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Judicial Review and Criminal Disenfranchisement in the United States and Canada

  • Christopher P. Manfredi


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.



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1 [1993]2S.C.R. 438.

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.”

5 Compare, for example, the literature on abortion. See Glendon, Mary Ann, Abortion and Divorce in Western Law (Cambridge, MA: Harvard University Press, 1987); Hoff, Joan, “Comparative Analysis of Abortion in Ireland, Poland, and the United States,” Women's Studies International Forum 17 (1994): 621–46; Peterson, Kerry Anne, “Abortion Laws: Comparative and Feminist Perspectives in Australia, England, and the United States,” Medical Law International 2 (1996): 77105; Glendon, Mary Ann, “A Beau Mentir Qui Vient de Loin: The 1988 Canadian Abortion Decision in Comparative Perspective,” Northwestern University Law Review 83 (1989): 569–91; Kommers, Donald P., “Liberty and Community in Constitutional Law: The Abortion Cases in Comparative Perspective,” Brigham Young University Law Review (1985): 371409.

6 Tate, C. Neil and Vallinder, Torbjorn, eds., The Global Expansion of Judicial Power (New York: New York University Press, 1995).

7 Manfredi, Christopher P., “The Judicialization of Politics: Rights and Public Policy in Canada and the United States,” in Degrees of Freedom: Canada and the United States in a Changing World, ed. Banting, Keith, Hoberg, George, and Simeon, Richard (Montreal: McGill-Queen's University Press, 1997), pp. 310–40.

8 See Vallinder, Torbjorn, “The Judicialization of Politics—A World-wide Phenomenon: Introduction,” International Political Science Review 15 (1994): 9199; Shapiro, Martin and Stone, Alec, “The New Constitutional Politics of Europe,” Comparative Political Studies 26 (1994): 393420.

9 Ramirez v. Brown, 507 P.2d 1345, 1357 (Calif. Sup. Ct. 1973).

10 Ramsey, Murphy v., 114 U.S. 15 (1885); Beason, Davis v., 133 U.S. 333 (1890).

11 418 U.S. 24, 54–55 (1974).

12 ibid., pp. 56–86.

13 Tribe, Laurence, American Constitutional Law (Mineola, NY: Foundation Press, 1978), pp. 771–72. A similar criticism can be found in Shapiro, , “Mr. Justice Rehnquist: A Preliminary View,” Harvard Law Review 90 (1976): 303. The Eighth Amendment has also been invoked against the practice. See Note,Disenfranchisement of Ex-Felons: A Re-Assessment,” Stanford Law Review 25 (1973): 845.

14 Note, The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and the ‘Purity of the Ballot Box’,” Harvard Law Review 102 (1989): 1300–17.

15 ibid., p. 1301.

16 One exception to this characterization of these restrictions was the British Columbia Elections Act, which applied broadly to “persons serving their sentences.” Consequently, probationers and parolees not in prison were disenfranchised. See Knopff, Rainer and Morton, F.L., Charter Politics (Toronto: Nelson, 1992), p. 293.

17 At the time of these challenges, the Act excluded from participation in national elections “every person undergoing punishment as an inmate in any penal institution for the commission of any offence.” Canada Elections Act, R.S.C. 1970 (1st Supp.), c. 14, s. 14(4)(e).

18 Canada, Badger v. (1988), 55 Man. R. (2d) 211 (Man. Q.B.); Canada, Belczowski v., [1991] 3 EC. 151 (F.C.T.D).

19 Canada, Sauvé v. A.-G. (1988), 66 O.R. (2d) 234 (Ont. H.C.J.).

20 Canada, Badger v. (1988), 55 Man. R. (2d) 198, 204205 (Man. C.A.).

21 Canada, Belczowski v. [1992] 2 EC. 440 (F.C.A).Canada, Sauvé v. (Attorney General) (1992), 7 O.R. (3d) 481 (Ont. C.A.)

