the franchise for felons?

A little over a year ago, I blogged about an LD topic that led to quite interesting debates: whether felons should have the right to vote. In Washington, if an appeals court ruling holds up, they soon may.

The ruling, handed down Tuesday by a three-judge panel of the 9th U.S. Circuit Court of Appeals in Seattle, found that Washington's criminal-justice system was so "infected" with racial discrimination that a ban on felon voting violated civil-rights protections.

The state hoped to have the case heard during the U.S. Supreme Court's fall session, McKenna told reporters at a hastily arranged news conference at Seattle-Tacoma International Airport.

Meanwhile, the state also plans to file by next week a motion to stall enactment of the court ruling. McKenna said courts routinely grant such motions if a case is being appealed to the U.S. Supreme Court.

I used to think it was obvious that felons should be denied the franchise--after all, they'd abused the law, so why let them shape it?--but in a democracy, the law isn't perfect, and it's even possible that laws can be shaped with disenfranchisement in mind. At any rate, Vermont and Maine, the two states that allow felons to vote, haven't fallen into the sea... yet.

sketches of a dignity-based neg

For the felon voting resolution, a Neg case based on dignity is sketched out below. Like it? Be inspired by it. Don't like it? Tell me why in the comments.



I negate the resolution.

Resolutional Analysis
The resolution includes the word "retain," which means that felons, no matter their status--incarcerated, paroled, on probation--in the affirmative world, would be allowed to vote. Secondly, we can draw a distinction between felons and ex-felons; those who have served their time or otherwise paid their debt to society are outside the bounds of the resolution. The resolution makes no claims about permanent disenfranchisement.

Observation
The right to vote is granted only to citizens who have reached the age of majority and are judged competent.

As Monique Lanoix writes in "The Citizen in Question," found in the Fall 2007 edition of Hypatia, writes, (Bloomington:Fall 2007. Vol. 22, Iss. 4, p. 113-129

The citizen is required to have elevated cognitive capacities; these come with maturity and imply that the individual cannot have significant cognitive impairments such as advanced dementia. In this way, the concept of the citizen is tied to a specific period in an individual's life, namely adulthood with mental competency.

Furthermore, as Robert A. Dahl writes in Democracy, Liberty, and Equality, (pp. 212ff, c. 1986)

Citizenship depends on contingent judgments, not categorical rights. And the contingent judgments need not lead to universal inclusion.... That we cannot get around the principle of competence in deciding on the inclusiveness of the demos is decisively demonstrated by the exclusion of children.... Children therefore furnish us with a clear violation of the principle that a government must rest on the consent of the governed, or that no one should be subject to a law not of one's own choosing, or subject to a law made by an association not of one's own choosing.

Therefore, the state can and must place reasonable restrictions on the right to vote.

With these facts in mind, I offer a value of Dignity.

In "Democratic Liberalism: The Politics of Dignity," Craig Duncan writes,

This discussion of constraining a person's capacity for responsible choice helps us to understand one of our core values, namely, the value of freedom. This is so because constraints on people's exercise of their powers of choice are in fact constraints on their freedom. It thus follows that respect for a person's dignity requires one to respect that person's freedom. And there is yet more that respect for dignity requires.... [T]he ideal of respect for human dignity also underlies the core value of human equality.

Duncan further explains that a dignity-based conception of equality is foundational to democracy.

What, though, about the second threat to dignity identified above, the threat to citizen's equality? This was the risk inherent in any distinction between the rulers and the ruled, namely, the risk of failing to recognize citizens' status as beings capable of leading their own lives via their capacity for responsible choice. The proper response to this threat surely lies in some form of democracy, which gives citizens an equal share of voting power, thereby recognizing in a significant way their equal status as beings capable of responsible choice....The line of argument from respect for dignity to democratic government is thus straight and short.

Since the moral foundation of democracy is dignity, and since dignity is our "capacity for responsible choice," and, furthermore, since democracy depends on the responsible choices of its demos, or voting citizens, I offer responsible choice as my criterion. Responsible choice has two necessary components, as Lanoix explains.

The citizen is one who can be politically active; he must be able to voice his discontent or his assent. For example, in Rawls's theory, the political person must possess two moral powers: a sense of justice and a vision of his ends.

When we choose to violate others' rights, we deny them their dignity, and abdicate our political equality. I will show how this not only grounds, but requires, the disenfranchisement of felons.

Contention One: Criminals deny the dignity of their victims and themselves.
Criminals use other humans as means to an end. They steal property, commit acts of bodily injury, maim, kill, and destroy. Duncan writes,

"[T]reating others as mere instruments for achieving your personal ends is one way of failing to recognize others as responsible beings, and thus one way of failing to treat them as equals."

Contention Two: This denial is proof of felons' failure to make responsible choices.
By treating others unjustly, felons undeniably and irrevocably demonstrate an inadequate sense of justice and a murky vision of their own ends.

Contention Three: The State is therefore justified in denying felons the right to vote.
As was already established, the State has the right to place reasonable restrictions on political participation. Since it is reasonable for society to protect the dignity of its members, and to express the importance of dignity by punishing felons, then there is no moral duty on the state's behalf to maintain felon suffrage. In contrast, the State has a moral duty to disqualify those who violate others' dignity.

LD mailbag: the unavoidable social contract

Another day, another batch of LD emails regarding the felon voting resolution. Let's wade right in.

