A Textualist Case Against Felony Disenfranchisement—And Why That Shouldn't Surprise You

TL;DR:

Section 2 of the 14th Amendment allows disenfranchisement without penalty only for "rebellion, or other crime." Rigorous textual analysis suggests "other crime" means crimes similar to rebellion—those that fundamentally threaten democratic order. Most current felony disenfranchisement laws may exceed this constitutional authorization; a conclusion reached by careful analysis, not policy preference.

Background: Constitutional Text and Judicial Interpretation:

Section 2 of the 14th Amendment reads:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the 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.

This provision emerged from Reconstruction-era politics: incentivizing Southern states to enfranchise freed slaves by threatening reduced congressional representation. The "rebellion, or other crime" exception protected states from penalty when excluding those who had fundamentally rejected the social compact—rebels and those who commit similarly democracy-threatening acts.

In Richardson v. Ramirez, 418 U.S. 24 (1974), the Supreme Court held this clause permits felony disenfranchisement broadly, but never analyzed whether any crime qualifies under "other crime" or whether that phrase takes meaning from its companion: "rebellion." The Court cited widespread 1868 disenfranchisement practices, but state practices often exceeded constitutional limits in other domains as well. Moreover, many contemporary voting restrictions were designed as pretexts for disenfranchising recently-freed slaves (poll taxes, literacy tests, and expanded felony laws). Such practices, standing in isolation, cannot resolve constitutional text's meaning.

The dominant view reads "other crime" expansively, giving states license to disenfranchise any felon without congressional consequences. But constitutional text of such democratic importance deserves closer scrutiny.

Why Textual Method Matters:

Before examining constitutional mechanics, consider this: how do we distinguish good interpretations from bad ones? If someone claimed Sam Cooke's "A Change Is Gonna Come" was a pro-slavery anthem, we'd rightly reject that as absurd—but only because we accept that some interpretations are objectively better than others. And sincere belief in an interpretation (or the conclusions it leads to) doesn’t make it valid; earnestness and good intentions are no substitute for accuracy.

Textualism recognizes this principle in law. It demands interpretive discipline: structure, context, and linguistic analysis rather than sentiment or desired outcomes. In constitutional interpretation, this isn't academic hair-splitting—it's what separates legal reasoning from political preference. By placing emphasis on method rather than outcome, textualism positions courts where they belong in our constitutional system: interpreting law, not writing it.

The Canonical Analysis:

Textualism employs interpretive canons—established tools for determining textual meaning. Two are particularly relevant here:

Noscitur a sociis (associated words): Words take meaning from their neighbors. "Rebellion" describes a grave, anti-democratic act that strikes at democratic legitimacy itself. Its pairing with "other crime" suggests crimes of similar character—those that threaten democratic order—not any criminal violation.

Ejusdem generis (of the same kind): When general terms follow specific ones, they're limited to the same class. Had framers intended all crimes, simpler language would suffice: "crime" or "criminal conviction." The specific inclusion of "rebellion" signals intentional limitation, not broad authorization.

The Constitution uses different formulations for broad versus narrow authorizations. Compare "High Crimes and Misdemeanors" (broad) with "Treason, Bribery, or other high Crimes and Misdemeanors" (contextually limited). The pairing "rebellion, or other crime" follows the latter pattern, suggesting constraint rather than expansion.

A faithful textualist understanding of Section 2 therefore limits "other crimes" to offenses that, like rebellion, fundamentally assault democratic institutions—such as treason, sedition, or election fraud that undermines the integrity of democratic processes themselves.

Textual Fidelity Over Policy Preference:

This interpretation follows from constitutional text, not policy preference. Justice Scalia's approach in Maryland v. King, 569 U.S. 435 (2013) illustrates what rigorous textualism demands: interpretive discipline even when results challenge expectations.

The Court in King upheld DNA collection from arrestees without individualized suspicion, relying on an asserted identification purpose. Scalia rejected that rationale (dissent beginning at 466, joined by Ginsburg, Sotomayor, and Kagan JJ.), describing the Fourth Amendment's protections as categorical:

"The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception."

