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Judicial Review and Criminal Disenfranchisement in the United States and Canada

Published online by Cambridge University Press:  05 August 2009

Christopher P. Manfredi
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Extract

Courts in both the United States and Canada have been forced to consider the constitutionality of laws disenfranchising convicted offenders. Despite similar legal traditions, courts in the two countries have reached diametrically opposed results, with the U.S. Supreme Court upholding broad state power to disenfranchise offenders and Canadian courts rejecting progressively less severe restrictions on offenders' right to vote. Using these decisions as its focus, this article analyzes contemporary theories of judicial review and argues that neither interpretive nor noninterpretive theories of review capture the complex relationship between legal positivism and moral principle that is at the core of liberal constitutionalism. Consequently, neither the Canadian nor American decisions have fully grappled with the normative principles underlying criminal disenfranchisement. The paper further argues that there is a principled defense of criminal disenfranchisement that is grounded in the relationship among citizenship, civic virtue, and punishment.

Type
Research Article
Information
The Review of Politics , Volume 60 , Issue 2 , Spring 1998 , pp. 277 - 306
Copyright
Copyright © University of Notre Dame 1998

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References

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2 Canada Elections Act, R.S.C. 1985, c. E–2, s. 51(e). Section 3 of the Charter declares that “every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”

3 418 U.S. 24 (1974).

4 The full text of section 2 is as follows: “Representatives shall be appointed among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial Officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.”

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24 Sauvé v. Chief Electoral Officer of Canada et al.; McCorrister et al. v.Attorney General of Canada (1995), 132 D.L.R. (4th) 136 (F.C.T.D). Hereafter cited as Sauvé/McCorrister.

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