I stumbled across your page as I was searching for information for the November/December LD resolution. I'm a novice (so I haven't competed in LD before) and I wanted to use the social contract in my Neg. Here's what I have so far:

“Good and evil; reward and punishment, are the only motives to a rational creature: these are the spur and reins whereby all mankind are set on work, and guided."

What John Locke meant by this statement is that for a society to be functional, good and evil in addition to reward and punishment must coexist within it. In a democratic society, all of the preceding conditions can impact the right of voting.

The value being held in this debate is societal welfare. Most people would contest that societal welfare is the well being of a society in matters of health, safety, order, and economics. So how does a democratic society achieve societal welfare? Abraham Lincoln once said “democracy is the government of the people, by the people, for the people”. Therefore, in a democracy, societal welfare is the responsibility of the people. To maintain societal welfare, we must adhere to the social contract, the value criterion of this debate.

The Locke quote is interesting, since it provides a glimpse into Locke's moral thinking regarding education in virtue. As John Marshall notes in John Locke: Resistance, Religion, and Responsibility, children's fundamental appetite for pleasure could only be moderated by persistent and consistent education. "This task was enormously difficult, but it was possible since the mind at birth was a tabula rasa and since [children] were extremely concerned... with how others viewed them." It might be argued that this extends to individuals' roles vis a vis the State; those who impetuously or impertinently disobey the law show a lack of virtue, thus grounding their disqualification from the franchise in accordance with Lockean contractarianism.

Of course, how upholding the social contract gets us to societal welfare requires some warranting, but it can be done.

I had been looking for the fundamental principle underlying a Lockean approach to disenfranchisement. This angle--that the felon's lack of virtue disqualifies her from voting--would sit well with the argument that felons have, in essence, declared war on the Contract, which is the Lockean argument I've seen argued most frequently in the literature.

Okay, on to another case by a completely different author.

Hi, I'm completely new to Lincoln-Douglas Debate, and was hoping you could review the basic thoughts behind my cases.

Pro:

V: Justice
C: Utilitarian Punishment

1. Purpose of Legal System is Utilitarian
2. Punishments sanctioned by the U.S. Legal Code are justified through the concepts of deterrence, incapacitation, and rehabilitation.
3. As disenfranchisement does not serve any of those purposes, it is not legally justified.
4. As disenfranchisement is carried out through the legal system, if it cannot be legally justified, it does not serve the system's purpose (utilitarian)
5. As disenfranchisement is carried out through the legal system, it must be justified legally, as it is not, an affirmation of the resolution is forced.

Problem: how do we extend the utilitarian concepts found in the US Legal Code into a general depiction of "a democratic society?" It can be done, but it needs explanation.

Secondly, the "ought" in the resolution must be defined carefully to include a legal perspective. Or, if we stick with a moral "ought," we have to explain why / how utilitarian punishment fulfills a moral obligation.

Be on the lookout, though, for a Neg who argues that utilitarian punishment is not a sufficient criterion for justice; as some critics note, utilitarian concerns might not include "due process" or "cruel and unusual punishment" constraints, as long as it can be shown that society benefits overall from a harsher penal regime.

Next case, same author:

Con:

V: Democratic Society
C: Upholding Moral and Political Standards of the Mainstream

1. Basic Purpose of Political Deliberation in a Democratic Society is to uphold the moral and political viewpoints of the mainstream
2. Felons, through committing criminal actions, have classified themselves as having atypical moral and political beliefs
3. Allowing Felons to Become a Constituency would, by the nature of a democratic society which represents the people, cause the degradation of the moral standards of society, and directly work against the purpose of a democratic society
4. As affirming the resolution causes moral degradation on a societal level, and works against the purpose of a democratic society, it must be negated

My main problem is with #3 of the Con Case, in that felons, as an unrealized constituency, despite being 4.7 million in number, are spread out geographically, making their impact on society doubtful. Any thoughts on how to address this?

#1 is interesting; it squares with an older view of democracy that doesn't include provisions for minority rights. (This narrow view, though, is susceptible to the charge that the democracy will use felony laws as a way to purposefully disenfranchise dissenters.)

#3 should be argued along largely theoretical lines, with a nod to perhaps the Florida experience in 2000, when Gore lost narrowly and, according to some scholars, likely would have won if felons had been able to vote. (Note that this example can backfire, though.) Regardless of the particular outcome, felon suffrage could have made a big difference.

# 3 isn't sufficient; it needs some help. What of the victims who, seeing that those who injured them are able to vote, become disenchanted with the system? A government that allows felons to shape its course could be deemed illegitimate by those who had traded their liberties to ensure their security, never thinking that the contract could be gamed by those who don't play by the rules. (Whoa... there's the social contract again, sneaking into every Neg case.)

'Tis all for now. Questions? Comments? Fire away!

a critical question for contractarian neg cases in the felon voting resolution

Regarding the current resolution, this is about the clearest statement for the negative position based on retribution and the social contract that you're going to find. It comes from "The prisoner's campaign: Felony disenfranchisement laws and the right to hold public office," by Andrea Steinacker, found in the Brigham Young University Law Review.

