Political illiberalism: the paradox of disenfranchisement and the ambivalences of Rawlsian justice.

AuthorFurman, Jesse

Are there, perhaps, advantages which not only don't fit, but cannot be

fitted, into any classification?... So that a man who would, for instance,

openly and knowingly choose to act in opposition to this whole scheme

would ... be an obscurantist or a complete madman, wouldn't he? Yet there

is something astonishing about this: how is it that, in calculating man's

advantages, all these statisticians, sages, and humanitarians invariably

omit one of them?

--Fyodor Dostoevsky(1)

[T]hey say we should not humanise the inhuman. But the point is they are

not inhuman ... and it is in their humanity that we must locate our

collective guilt, humanity's guilt for human beings' misdeeds; for if they are

just monsters--if it is just a question of King Kong and Godzilla wreaking

havoc until the aeroplanes bring them down--then the rest of us are

excused.

--Salman Rushdie(2)

The right to vote is arguably the most important totem of democratic citizenship. Groups throughout American history, from women to African Americans to the poor, have struggled to achieve the full membership in the political community that the franchise grants. The Supreme Court has declared that the right to vote is an "inalienable right," debasement of which makes one "that much less a citizen."(3) Yet despite its putative commitment to the inalienability of voting, the Supreme Court has, in fact, upheld the forfeiture of voting rights by a large number of American citizens:(4) In fourteen states, persons convicted of a felony are disenfranchised for life.(5)

The Supreme Court's approval of felon disenfranchisement, in the context of its jurisprudence on voting and citizenship, presents a paradox: While it has held that voting is essentially equivalent to citizenship,(6) and that citizenship cannot be taken away as a form of punishment,(7) the Court has failed to close the syllogistic circle. The outcome is an uneasy tension, or ambivalence, between a rhetoric of toleration as expressed in the Court's citizenship jurisprudence and a discourse of exclusion as expressed in its approval of disenfranchisement.

In this Note, I attempt to untangle this paradox. My contention is not that the Supreme Court has simply fallen prey to a logical inconsistency that is easily remedied. The paradox of disenfranchisement, I argue, is a reflection of a much deeper inconsistency--an ambivalence deep within modern liberalism's normative ideals.

To examine these ideals, it is necessary to dig deeper than the legal opinions on disenfranchisement themselves; it is necessary to consider the political theory on which our liberal self-understandings are based. My analysis, therefore, is premised on an examination of the theoretical work of the most prominent and celebrated modern liberal thinker, "arguably 'the greatest [political] philosopher of our century,'"(8) John Rawls.(9) My aim is to show that Rawls's theory of justice, "justice as fairness,"(10) is characterized by the same ambivalence as that in the paradox of disenfranchisement, between toleration and exclusion. Indeed, this ambivalence lies at the very heart of liberalism as it is currently formulated.(11) For while consent--the linchpin of liberalism--arguably provides the most secure basis for toleration, it also has a significant drawback: In the search for consensus, it is virtually inevitable that some will be excluded.(12)

If such exclusion is truly inevitable, as I argue in this Note, the test of a liberal regime and its laws is only in part how exclusionary they are; the process through which they exclude, how permanent their exclusions are, and how they treat the excluded, are all of primary importance. From this perspective, I contend, the liberal natures both of Rawls's theory and of American law are jeopardized. For in both cases, consensuality and its exclusions are privileged over a more liberal form of toleration: In the case of American criminal law this privilege is illustrated by the practice of disenfranchisement; and in the case of Rawls's "justice as fairness" it manifests itself as a potent punitive tendency in his account of a stable, well-ordered society.

