Last updated on: 11/26/2008 7:38:00 AM PST
Does the "Social Contract" Theory Present a Valid Reason for Felon Disenfranchisement?
General Reference (not clearly pro or con)
"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
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 (21KB)
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 (28.5KB)
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