22 A note on the Canadian court structure is perhaps in order here. The Supreme Court of Canada is the general and final court of appeal for all laws and jurisdictions in Canada. The Federal Court of Canada, with both trial and appellate divisions, has original and initial appellate jurisdiction only over matters governed by “existing and applicable federal law.” This jurisdiction includes the power to review the decisions of federal agencies and officials (e.g. the Chief Electoral Officer of Canada). The provincial courts of superior jurisdiction, which includes provincial courts of appeal, also have jurisdiction over federal laws. For a complete analysis of Canada's court system, see Hogg, Peter W., Constitutional Law of Canada (3d ed.Toronto: Carswell, 1992), pp. 161200.

23 Canada Elections Act, R.S.C. 1985, c. E–2, s. 51 (e), as amended by S.C. 1993, c. 19, s. 23. In effect, this meant that only inmates of federal penitentiaries would be affected by the voting restriction, since sentences of less than two years are served in provincial prisons and/or jails.

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.

25 Although an equality rights argument had been raised (and rejected) in Belczowski ([1991] 3 F.C. 152,162), the arguments presented in Sauvé/McCorrister were far more systematic and sophisticated.

26 Ely, John Hart, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard, 1980), p. 1.

27 Bork, Robert H., The Tempting of America: The Political Seduction of the Law (New York: Simon and Schuster, 1990), pp. 143–60.

28 Miller, Arthur Selwyn, Toward Increased judicial Activism (Westport, CT: Greenwood Press, 1982); Perry, Michael J., The Constitution, The Courts, and Human Rights (New Haven: Yale University Press, 1982). One might argue that the Canadian decisions are, in fact, examples of interpretivism, since the constitutional text unequivocally grants citizens the right to vote and convicted persons are not stripped of their citizenship. The flaw in this argument is that, while s.3 of the Charter appears unequivocal, voting rights are subject to the “reasonable limits” clause. A truly interpretivist approach to s.3, therefore, would accept as “reasonable” all limits that pre—dated the Charter (i.e., that existed prior to 1982). The Canadian decisions are noninterpretivist not because of any novel meaning attached to the concepts of “citizenship” or “right to vote,” but because of the meaning attached to the concept of “reasonable limit.”.

29 Ely, , Democracy and Distrust, pp. 1141, 92,102.

30 Indeed, given Ely's influence on Canadian legal theorists, it is not surprising to find this approach in the Canadian decisions. See Monahan, Patrick, Politics and the Constitution: The Charter, Federalism and the Supreme Court of Canada (Toronto: Carswell/Methuen, 1987), pp. 97138.

31 Perry, , The Constitution, The Courts and Human Rights, pp. 101102, 112– 13,115.

32 In this sense, Ely's “representation-reinforcing” approach to judicial review might be characterized as interpretivist. It has more in common with noninterpretivism, however, because of the extent to which it allows judges to create novel process-oriented rules unanticipated by the constitutional text.

33 Perry, , The Constitution, The Courts and Human Rights, pp. 103107. The legal positivist charge against interpretivism comes from political conservatives as much as from political liberals. See Jaffa, Harry V., “What Were the ‘Original Intentions’ of the Framers of the Constitution of the United States?University of Puget Sound Law Review 10 (1987): 343448, and Arkes, Hadley, Beyond the Constitution (Princeton, NJ: Princeton University Press, 1990), pp. 1418.

34 Miller, , Toward Increased Judicial Activism, p. 247.

35 Reference re s. 94(2) of the British Columbia Motor Vehicle Act (1985), 24 D.L.R. (4th) 536, 554.

36 The failure of the Equal Rights Amendment provides a good example of this dynamic of constitutional reform. See Manfredi, Christopher P., “Institutional Design and the Politics of Constitutional Modification: Understanding Amendment Failure in the United States and Canada,” Law & Society Review 31 (1997): 117–22.

37 Perry, , The Constitution, The Courts, and Human Rights, pp. 112–13.

38 This language is borrowed, of course, from The Federalist Papers. SeeHamilton, Alexander, Madison, James, and Jay, John, The Federalist Papers, ed. Rossiter, Clinton (New York: New American Library, 1961), No. 1, p. 33.

39 Agresto, John, The Supreme Court and Constitutional Democracy (Ithaca, NY: Cornell University Press, 1984), pp. 112–16.

