citizen) the fact that one had been convicted of a crime.

Suggested Citation

Ely, John Hart, Interclausal Immunity. As published in Virginia Law Review, Vol. 87, pp. 1185-1199, September 2001. Available at SSRN: https://ssrn.com/abstract=301227

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