My argument does not rest on the claim that theory and practice are coterminous; nor, for that matter, does it rely on an assertion that Rawls's ideals are our ideals. Rather, my more modest claim is that Rawls's liberal political philosophy is the theory most closely aligned with the way we live and view ourselves in America today; his ideals reflect and inform those ideals that American institutions attempt to fulfill.(13)

I am not the only one to hold this view of Rawls's stature. Indeed, Rawls has been cited in scores of legal opinions, more than perhaps any other contemporary political theorist.(14) In 1973, his first book, A Theory of Justice, was awarded the prestigious Coif Award by the Association of American Law Schools for the best "law book" written in the preceding three years.(15) In addition, other political theorists are quick to acknowledge Rawls's influence on American thought and politics: "For us in late twentieth century America," Michael Sandel writes, "[Rawls's liberal vision] is our vision, the theory most thoroughly embodied in the practices and institutions most central to our public life."(16) Or as Alan Ryan puts it: "Mr. Rawls' ideas have crept into the law of the land."(17) In any event, while there are surely differences between American politics and Rawlsian ideals, those differences are secondary for my purposes: I focus on the correspondence between theory and practice rather than the gaps.

Since my analysis of the paradox of disenfranchisement builds on my examination of the ambivalences inherent in liberal political theory, I begin in Part I by looking at Rawls's theory of justice, particularly as it appears in Political Liberalism. In this, his latest work, Rawls proposes a series of reformulations and reinterpretations of his original theory, designed principally to improve upon its claim to secure suitable grounds of toleration. The theory's very foundations, however, continue to favor consensuality over toleration, so that even in its new form, I maintain, these foundations undermine the tolerant nature of justice as fairness. After identifying the nature of the toleration-exclusion ambivalence in liberal theory, I shift focus in Part II to American criminal law and the paradox of disenfranchisement. The paradox, I argue, exposes the true cost of the ambivalence--the potential for illiberal practices to coexist with liberal principles--and demonstrates that American liberalism, like its Rawlsian relation, possesses strong illiberal tendencies. The Part concludes that disenfranchisement laws, though perhaps constitutional, should be repealed. Finally, in Part III, I conclude with an argument for a reconfigured conception of liberalism, for a shift away from the privilege of consensuality to a more "liberal" privilege of toleration.(18)

  1. JOHN RAWLS AND THE AMBIVALENCES OF JUSTICE

    Rawls's argument on behalf of justice as fairness, as it appears in both A Theory of Justice and Political Liberalism, can be roughly divided into two stages. In the first stage, where he develops the normative theory itself, Rawls introduces a hypothetical initial situation, the "original position," incorporating certain procedural constraints designed to produce agreement on principles of justice. In the second stage, he attempts to illustrate how the two principles agreed upon in the original position define a workable conception of justice that approximates and improves upon our considered judgments. It is in this stage of his argument that Rawls considers the issue of stability and attempts to compose a picture of a well-ordered society regulated by justice as fairness. It is also here that the exclusionary element of the theory emerges. Since this is the consequence of features in the normative theory, however, I begin with an examination of the first stage.

    1. From Consensus to Closure: Rawls's Normative Argument

      As with all social contract views, Rawls's theory of justice as fairness works from a concept of agreement. The intuitive appeal of this starting point lies in the liberal notion that cooperation ought to be based on individuals' consent and ought to be for their mutual benefit.(19) Yet it would be virtually, if not actually, impossible to find principles of justice on which all individuals in society, with their radically differing conceptions of the good, could agree. Herein lies the role of Rawls's original position, a "purely hypothetical situation" constructed so as to insure that the principles of justice agreed to are the "result of a fair agreement or bargain."(20)

      Rawls's original position is a specially designed choice situation intended to guarantee the "desired solution."(21) The grounds of choice are severely restricted(22) to ensure that the parties will reach identical conclusions on the fundamental principles of justice. Indeed, as a number of commentators have noted, the original position is less a situation of bargain or agreement than one of acknowledgment or acceptance.(23) Although a bargain or agreement presupposes a degree of difference between the parties, in the original position--where the parties are required to reach a unanimous decision--"the deliberations of any one person are typical of all."(24) The two principles of justice as fairness are, in Rawls's words, the "only choice"(25) that the parties can make: "It must make no difference when one takes up [the original position's] viewpoint, or who does so: the restrictions must be such that the same principles are always chosen."(26)

      The unanimity requirement and the guarantee of perfect repetition combine to ensure that the principles chosen in the original position are foreclosed to further consideration or revision;(27) the demand for consensus leads to closure. If upon lifting the veil of ignorance, therefore, a...

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