Tag Archives: Fourteenth Amendment

Five Million Disenfranchised Americans

Next year, 5 million Americans will not be allowed to vote because of a past criminal conviction. Nearly 4 million of them are not in prison, yet they stay disenfranchised.

States vary on when they restore voting rights after a conviction. Maine and Vermont do not disenfranchise people with convictions; even prisoners may vote. People with felony convictions in Florida, Iowa, Kentucky and Virginia are disenfranchised for life, unless granted clemency by the governor. The rest of the country falls somewhere between.

In the late 1800s, criminal disenfranchisement laws spread as part of a backlash against the Reconstruction Amendments – the Thirteenth, Fourteenth and Fifteenth Amendments – that ended slavery, granted equal citizenship to freed slaves, and prohibited racial discrimination in voting. The disenfranchisement laws were employed alongside poll taxes and literacy tests as part of an effort to design ostensibly race neutral laws (that were, in fact, intentional barriers to African-American voting). Twenty-seven states enacted laws restricting the voting rights of people with criminal convictions.

During the Virginia Constitutional Convention of 1901, delegate Carter Glass described the suffrage proposal which included felony disenfranchisement as a plan that would “eliminate the darkey as a political factor in this state in less than five years.”

In New York, African-American suffrage was the subject of much debate at the 1821 and 1846 constitutional conventions. New York delegate Samuel Young implored: “Look to your jails and penitentiaries. By whom are they filled? By the very race whom it is now proposed to clothe with the power of deciding upon your political rights.”

When states enacted criminal disenfranchisement laws, they expanded criminal codes to punish offenses they believed targeted recently freed slaves. In an 1896 decision, Ratliff v. Beale, the Mississippi Supreme Court confirmed that the state constitution narrowed the disenfranchisement provision to target certain crimes such as theft, perjury, forgery, and bigamy, of which blacks were more often convicted. Today, Mississippi’s constitution still denies the right to vote based on the same “furtive offenses.”

Nationwide, 13% of black men have lost the right to vote, a rate seven times the national average. The ripple effects of large-scale incarceration now extend beyond the people imprisoned, and, as a result, minority communities throughout the country have lost political influence.

Challenges to criminal disenfranchisement laws have largely failed. In 1974, the Supreme Court issued an opinion in Richardson v. Ramirez, a challenge to California’s law. William Rehnquist relied on the Fourteenth Amendment itself to sanction criminal disenfranchisement laws. The Court ruled that Section 2 of the amendment, which reduces a state’s representation in Congress if the state has denied the right to vote for any reason “except for participation in rebellion, or other crime,” distinguishes felony disenfranchisement from other forms of voting restrictions.

State legislatures have stepped up where court challenges have failed. Since 1997, twenty-three states have restored voting rights or eased the restoration process.

Representative John Conyers Jr. reintroduced into the House a bill that would go a long way toward ending disenfranchisement. A coalition of law enforcement, religious leaders, and civil rights groups support the measure, which would restore voting rights in federal elections to all Americans who are out of prison.

Via NYT.

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Filed under Crime and Punishment, National

The Times They Are a-Changin’: Government Drops DOMA Defense

Seal of the United States Department of Justice

Image via Wikipedia

The Obama administration announced today that it will no longer defend the constitutionality of the Defense of Marriage Act (DOMA), the federal law banning recognition of same-sex marriage.

Attorney General Eric Holder said President Obama made the decision. He added that the congressional debate during passage of DOMA “contains numerous expressions reflecting  moral disapproval of gays and lesbians and their intimate and family relationships – precisely the kind of stereotype-based thinking and animus the [Constitution’s] Equal Protection Clause is designed to guard against.”

In fact, Holder said, the law fails to meet “a heightened standard of scrutiny” and is therefore “unconstitutional.”

“Much of the legal landscape has changed in the fifteen years since Congress passed” DOMA, Holder said. The Supreme Court ruled that laws criminalizing homosexual conduct are unconstitutional and Congress repealed the military’s Don’t Ask, Don’t Tell policy.

Via Towleroad and  Washington Post.

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Scalia: Constitution Protects Only Straight Men From Discrimination


According to Antonin Scalia, if Congress were to sanction discrimination against women or homosexual men, the Supreme Court would be powerless to stop it.

Rather than explain, I’ll just let you read it straight from the horse’s mouth (apologies to horses):

Q: In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?

A: Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

Great! So the Constitution doesn’t require us to discriminate; it’s just cool if we do.

Just so we’re all clear, the Fourteenth states, in part, that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Obviously, “person” means only a straight white man or straight black man (who got lucky and was included after that whole “Civil War” thing).

Marcia Greenberger, founder and co-president of the National Women’s Law Center, explained to the Huffington Post that under Justice Scalia’s doctrine, women could be barred from juries, be paid less by the government, receive fewer benefits in the armed forces, and be excluded from public schools.

Fortunately, as Jack Balkin has pointed out, the fact that women are not mentioned in the Fourteenth Amendment does not mean that they are not protected. Unfortunately, Justice Scalia and not Professor Balkin (a professor of constitutional law at Yale Law School) is on the Supreme Court.

And, just in case you were wondering, Scalia also mentioned in this interview that New York pizza is “infinitely” better than Chicago or D.C. pizza, and that deep-dish pizza is, in fact, “not pizza.” Now here is a man who understands the pressing issues of our time.

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Filed under Law, Politics, War on Women