The main theory behind retributive punishment is that "someone who has violated the rights of others should be penalized, and punishment restores the moral order that has been breached by the original wrongful act" [citing Ken Greenwalt's article, "Punishment," in the Encyclopedia of Crime and Justice]. Retribution is also seen in terms of fairness to the law-abiding citizen. Under John Locke's concept of the social compact, "[a] man who breaks the laws he has authorized his agent to make for his own governance could fairly have been thought to have abandoned the right to participate in further administering the compact" [citing Green v. Board of Elections]. Under the retributive theory of punishment, those who break the law should not be allowed to participate in making the law, whether as a voter or as a political officer.

Later on, Steinacker quotes from another important felon disenfranchisement case, Texas Supporters of Workers World Party Presidential Candidates v. Strake:

"The State has a valid interest in ensuring that the rules of its society are made by those who have not shown an unwillingness to abide by those rules."

If you note carefully, neither of these quotes really explains why the rulebreaker, as it were, has abandoned the right. It's merely presumed to be "fair" and "valid."

So, here's the question: why? Why is it fair and valid to presume that disenfranchisement is a logical or natural consequence of violating the social contract? In other words, does an argument to the social contract really run deep enough?

Update: Mr. Kuznicki provides an answer.

LD mailbag: aff and neg case ideas

Today's LD mailbag, about the Nov/Dec LD resolution, comes with two shell cases. Let's see if we can add a little yolk.

I'm a fairly new debater and I'm having a little trouble building my case (I've already been working on it for two days) and I'm still a bit stumped. I was wondering if you could give me a few pointers or just point me in the right direction.

Here is my Aff case so far.

Value- Justice
Criterion-Distributive Justice

cont 1-Felons are citizens
(evidence)
sub point A -all citizens should have the same rights
(evidence saying because all felons are citizens and they follow the same laws and have same legal duties the government should not be able to take away their rights if the felon has already served their sentence or is serving at the time)

sub point B-felons are equal to other citizens
(evidence supporting that felons are just like other people not completely moral or immoral and disenfranchising them is unjust)

Cont 2 Disenfranchisement is unjust punishment (I'm not quite sure how to tie it into my value and criterion if possible)

subpoint A-does not serve as a deterrent
(no evidence yet)

subpoint B- works against rehabilitation
(no evidence yet)

cont 3-???

First, "distributive justice" doesn't seem to fit as a criterion, since it doesn't match the second contention, and only obliquely relates to the first. Instead, we might have a dual criterion. One is a utilitarian justification: just punishment deters crime and rehabilitates felons (Contention 2). The other is a side constraint: punishment must be given within the bounds of due process and equal treatment under the law (Contention 1). I think those, if properly argued and defended, could be sufficient grounds to reject disenfranchisement of felons.

Subpoint A of the first contention needs help, though. If all citizens deserve the same rights, what justification do we have for taking away felons' rights to life, liberty, and property? We have to show either that voting is fundamental to citizenship in a way that those rights aren't, or come up with some other principle of justice that disenfranchisement violates, and retool the contention.

Okay, on to another case.

I'm a novice and I was to hoping to get away from the social contract on the negative side.

A teammate gave me the idea of running how felon's mindset is bad for enfranchising them. Also, something about how that is demonstrated by a town with a non-felon population of 3,000 and in the same county there's a prison with a population of 5,000.
My value would be societal welfare, and my criterion would be governmental legitimacy.

The problem is, I'm having a hard time understanding how to link it all together and how to argue it without being subjective... especially after writing my affirmative case.

The first argument, that felons are somehow unfit to vote, is usually argued in this way: felons have committed a crime and therefore have bad moral judgment; the state has the obligation to protect itself against those with bad moral judgment; therefore, the state has the obligation to disenfranchise felons. Still, the social contract lurks just outside, reappearing should any affirmative ask one simple question: in a democratic society, where does the right to vote come from?

The mathematical hypothetical example given, at first, seems powerful. If 5,000 incarcerated felons vote en masse to elect a soft-on-crime candidate, despite the wishes of the peaceful minority, won't the social fabric be torn apart?

Not exactly, for several reasons. First, a society in which more than half the population are felons is hard to describe as "democratic;" it would be so awash in criminality to necessitate a tyrannical government, or have such terrifyingly bad laws as to strain credibility. Second, such a society would be so economically stagnant and hard to manage (who's going to keep that many prisoners under lock and key?) that it would soon implode. Third, the only realistic scenario under which this would take place is a "prison town" where the inmates are mostly residents of some other locale. (That's how it works in the U.S., at least. The prison isn't your legal residence.)

So, unless I'm making some huge error in fact or reasoning, I find that argument difficult to sustain.

If you have case questions, either post them in the comments or email them to me, and I'll tackle them here on the blog.

a lukewarm defense of democracy

The Nov/Dec LD resolution forces debaters to consider the value of voting. In an otherwise unrelated blog post, Jason Kuznicki, who has a knack for clearly explaining complex ideas, provides a connection between the social contract and the right to vote.

Voting is a tricky thing, since it’s a positive, or government-created right; you don’t have a right to vote in the state of nature. The social contract creates voting.

By entering into society, you surrender a distinctly limited number of your natural rights, for instance the right to extract restitution forcibly from those who have wronged you. In compensation for giving these up, the state gives you some other rights (like voting, and trial by jury). All the other rights not clearly mentioned in the deal are yours to keep, at least in theory. And there’s no sense in saying you’ve given up more than you really have.

Negatives who are running the social contract analysis need to frame the distinction between natural rights and positive rights; it's essential to establishing the government's warrant for taking away the right to vote when a felon is convicted.