40 The Federalist Papers, No. 51, 322, 321; No. 10, p. 8.

41 See Lerner, Ralph, “The Supreme Court as Republican Schoolmaster,” in The Supreme Court Review, ed. Kurland, Philip (Chicago: University of Chicago Press, 1967), pp. 127–80; Rossum, Ralph A., “The Supreme Court as Republican Schoolmaster: Freedom of Speech, Political Equality, and the Teaching of Political Responsibility,” in Taking the Constitution Seriously: Essays on the Constitution and Constitutional Law, ed. McDowell, Gary (Dubuque, IA: Kendall/Hunt, 1981), pp. 125–38; Franklin, Charles H. and Kosaki, Liane C., “Republican Schoolmaster: The U.S. Supreme Court, Public Opinion, and Abortion,” American Political Science Review 83 (1989): 751–71.

42 [1992] 2 F.C. 440, 452 (F.C.A).

43 For a survey, see Kymlicka, Will and Norman, Wayne, “Return of the Citizen: A Survey of Recent Work on Citizenship Theory,” Ethics 104 (1994): 360–69.

44 Reference re Provincial Electoral Boundaries (1991), 81 D.L.R. (4th) 16,35 (S.C.C.).

45 See Note 28, above.

46 The Supreme Court of Canada laid out the framework for this analysis in Oakes, R. v. (1986), 26 D.L.R. (4th) 200, 227–28.

47 132 D.L.R. (4th) 136,176 (F.C.T.D).

48 [1992] F.C. 440, 457 (F.C.A).

49 132 D.L.R. (4th) 136,174 (F.C.T.D)..

50 Scruton, Roger, A Dictionary of Political Thought (London: Pan Books, 1983), p. 388.

51 Jaffa, Harry, Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates (Chicago: University of Chicago Press, 1982), pp. 348–49.

52 This is how the Federal Court of Appeal characterized the “true objective” of criminal disenfranchisement. See Canada, Belczowski v., [1992] 2 EC. 440, 459.

53 For an early discussion of these issues in the Canadian case, see Planinc, Zdravko, “Should Imprisoned Criminals Have a Constitutional Right to Vote,” Canadian Journal of Law and Society 2 (1987): 153–64.

54 Mill, John Stuart, Considerations on Representative Government (London: Longmans, Green and Co., 1926 [1861]), pp. 6768; Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), pp. 222–23.

55 O'Brien, David M., Constitutional Law and Politics, Volume I: Struggles for Power and Government Accountability (New York: W.W. Norton, 1991), p. 654.

56 The others are ss. 6(1) (mobility rights) and 23 (minority language education rights).

57 Goodwin-Gill, Guy S., Free and Fair Elections: International Law and Practice (Geneva: Inter-Parliamentary Union, 1994), pp. 4246.

58 Booth, William James, “Foreigners: Insiders, Outsiders and the Ethics of Membership,” The Review of Politics 59 (1997): 271–77.

59 Smith, Rogers M., “The ‘American Creed’ and American Identity: The Limits of Liberal Citizenship in the United States,” Western Political Quarterly 41 (1988): 225–51.

60 Bickel, Alexander, The Morality of Consent (New Haven: Yale University Press, 1975), p. 46.

61 Booth, , “Foreigners” P. 280.

62 Tribe, , American Constitutional Law, p. 761 (emphasis added).

63 Aristotle, Politics 1279a15; 1277al.

64 ibid., 1278al-a20.

65 The most famous articulation of this point is by James Madison in Federalist, No. 51. “If men were angels,” Madison argued, “no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself” (Madison, , The Federalist Papers, No. 51, p. 322).

66 ibid., No. 57, p. 350.

67 Mill, , Considerations on Representative Government, p. 12.

68 Rawls, , A Theory offustice, p. 360.

69 ibid., p. 336.

70 Tocqueville, , Democracy in America, 1: 208.

71 Rawls, , A Theory of Justice, pp. 453–54.

72 Madison, , The Federalist Papers, No. 55, p. 346.

73 Mill, , Considerations on Representative Government, p. 11.

74 ibid, pp. 68,10.