He emphasized that textual fidelity often produces outcomes that depart from policy preferences or political expectations:

"Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail."

Section 2 of the Fourteenth Amendment demands similar discipline. The question isn't whether felony disenfranchisement serves good policy, but what "rebellion, or other crime" means in constitutional context. Interpreting "other crime" without regard to "rebellion's" limiting force treats a narrow exception as general authorization—precisely the interpretive shortcut textualism rejects.

As Scalia warned in King: "The Court's assertion... taxes the credulity of the credulous." The assumption that "other crime" encompasses all criminal conduct—without analytical regard for the gravity and character of "rebellion"—similarly strains constitutional interpretation beyond textual boundaries.

Constitutional Integrity, Not Political Outcomes:

Under this reading, existing state laws need not be invalidated outright. Rather, states that disenfranchise beyond rebellion-related crimes must accept the consequence prescribed by Section 2: proportional reduction in federal representation.

This isn't about mandating voting rights restoration—it's about constitutional honesty. If "rebellion" is to perform any interpretive work, courts must seriously examine whether state disenfranchisement fits the textual exception. To date, they haven't.

More fundamentally, if courts interpret "other crime" to mean whatever states say it means, they risk transforming a constitutional safeguard into a tool for electoral manipulation—allowing those in power to criminalize and disenfranchise their political opponents without constitutional consequence.

Conclusion:

Section 2 of the 14th Amendment establishes a constitutional bargain: states may disenfranchise for rebellion and kindred democracy-threatening crimes, or accept reduced federal representation. Courts that read "other crime" to mean any felony effectively rewrite this text, allowing states to exceed constitutional authorization while avoiding prescribed consequences.

If expansive felony disenfranchisement reflects sound policy, the Constitution provides a remedy: amendment. Until then, courts should interpret what the text says, not what contemporary assumptions suggest it means. Constitutional interpretation demands fidelity to language and structure—even when that fidelity produces inconvenient results.

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Disclaimer:
This blog post is for general informational purposes only and should not be construed as legal advice. The opinions expressed are solely those of the author. This content is considered attorney advertising and does not establish an attorney-client relationship. For specific legal advice tailored to your situation, please consult with a qualified attorney licensed in your jurisdiction.

Sources, For the Curious (or Skeptical):

• Richardson v. Ramirez, 418 U.S. 24 (1974)
• Maryland v. King, 569 U.S. 435, 466 (2013) (Scalia, J., dissenting)
• U.S. Const. amend. XIV, § 2
• Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012)
• Cooke, Sam. “A Change Is Gonna Come.” Ain’t That Good News, RCA Victor, 1964.

Intellectual Property Notice:

Sam Cooke’s “A Change Is Gonna Come” and all associated lyrics, recordings, and intellectual property are the rightful property of RCA Victor and/or its successor rights holders. Any references or commentary on the song and its historical context are made solely for educational and informational purposes and are without prejudice to the rights of the original owners and creators. Neither the author of this article nor Wood Law Offices, PLLC is affiliated with, endorsed by, or connected to RCA Victor or the estate of Sam Cooke.

This blog post constitutes free public commentary on matters of public concern for the purposes of legal analysis and public discourse. Such use is protected under the fair use doctrine in 17 U.S.C. § 107, which expressly includes “criticism,” “comment,” and “education.” See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994); Golan v. Gonzales, 501 F.3d 1179 (10th Cir. 2007); Maxtone-Graham v. Burtchaell, 803 F.2d 1253 (2d Cir. 1986).

F.n. The textual argument described herein has been advanced by several scholars. See Abigail M. Hinchcliff, Note, The "Other" Side of Richardson v. Ramirez: A Textual Challenge to Felon Disenfranchisement, 121 Yale L.J. 195 (2011). However, courts have not meaningfully engaged with these interpretive challenges to Richardson's broad reading. The absence of case law should not be mistaken for the absence of merit—challenging disenfranchisement on these textual grounds would require a constellation of factors (opportunity, clients willing to fund serious appellate litigation, and favorable procedural posture) that has not yet aligned.

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