Does the Social Contract Theory Present a Valid Reason for the Disenfranchisement of People with Felony Convictions?
General Reference (not clearly pro or con)
Celeste Friend, Visiting Assistant Professor of Philosophy at Hamilton College, in an undated entry, “Social Contract Theory,” of the Internet Encyclopedia of Philosophy, accessed on Aug. 3, 2021, and available at iep.utm.edu, stated:
“Social contract theory, nearly as old as philosophy itself, is the view that persons’ moral and/or political obligations are dependent upon a contract or agreement among them to form the society in which they live. Socrates uses something quite like a social contract argument to explain to Crito why he must remain in prison and accept the death penalty. However, social contract theory is rightly associated with modern moral and political theory and is given its first full exposition and defense by Thomas Hobbes. After Hobbes, John Locke and Jean-Jacques Rousseau are the best known proponents of this enormously influential theory, which has been one of the most dominant theories within moral and political theory throughout the history of the modern West. In the twentieth century, moral and political theory regained philosophical momentum as a result of John Rawls’ Kantian version of social contract theory, and was followed by new analyses of the subject by David Gauthier and others. More recently, philosophers from different perspectives have offered new criticisms of social contract theory. In particular, feminists and race-conscious philosophers have argued that social contract theory is at least an incomplete picture of our moral and political lives, and may in fact camouflage some of the ways in which the contract is itself parasitical upon the subjugations of classes of persons.”Aug. 3, 2021
The Columbia Encyclopedia, (6th Edition 2005), stated:
“Social Contract: agreement or covenant by which men are said to have abandoned the ‘state of nature’ to form the society in which they now live.
The theory of such a contract, first formulated by the English philosophers Thomas Hobbes (in The Leviathan, 1651) and John Locke, assumes that men at first lived in a state of anarchy in which there was no society, no government, and no organized coercion of the individual by the group. Hobbes maintained that by the social contract men had surrendered their natural liberties in order to enjoy the order and safety of the organized state.
Locke made the social contract the basis of his advocacy of popular sovereignty, the idea that the monarch or government must reflect the will of the people. Like Locke, the French philosopher Jean Jacques Rousseau, in Le Contrat social (1762), found the general will a means of establishing reciprocal rights and duties, privileges, and responsibilities as a basis of the state. Similar ideas were used as a justification for both the American and the French revolutions in the 18th century.
Thomas Jefferson held that the preservation of certain natural rights was an essential part of the social contract, and that ‘consent of the governed’ was fundamental to any exercise of governmental power.”2005 - Columbia Encyclopedia
Charles Moster, JD, lawyer, in a June 14, 2019 debate, “It’s Debatable: Should Felons Who Have Paid Their Debts to Society Be Allowed to Vote?,” available at lubbockonline.com, stated:
“Although a convicted criminal may complete the terms of his sentence in accordance with the sentencing order, he or she must still abide by any additional penalties imposed under state law. If the legislature determines that suffrage be denied then such is simply an additional component of punishment and well within the legal rights of a state to impose.
Critically, those states which have endorsed felony disenfranchisement do so based on their belief that these criminals have irreparably broken their social contract or have exhibited traits which question their ability to exercise judgment. Such justification is lawful and logically supports the disenfranchisement determination…
[A] hypothetical “good guy Joe” should never have robbed the 7-Eleven to begin with and may properly be kicked off the voting rolls in perpetuity. He deserves to be punished to the full extent of the law and beyond the time served under his sentence. This is a matter for state governments to decide.”June 14, 2019
Shepherd v. Trevino, heard by the U.S. Fifth Circuit court, stated in its 1978 opinion:
“[Felons] have breached the social contract and, like insane persons, have raised questions about their ability to vote responsibly.”1978 - Shepherd v Trevino
George Brooks, JD, an attorney and writer, stated in his 2005 article “Felon Disenfranchisement: Law, History, Policy, and Politics,” published in the Fordham Urban Law Journal:
“As a policy justification, Locke’s social contract theory has withstood the test of time; it served a rationale for the enactment of felon disenfranchisement laws in the past, and remains a compelling argument today.
When someone commits a crime, he commits it not just against the victim, but against our entire society. Protests that time served is enough, and that society should prioritize the rehabilitation and reintegration of felons should fall on deaf ears.