I like Kuznicki's answer to the objection that the social contract is a mere construct (call this the "I didn't sign any social contract" objection). Kuznicki writes,

The real question is not whether there was a discrete moment in which you entered into society. Clearly there was no such moment.

We tell ourselves the story of the social contract as a way of comparing real life to a situation that is obviously just. The more that real-life outcomes approximate the obviously just situation of the social contract, the more confident we can be in the justice of the actual situation. Likewise, the less they resemble an obviously just case, the more we can doubt their justice. Thus, although you never entered into society as you would enter into a contract, we still evaluate society as if you did — and when we find things that you would never accept in a contract, there is a plausible case to be made that these things are unjust.

Later on, in the comments, we get a social contract-esque defense of democracy.

I see the greatest value to democracy as follows: It ensures, better than any other system we know, a peaceful and orderly transition of power. Peace and order are still worth keeping, even if I disagree with the policies of the candidates running.

Kuznicki calls this "lukewarm." Still, from a realistic perspective, lukewarm might be the hottest water we can get.

Added: Oh, and if you need them, here are Kuznicki's bona fides.

a real life example of the felon voting resolution

As if to say, "Please use his name in every LD round concerning the November / December resolution," the fates have intervened, allowing convicted Alaska senator Ted Stevens to vote for himself in the upcoming.

Stevens was convicted Monday on seven counts of trying to hide more than $250,000 in free home renovations and other gifts that he received from a wealthy oil contractor. Alaska law says "a person convicted of a crime that constitutes a felony involving moral turpitude under state or federal law may not vote in a state, federal, or municipal election from the date of the conviction through the date of the unconditional discharge of the person."

But state legal officials say that since Stevens has not been sentenced yet, he is eligible to vote in the general election, said Gail Fenumiai, director of the Alaska Division of Elections.

He won't be sentenced until sometime next year.

Besides, when you're given the chance to say the phrase "moral turpitude," how can you resist?

LD mailbag: felons and Foucault

Readers have sent in some good LD questions regarding the current "felon voting" resolution. I'm answering them here in the hopes that others will gain insight as well. As always, add further questions or constructive criticism in the comments.

I'm pretty new at debating, and I'm having trouble writing cases. (I've been at this computer for the last six hours and still haven't come up with much!)

Here's my affirmative so far:
V: Justice
VC: ?
C1: The right to vote ought to be inalienable for all people in a democratic society
[backed up with evidence, etc.]
C2: ?
C3: ?
And my negative:
V: Justice
VC: ?
Obs.1: Felons = incarcerated AND ex-felons, affirmative must prove both
C1: Currently incarcerated felons are wards of the state and do not pay taxes, thus they should not retain the right to vote.
C2: Felons have shown lack of judgment by committing felonies, thus they cannot be trusted to vote.

Blargh. I'm so bad at this writing cases thing. What should I do?

I think either case is workable, with a few tweaks. Here's how I'd go about fixing them.

It seems like your criterion is "protection of rights." If justice is what people are due, then in a democratic society, they are due their rights. Right?

So, let's set up the affirmative this way:

1. The right to vote is inalienable for all people. (Felons are people, too.)
2. The right to vote is fundamental to other rights. (Which ties into the third contention.)
3. If felons are disenfranchised, society can use the law to disenfranchise dissent, a precious right in a democracy. (In the South, some disenfranchisement laws were drafted specifically to target African Americans.)

Now, for the negative.

C1 is not very strong, at least compared to other potential arguments. The elderly, for example, often pay zero taxes because all their income comes from social security. Yet they are allowed to vote.
C2 is workable.
C3 might be that felons have violated the social contract.

If the value was societal welfare, and the criterion the Social Contract, we could have two contentions.

C1. Felons' lack of judgment, combined with the right to vote, would threaten social order (thus tearing apart everything the social contract is meant to establish and maintain).
C2. Felons' violation of the social contract inherently warrants disenfranchisement.

Another reader writes,

I was wondering if you knew how Foucault's Normalization theory could be applied to the new LD resolution on felon disenfranchisement.

I'm no expert on Foucault--I'll leave that to Josh--but I think Foucault applies to this resolution in several ways. I mention one here.

"Normalization" is the process by which society standardizes its norms as a means of control. Felon disenfranchisement laws are perhaps the least subtle instance of this tactic, since they rely on the reason in the negative C1 listed above: that felons are "abnormal," and thus lose the right to vote. For a primer on Foucault's theory of societal punishment, check out this article.

So, Josh: any other thoughts?

more definition analysis for the felon voting resolution

Regarding the Nov/Dec LD resolution, Guest Blogger OkieDebater writes,

Regarding definitions, I think there are lots of ways with this resolution to frame it to where it is advantageous to your side (without your opponent catching on until after they've already agreed to your definitions).

FELONS
-When defining "felons", it is to the Aff's advantage to select the broadest definition possible. Two examples, both from Webster's Revised Unabridged Dictionary are:

"1. (Law) A person who has committed a felony.
2. A person guilty or capable of heinous crime."

With this first definition, one is making sure that the debate is not necessarily about currently incarcerated felons, but anyone who has ever committed a felony. This could include ex-felons (those who have completed their terms) and pardoned felons.

(Out of curiosity, would the Neg even make a distinction between a felon and a pardoned felon? IS there any inherent distinction that would account for different rights? Can justice be sold?)

