The Yale Law Journal

May 2012

Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments

Richard M. Re & Christopher M. Re

121 Yale L.J. 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recent arguments by academics and judges that the Fifteenth Amendment impliedly repealed the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.