75 Rawls, , A Theory of Justice, p. 458.

76 Wilson, James Q., The Moral Sense (New York: The Free Press, 1993), p. 82.

77 ibid., p. 248.

78 Rawls, , A Theory of Justice, p. 224.

79 For the United States, see Wilbanks, William, The Myth of a Racist Criminal Justice System (Monterey, CA: Brooks/Cole, 1987). For Canada, see LaPrairie, Carol,“The Role of Sentencing in the Over-Representation of Aboriginal People in Correctional Institutions,” Canadian Journal of Criminology 32 (1990): 429–40 and Moyer, Sharon, “Race, Gender, and Homicide: Comparisons Between Aboriginals and Other Canadians,” Canadian Journal of Criminology 34 (1992): 387402.The Report of the Aboriginal Justice Inquiry of Manitoba pointed out that “some of the Aboriginal over-representation [among inmates] is simply a reflection of the different age structure in their population.” The Manitoba inquiry also discovered that crime and victimization rates are much higher for Indian bands than for the general Canadian population. For example, the crime rate for Indian bands is almost twice as high as the national crime rate (165.6/1000 vs. 92.7/1000), and the violent crime rate is almost four times as high (33.1/1000 vs. 9.0/1000). Report of the Aboriginal Justice Inquiry of Manitoba, Volume I: The Justice System and Aboriginal People (1991), pp. 87, 93.

80 Goodwin-Gill, , Free and Fair Elections, pp. 45,44 n.84. The statement of this principle can be found in Germany, X.v., Application 2728/66, p. 38 (E.C.H.R. 10 6,1967); Germany, X.v., Application 4984/71, p. 28 (E.C.H.R. 10 5, 1972).

81 Hirsch, Andrew Von, Doing Justice: The Choice of Punishments (New York: Hill and Wang, 1976); Hirsch, Von, Past or Future Crimes (New Brunswick, NJ: Rutgers University Press, 1985). In Von Hirsch's view, although driven primarily by moral considerations, the “just deserts” approach can serve utilitarian objectives by limiting the severity of sentences and ensuring proportionality and equality in punishments. Others have argued that there is an important relationship between utilitarian and moral objectives of criminal sanctions, in the sense that punishment can promote lawful behavior in the general population not just through fear of punishment, but also through moral education. See Andenaes, Johannes, “General Prevention Revisited: Research and Policy Implications,” Journal of Criminal Law and Criminology 66 (1975): 341.

82 “Empathy,” according to James Q.Wilson, is “a willingness to take importantly into account the rights, needs, and feelings of others. Self-control refers to a willingness to takeimportantly into account the more distant consequences of present actions” (Wilson, , On Character [Washington, D.C.: AEI Press, 1991], p. 5).

83 Rawls, , A Theory of Justice, p. 234.

84 Wilson, James Q. and Herrnstein, Richard J., Crime and Human Nature (New York: Simon and Schuster, 1985), p. 207.

85 ibid., p. 126. A survey of Canadian jurisdictions in 1991 indicated that 48.9 percent of those accused of crime were under the age of 24, and 66.9 percent were under the age of 30. The 18–to–24 year old group alone accounted for almost 30 percent of all criminal accused. See Statistics Canada, Canadian Crime Statistics, 1991 (Ottawa), p. 57.

86 Wilson, and Herrnstein, , Crime and Human Nature, p. 147.

87 Correction Services Canada/National Parole Board, Basic Facts About Corrections in Canada, 1992 Edition (Ottawa: Supply and Services, 1992).

88 Correctional Services Canada/National Parole Board, Basic Facts About Corrections, 1992 Edition.

89 Abt Associates Report, 10 April 1995, p. 7 (on file with author). The sample was randomly selected and representative of the inmate population as a whole.

90 Between 1989 and 1994, the average commitment rate was 2.3 per 10,000 adults. Statistics Canada, Adult Correctional Services, 1993–1994 (Ottawa: Supply and Services, 1994), Table 41, p. 90.

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Judicial Review and Criminal Disenfranchisement in the United States and Canada

  • Christopher P. Manfredi


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