The Transnational Judicial Discourse and Felon Disenfranchisement: Re-examining the Textual Premise of Richardson v. Ramirez

This article is simultaneously an international comparative law piece about prisoner disenfranchisement in various countries, a transnational work of legal theory providing a framework for the use of foreign law in domestic constitutional courts, and a domestic analysis of the constitutional underpinnings of felon disenfranchisement.\nThe article begins with a comprehensive comparative analysis of the recent prisoner disenfranchisement decisions in Canada, South Africa, and Europe. It notes that the over-arching theme of these decisions is to view the acceptability of prisoner disenfranchisement along a continuum, where it becomes more acceptable the more serious the offense committed.\nThe article then examines the growing phenomenon of a “transnational judicial discourse” between domestic, foreign, and international courts, distinguishing the more controversial universalist and genealogical interpretations of the transnational judicial discourse from the less controversial dialogical interpretation of the discourse which has been separately endorsed by six justices of the US Supreme Court.\nAgainst this background, the article then examines the transnational judicial discourse on felon disenfranchisement, suggesting that the concept of a continuum of applicability taken from the international cases can inform the domestic debate on this issue. Specifically, it questions the current understanding that the framers of section 2 of the Fourteenth Amendment were sanctioning disenfranchisement for every kind of crime along the continuum of applicability. After an examination of the legislative history of the Fourteenth Amendment, it concludes that this was not the framers’ intent; rather, they only intended the disenfranchisement of those committing crimes of rebellion or disloyalty to the State, such as treason.\nWith the textual barrier removed and the door open to a more nuanced constitutional examination of felon disenfranchisement for various crimes, the article concludes by offering some predictions on what a continuum of applicability of felon disenfranchisement would look like under strict scrutiny analysis.

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