With the second definition of felon, one could try to make the argument that almost anyone is capable of a heinous crime depending upon circumstances. This one is admittedly more of a stretch (unless you've seen the classic Spencer Tracy/Katherine Hepburn movie "Adam's Rib")

OUGHT
-Regarding "ought", the affirmative or negative have several options, depending on if their cases are consequentialist or retributive/deontological. An example of the two (from the American Heritage Dictionary) are:

1 Used to indicate obligation or duty.
2 Used to indicate advisability or prudence

The first is deontological while the second is consequentialist. This is the kind of definition that if your opponent let's you use, it can really become important in a rebuttal as you've already created a foundation as to why your philosophy is more relevant/paramount/superior.

RETAIN
-When defining "retain", there are not nearly as many options that are beneficial to Aff. The Neg can use definitions that obviously include currently incarcerated felons. If this is detrimental to your Aff case, I would suggest going with a definition such as this one, from Princeton University's WordNet 3.0:

"secure and keep for possible future use or application"

This seems to at least give the possibility that is something that can be put off for a later time, thereby potentially excluding incarcerated felons while still being a fair reading of the resolution (assuming, of course, that your opponent doesn't provide and defend a more typical counter-definition, such as "To maintain possession of" from the American Heritage Dictionary)

A
-I will try to find some good definitions for "democratic society" and "right to vote" later. The last (and probably most controversial) definition I want to put is "a". Yes, the word "a". It seems to me that there could be room to argue based off of this (Of course, as someone who has won a round based off of the definition of the word "is", I always think there's ground to argue). The options I see in this word are conditionality versus universality. While a "conditionality statement" (a statement that one just needs to prove one example to be true to uphold one's burden of proof) is never agreed to, a definition of "a" will most likely be passed by. Here are two definitions of "a", both from Dictionary.com Unabridged:

1. not any particular or certain one of a class or group: a man; a chemical; a house.
2. a certain; a particular

The first would be a foundation for the argument that this would have to apply to ANY democratic society. The second would be more similar to a veiled conditionality statement, as it could be a foundation for saying that you are proving that felons ought to maintain the right to vote in a particular democratic society.
This could be a tough sell depending on your judges, but your opponent would most likely not expect you to define the word "a", much less argue anything based off of it.
(Note: I realize you probably wouldn't want to use a dictionary.com Unabridged definition. There are other definitions that are similar and could potentially lead to the same arguments, although they are not as clear)

That's all for now. More definitions and/or random thoughts to come later.

I would add my own editorializing: unless you have a definition of "retain" like "secure for possible use," I'm not sure the argument that ex-felons are part of the equation (using the broadest legal definition of "felon") will fly.

If "retain" means "keep," or, in other words, "not have taken away," then the Affirmative isn't discussing a world where ex-felons can't vote, because in the affirmative world, they never lose that right. (This also probably requires a general definition of "a," to ward off the clever tactic of promoting one democratic society as typical.

As you can see, those definitions matter muchly.

value and criterion pairs for the felon voting resolution

Here are several value/criterion structures to consider for the November/December resolution, "In a democratic society, felons ought to retain the right to vote." Each value is chosen under the assumption that it could be defended as the core value of a democratic society.

I won't say which goes with either side; many, if not all, could apply to either Aff or Neg. That's determined largely by the arguments and evidence you assemble.

This is a first draft; as I go along, I'll add analysis to every offering.

Feel free to suggest your own--which I'll tack on at the bottom--or critique the various offerings, in the comments.

V: Human Rights
C: International Law
A democratic society, to be truly democratic, must uphold human rights. (You can figure out why.) Since the resolution does not specify a particular society, we can't be 100% certain which rights must be protected. Best, then, to look to the prevailing standards of international law--the rights that people across societies, cultures, and even times have agreed are essential. Is this criterion open to attack? Certainly. But it also presents a clear, highly defensible set of rights (and jurisprudence as evidence).

V: Freedom
C: Protecting Human Rights
Perhaps human rights themselves are only means to a greater end: freedom. Once you explain why freedom is the ultimate value of a democratic society, you can explain why prserving rights is essential to human freedom. Note that this structure works well for Aff or Neg; you have to provide the reasoning for either.

V: Justice (defined as "to each their due," or a similar concept)
C: Retribution

V: Justice
C: Another applicable criterion for punishing felons

V: Justice
C: Rawls' first principle of justice (or, more generally, the Rawlsian social contract)

V: Moral Pluralism
C: Tolerance

V: Societal Welfare
C: Utilitarianism
Utilitarianism is quite possibly the closest allied moral framework with democracy. After all, if the goal is the greatest good for the greatest number, what better way, societally, to achieve this than through democratic means? If the ultimate aim of a democratic society is its own well-being, then utilitarianism offers a way to determine whether felons' suffrage adds to or detracts from overall happiness.
Strategy for Success: Be sure to show how Util leads to SW. Watch out for the "50.01% can kill 49.99%" response, an oversimplification of Util. Learn about the nuances and varieties of Utilitarianism.

V: Autonomy
C: Respecting Human Rights

V: Human Dignity
C: Respect for Autonomy

V: Justice
C: Equal protection of the laws

V: Societal Welfare
C: The rule of law

V: Human Rights
C: Locke's Social Contract

V: The General Will
C: Rousseau's Social Contract

V: Societal Welfare
C: Upholding Moral Standards
Morality is good because it holds society together. (There may be social contract implications lurking beneath the surface of this structure.) If the core value of a democratic society, then we are justified in punishing those who commit offenses against morality.
Strategy for Success: This criterion respects differences across societies, since the resolution doesn't specify any particular society. However, it also leaves one open to the attack that morality is difficult to define and agree upon, even with in a society.