Opponents of disenfranchisement claim that the inability to vote stymies felons’ ‘remittance into a law-abiding society.’ Yet they neglect to explain why the tonic of voting did not curtail felons from committing crimes initially.”2005 - George Brooks, JD
Green v. Board of Elections, the 1967 U.S. 2nd District Court decision which upheld New York’s ex-felon disenfranchisement provision (later repealed by the state legislature) by finding that wide variations in individual voting rights are not a violation of the Equal Protection Clause of the United States Constitution, stated:
“The early exclusion of felons from the franchise by many states could well have rested on Locke’s concept, so influential at the time, that by entering into society every man ‘authorizes the society, or which is all one, the legislature thereof, to make laws for him as the public good of the society shall require, to the execution whereof his own assistance (as to his own decrees) is due.’
A man who breaks the laws he has authorized his agent to make for his own governance could fairly have been thought to have abandoned the right to participate in further administering the compact. On a less theoretical plane, it can scarcely be deemed unreasonable for a state to decide that perpetrators of serious crimes shall not take part in electing the legislators who make the laws, the executives who enforce these, the prosecutors who must try them for further violations, or the judges who are to consider their cases. This is especially so when account is taken of the heavy incidence of recidivism and the prevalence of organized crime. A contention that the equal protection clause requires New York to allow convicted mafiosi to vote for district attorneys or judges would not only be without merit but as obviously so as anything can be.”1967 - Green v. Board of Elections
The Washington Times stated in a Nov. 21, 2004 editorial titled “Another No Vote on Felons”:
“Even in nearby Massachusetts, no stranger to progressivism, voters in 2000 supported a constitutional amendment to bar inmates from voting. The reason is clear: Most people think perpetrators of serious crimes have violated the public trust and cannot be permitted to help determine the future of the communities they harmed.
[F]or the time being, the voters’ good sense about the possible scenarios – the advent of new constituencies of prisoners whom politicians court for votes, for instance – still prevails. As does the sense that most of the time, in most of the country, serious lawbreakers should not help elect the country’s lawmakers.”Nov. 21, 2004 - Washington Times
Roger Clegg, JD, stated in a Nov. 1, 2004 debate held by the Legal Affairs Debate Club:
“We don’t let children vote, for instance, or noncitizens, or the mentally incompetent. Why? Because we don’t trust them and their judgment..
So the question is, do criminals belong in that category? And I think the answer is clearly yes. People who commit serious crimes have shown that they are not trustworthy.”Nov. 1, 2004 - Roger Clegg, JD
Tucker Carlson, MSNBC television host, stated in a June 26, 2006 segment of his interview show The Situation with Tucker Carlson:
“Now why would we, as citizens, as non-felon citizens, want felons helping to pick our representatives. If you’re a convicted felon, convicted of a violent crime, you have bad judgment. Why do we want people with that judgment picking our representatives?”June 26, 2006 - Tucker Carlson
Tara A. Jackson, JD, lawyer, in a July 6, 2017 article, ” Dilution of the Black Vote: Revisiting the Oppressive Methods of Voting Rights Restoration for Ex-Felons,” available at core.ac.uk, stated:
“Some of the earliest felon disenfranchisement laws rest on the Lockean theory that those who break the social contract should not be allowed to participate in the society’s rule making process. This social contract theory rests on the premise that all persons who break the ‘social contract’ are convicted, and, simply put, that is false. What remains true, however, is the fact that without any voice in the political process, these ex-felons will essentially be demoted to ‘second class citizens’ and are more likely to reoffend. Further, if we are to stay true to the social contract theory, in the purest sense, we must content with the notion that obligations are conditioned on benefits. To follow the social contract theory would mean that those who ‘break the contract’ would, in addition to losing access to certain benefits, be free of some obligations to society. Such an inference would clearly lead to havoc so social contract theory as a justification for felon disenfranchisement is inherently flawed.”July 6, 2017
Afi S. Johnson-Parris, JD, an Associate with Kilpatrick Stockton, LLP, stated in her 2003 article “Felon Disenfranchisement, The Unconscionable Social Contract Breached,” published in the Virginia Law Review:
“[D]isenfranchised felons are unequal parties to a contract that is fundamentally unfair in its formation on the grounds that they are unconscionable…
The social contract between citizens and the state to which they delegate their authority gains its validity from the parties’ freedom to contract and share an active voice in negotiating that contract through the [voting] franchise. In fact, active citizenship in the United States is but a façade without this vital right.