V: Justice (defined in terms of morality)
C: The Categorical Imperative
According to Kant, moral actions are good in and of themselves. Furthermore, Kantian theory applies to all rational agents, which are the foundation of a democratic society. Felons are rational agents, and must adhere to the Categorical Imperative. Those who punish them are bound by moral obligation to punish them to the fullest.
Strategy for Success: Many people misunderstand Kant and the Categorical Imperative, so make sure you do the research first.

V: The Common Good
C: Deliberative Democracy
The resolution concerns the aim of a democratic society, and the balanced or opposed interests of innocents and criminals. If deliberative democracy is the moral means to the common good, and felons threaten the deliberative process when they are allowed suffrage, then we ought not allow felons the right to vote.
Strategy for Success: Requires quality research and a quality debater. Not for beginners.

I think that reader Anand's analysis here is better than my hastily conceived idea. (Scroll down through the comments to see the discussion.) Anand writes,

Jim, I think we agree that deliberative democracy isn't directly applicable.

But I was just thinking about it, and one could argue that since the resolution is discussing what felons ought to have in a democracy, it requires a picture of what a democracy ought to be.

Obviously a democracy can exist regardless of whether felon can vote. So the challenge is showing that enfranchising felons leads (or doesn't lead on the neg) to a more ideal democracy.

Therefore, if you can show that your conception of an ideal democracy is more ideal than your opponent's, and if your ideal demands felon suffrage, you should win.

I don't think that I'm necessarily using deliberative democracy, but my case will have a strong Rawlsian framework with additional analysis on punishment and ideal democracy from behind the veil.

V: Freedom
C: Libertarianism / Minimal State

Rawls and the rights of felons

Why might you use Rawls for the November/December resolution? Answer: Rawls is all over democracy. In fact, a Rawlsian conception of a "democratic society" could be the basis of an interesting case.

In "Political illiberalism: The paradox of disenfranchisement and the ambivalences of Rawlsian justice," found in the January 1997 Yale Law Journal, Jesse Furman, who aims to critique Rawls, shows the strengths and weaknesses of a Rawlsian approach to punishment as it relates to felon voting.

Furman describes Rawls's view of a democratic society:

Rawls's principal aim in Political Liberalism is to specify a "political conception of justice" given the "fact of reasonable pluralism": the fact that a democratic society is characterized "not simply by a pluralism of comprehensive religious, philosophical, and moral doctrines but by a pluralism of incompatible yet reasonable comprehensive doctrines." The political conception is conceived as the focus of an "overlapping consensus" of these differing comprehensive doctrines.

From the clash of perspectives behind the veil of ignorance arises a complete framework for a liberal society.

[T]he first principle of justice as fairness is that each person is to have an equal right to the most extensive total system of basic liberties. This principle is defined as prior to the second principle, meaning that greater social or economic advantages can neither justify nor compensate for a deviation from the institutions of equal liberty.... [T]he "worth of the political liberties to all citizens... must be approximately equal, or at least sufficiently equal, in the sense that everyone has a fair opportunity to hold public office and to influence the outcome of political decisions." Principal among all the basic liberties, therefore, are the political liberties; principal among the political liberties is the right to vote. As Rawls writes in A Theory of Justice: "[A]ll citizens are to have an equal right to take part in, and to determine the outcome of, the constitutional process that establishes the laws with which they are to comply."

Furman cites Supreme Court Justice Abe Fortas, who noted that the franchise "is the sacred and most important instrument of democracy." Furman, quoting Rawls, then explains the reason for the centrality of suffrage.

First, the political liberties are "essential... to make sure that the fair political process specified by the constitution is open to everyone on a basis of rough equality." Second, they are crucial "in order to establish just legislation." As a result, "it is not implausible that these liberties alone should receive the special guarantee of fair value. This guarantee is a natural focal point between merely formal liberty on the one side and some kind of wider guarantee for all basic liberties on the other." This argument is based principally on pragmatic concerns: Political liberties are crucial because they provide access to the process that determines the value of all the basic liberties.

Two Supreme Court cases that take a Rawlsian stance: Yick Wo v. Hopkins, and Wesberry v. Sanders, which held that

"No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined."

The work of the Affirmative running Rawls, then, is to show how denying felons the franchise undermines the value of the vote, by using "justice as fairness" as the value of a democratic society, and Rawls' first principle as a criterion.

There is a foundational critique of Rawls, though, for the Affirmative who's running something else and facing a Rawlsian neg (and a warning to both sides who run with Rawls). Consider the "original position," from which the putative members of a just society choose the rules. Reasoning from this plural starting point, Rawls aims to establish a democratic society that not only meets the approval of a vast majority of its members, but is warranted to the degree that criminality can be punished. To this end, Furman notes, Rawls argues that not only is a democratic society reasonable, but its principles are obviously reasonable to all, even to criminals. In other words, it is simply unreasonable for someone to consider the principles derived from the original position to be unjust.

Perversely enough, therefore, the dissonant individuals themselves are considered participants in their own treatment or punishment. Indeed, this insight forms the basis of a brief critique of social contract theory by the French philosopher Michel Foucault: "In effect the offense opposes an individual to the entire social body; in order to punish him, society has the right to oppose him in its entirety. It is an unequal struggle: on one side are all the forces, all the power, all the rights." The criminal in such circumstances faces a penalty that "seems to be without bounds," while because he is a part of the social body that is bound by the contract, he cannot object--he wills his own punishment....

Thus it seems that justice as fairness is voluntary and liberal only up to a point: only for those whose self-understandings would have them voluntarily comply with it in the first place, or whose self-understandings are easily adaptable to the mandatory self-understandings prescribed by justice as fairness. For all others, Rawls can only say: "Your nature is your misfortune."

Anyone considering the core values of a democratic society must include tolerance in that list; a democratic society that cannot handle friendly dissent, as Karl Popper noted, is ceding to its totalitarian impulses. Rawls seems to be edging close to a reasonable totalitarianism by majority rule.

What's the alternative, then? Furman describes a "duty to engage in dialogue" as the answer to Rawls' overreliance on reason. Democracy is messy, and a democratic society simply has to live with that fact.

Addendum
On the other hand, see here for a Rawlsian defense of punishment.

All Hail Rawls Addendum
I'm holding on to this thought for the next time a U.S.-centered resolution rolls around, and I need to warrant Rawls as my criterion-maker of choice:

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.

There may be other ways to put it, but this one has a certain grace. (Read the whole article to learn why Furman is convinced of Rawl's dominion over American political thought.)

Final Note
This post is a little disjointed and rushed, for the sake of getting out there so you could critique it with all due haste. So, have at it.

defining democratic society in the Nov/Dec LD resolution

"In a democratic society" establishes the context for the November/December LD resolution. Defining "democratic," then, is important to determining the choice of a value and a criterion. In fact, I'd argue that this could be the most important definition. Any value chosen by either side must be defended as the core value of a democratic society.

So, let's see some definitional choices. You have several options: you could define each word separately (which we'll do first), or define the phrase (which we'll attempt at the end).

Dictionary.com (Random House):

1. pertaining to or of the nature of democracy or a democracy

And, of course, democracy means:

government by the people; a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system.

Merriam-Webster: 1: of, relating to, or favoring democracy. Democracy, of course, meaning:

1 a: government by the people ; especially : rule of the majority b: a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections

Black's Law Dictionary (8th edition) defines democracy thusly: Government by the people, either directly or through representatives.

Notice a pattern? All of these are focused on democracy as a form of government, which is fine--and defensible. When combined with "society," the phrase would mean a people or culture sharing a representative or directly-elected government. This is the definition that probably squares best with a "social contract" case based on Rousseau's conception (in particular) or Locke's version (with slight modification or allowances).

However, "democratic" also has a different connotation. Dictionary.com:

2. pertaining to or characterized by the principle of political or social equality for all

Merriam-Webster's:

3: relating to, appealing to, or available to the broad masses of the people <democratic art>4: favoring social equality : not snobbish

These definitions work best with a value of equality or equal treatment under the law.

Next, "society." This shouldn't be too problematic. I like Merriam Webster's here:

3 a: an enduring and cooperating social group whose members have developed organized patterns of relationships through interaction with one another b: a community, nation, or broad grouping of people having common traditions, institutions, and collective activities and interests

Either one would probably work for the purposes of your case.

Can we define the phrase as a phrase? Perhaps. A definition that comes quite close is found in an analytical passage from Cuban Communism, by Horowitz and Suchlicki, p. 430:

A truly democratic society is defined not only by its party structure, constitution, delegation of authority, or electoral representation, but by its capacity to tolerate and incorporate dissent.

If felon disenfranchisement becomes a way of squelching dissent, we have a germane definition.

If I can find better examples, I'll update this entry.

Last, for a more substantial analysis of the normative attractions and problems of democracy, see the Stanford Encylopedia's entry on the subject. Particularly useful is the section discussing the values justifying democracy--a few of which could be used as core values in your constructive.

defining felons in the Nov/Dec LD resolution

When it comes to the Nov/Dec LD resolution, defining "felons" is, of course, vital to the way the debate runs. Since the resolution is focused on "democratic societies," and not on the United States in particular, it's important to note that the definition must apply outside an American legal framework. Still, since the U.S. has the most comprehensive disenfranchisement among modern democracies, we can examine the multiple ways felons lose the franchise in different states.

In "Lock Them up and Throw away the Vote," found in the winter 2005 edition of the Chicago Journal of International Law, Robin Nunn delineates at least four potential ways felons are disenfranchised.

Maine and Vermont are the only states without some form of felon disenfranchisement. The remaining forty-eight states can be divided into one of four disenfranchisement practices: (1) disenfranchise prison inmates, (2) disenfranchise felon offenders who are incarcerated or on parole, (3) disenfranchise felon offenders serving any type of sentence (incarcerated, on parole, or probation), or (4) disenfranchise felon offenders after completion of sentence. Specifically, in the fourth category, fourteen states mandate that exoffenders who have fully served their sentences remain disenfranchised for a certain period of time, usually a minimum of five years after they are released. Seven of these states deny the right to vote to all ex-offenders who have completed their sentences. As a result, nearly three-quarters of this disenfranchised population is not in prison. Rather, these individuals are on probation or parole or have completed their sentences.