The felon, disenfranchised upon breaching the original social contract, enters into a second contract upon his release. The validity of this second formation is questionable because the felon, in his disenfranchised state, is not an equal party truly free to contract. This suggests that the contract is unconscionable because of the unincarcerated felon’s unequal position as a silent party to the ongoing negotiation of the contract…
The social contract suffers from many of the ailments in the formation, liquidated damages provision, and unconscionable terms that would invalidate any traditional contract… the franchise should be returned to unincarcerated felons so that they may be whole and free parties to the social contract.”2003 - Afi S. Johnson-Parris, JD
Jason D. Schall, JD, an Associate with Steptoe & Johnson LLP, stated in his 2004 article “The Consistency of Felon Disenfranchisement With Citizenship Theory,” published on the website of The Sentencing Project:
“Despite its initial attractiveness, the use of social contract theory to defend felon disenfranchisement is in fact specious. Under a regime of disenfranchisement, an individual who breaches the social contract continues to be bound by the terms of the contract even after being stripped of the ability to take part in political decisions. However, contract doctrine does not allow an injured party to force the breacher to perform its contractual duties without the injured party performing its own. The contract can be terminated or the injured party can accept the performance, but the injured party cannot simply pick and choose which terms will remain and which will not…
Social contract theory and the objectives of punishment fail to provide a satisfactory explanation for the denial of one of the most fundamental rights to millions of citizens.”2004 - Jason D. Schall, JD
Alec C. Ewald, PhD, Visiting Assistant Professor of Political Science at Union College in N.Y., stated in his 2004 article “An Agenda for Demolition: The Fallacy and the Danger of the Subversive Voting Argument for Felony Disenfranchisement,” published in the Columbia Human Rights Law Review:
“[D]isenfranchisement’s defenders continue to claim that denying convicts the vote is necessary to protect something called the ‘purity of the ballot box’… and that because offenders violate the ‘social contract,’ they forfeit political rights completely unrelated to the needs of incarceration….
[A]n erudite sense of indignation is not sufficient grounds for deprivation of a person’s rights in the modern United States. Ideas and theories are not enough — if the state wants to strip a right from a citizen, it must show purposes, legitimate and rational objective which are reasonably linked to the proposed restriction.”2004 - Alec C. Ewald, PhD
Steve Chapman, a syndicated columnist and editorial writer, stated in his Aug. 15, 2006 StarTribune article “Too Many Ex-Convicts Aren’t Able to Vote”:
“We let ex-convicts marry, reproduce, buy beer, own property and drive. They don’t lose their freedom of religion, their right against self-incrimination or their right not to have soldiers quartered in their homes in time of war. But in many places, the assumption is that they can’t be trusted to help choose our leaders.
Many of them can be. The pleasures of long-term confinement serve to deter a lot of them from reverting to mischief. If we thought criminals could never be reformed, we wouldn’t let them out of prison in the first place…
This is one of those cases where we should do the right thing and let the chips fall where they may. Depriving ex-convicts of the ballot is a mindless form of punishment that only discourages them from becoming upstanding members of the community. They’d be better off if we let them vote, and so would the rest of us.”Aug. 15, 2006 - Steve Chapman
Marc Mauer, MSW, Executive Director of The Sentencing Project, stated in a Nov. 1, 2004 debate through the Legal Affairs Debate Club:
“If I was in charge of setting voting qualifications, there are many categories of people whom I would exclude due to their ‘untrustworthiness.’ For a start, admitted racists or anti-Semites wouldn’t vote. Maybe I’d also exclude people who couldn’t demonstrate that they had devoted sufficient time to the upcoming elections. Or perhaps greedy people who lack a commitment to the overall well-being of the community.
But in a democracy we don’t (or at least shouldn’t) set up such barriers… No matter how reprehensible or ill-informed I find someone’s views, my remedy is obviously to get out and vote and to convince others to support my position.”Nov. 1, 2004 - Marc Mauer, MSW