Though this list concerns the system in the United States, the affirmative can argue that the negative has to defend at least the first three categories, which are found in some form all over the globe. (Regarding the fourth, the United States is unique in disenfranchising ex-felons.)

Negatives should watch out for affirmatives using a dictionary definition that includes no time limit, and doesn't presume ex-felon status. Consider, for example, dictionary.com:

1. Law. a person who has committed a felony.

An affirmative using this all-inclusive definition would try to pin the fourth category (above) on the negative, and make disenfranchisement permanent, which is much more difficult for the negative to defend.

Even Black's Law (eight edition) merely defines a felon as "a person who has been convicted of a felony." Without an expiration date, the negative is in trouble.

The key, then, for the Neg, is to differentiate felons and ex-felons, and declare category four out-of-bounds in the debate.

The Neg needs to have a reasonable definition of "felony," too, in order to stave off any potential Aff argument that felonies vary too widely in different democratic societies, making disenfranchisement unjust.

Any other definitions worth considering? Post them in the comments.

several reasons felons should have the franchise

The November/December LD resolution poses a curious question: should convicted criminals have the right to vote? In his article "Liberal and Republican Arguments Against the Disenfranchisement of Felons," found in the Winter 2005 edition of Criminal Justice Ethics, Jeffrey Reiman discusses three philosophical justifications for disenfranchising felons, then knocks them down in order.

Disenfranchisement is either aimed at "preserving the purity of the ballot box," that is, protecting the electoral process from morally unsuitable voters; or it is viewed as criminals' rightful punishment; or it is viewed as ratifying the criminal's own surrender of his right to vote by violating the social contract.

1. The first reason is proffered by small-r republicans, those who believe that government is an arbitrator, inculcator, and encourager of virtue. Felons are less virtuous, goes the basic claim, so they should be denied the vote. In response, Reiman essentially establishes that criminals are, for the most part, just like everybody else. They may "act out" in certain contexts and at certain times, but so does everyone--it's just that criminals get caught. To demonstarate, Reiman cites a study that finds that

...in a recent survey of 522 professional criminologists, 25 percent admitted to committing battery, and 22 percent to burglary, at some point in their lives. Nineteen percent admitted to committing tax fraud at some point, 7 percent in the past year [Zaitzow and Robinson, "Criminologists as Criminals"].

Reiman argues, and I agree, that criminologists are probably as decent a representative sample as any. Furthermore, plenty of noncriminal behaviors aren't exactly virtuous--debauchery, adultery, gambling--but since they're not illegal, we don't disenfranchise drunks, Lotharios, and high rollers. Reiman rebuts several other reasons a republican might disenfranchise felons, but ultimately, his argument concludes with a turn:

In addition to believing that virtue is necessary for political participation, republicans also believe that political participation enhances virtue. Thus, as strong as any republican case may be for felon disenfranchisement, an equally strong republican case can be made for the value of enfranchising felons.

More on this in a bit.

2. When discussing the use of disenfranchisement as a punishment, Reiman concedes that denying a felon the vote is logically compatible with retribution. His objection is instead pragmatic.

Though it is compatible with just retribution, it is a futile form of retribution since most criminals do not even know that their crimes can result in loss of the right to vote and, given the young age at which most crimes are committed, most criminals probably do not care about voting at the time they commit their crimes. Consequently, I contend that disenfranchisement is not sensible punishment policy: it will not deter crime, nor will offenders see it as their just deserts. It is pointless as incapacitation, and it goes without saying that it serves no rehabilitative function.

3. What of contractarian arguments, then? Here Reiman first goes on the defensive, then positively argues for the franchise.
a. Defensively, Reiman claims that criminals, although they flout the social contract, still recognize its legitimacy (although the counterclaim here is that actions speak far louder than thoughts). Thus, they haven't "taken back" the social contract, much as a person who breaks a promise can still feel the sting of guilt.
b. Criminals still possess rights, even civil rights, after conviction.

When criminals are apprehended, they still have legal rights against certain forms of treatment, and they have the legal right to appeal to a judge to enforce those rights.... Moreover, when they are imprisoned, they not only retain many of their rights, they also retain their legal duties.... Though criminals violate the social contract in committing crime, we do not thereby treat them as surrendering all the rights that they have under the contract.

c. On the offense, Reiman compares disenfranchisement to a Lockean conception of slavery, but only extends that line of reasoning to ex-felons. However, from a virtue angle, Reiman is able to justify suffrage for felons and ex-felons alike.

Allowing felons to vote offers the possibility of instilling and strengthening civic virtue in them. On the other hand, by opening ourselves to fellow citizens who have gone afoul of the law, by allowing ourselves to see their normalcy and to hear from them the way society looks to them, we enlarge our own social sympathies and social knowledge, and we exercise a civic version of the virtue of charity. In addition, by granting felons and ex-felons the right to self-government to which they are entitled as human beings, we exercise and strengthen in ourselves the civic virtue of justice. Enfranchising felons can make us all better citizens.

Voting for felons: good for them, and good for everyone else.

Resolved: In a democratic society, felons ought to retain the right to vote.

The November/December Lincoln-Douglas debate topic has been released:

In a democratic society, felons ought to retain the right to vote.

Some potential Aff values: democracy, justice, human rights, human dignity, equality, autonomy, societal welfare. Some potential Neg values: democracy, justice, the rule of law, societal welfare.

Obviously, one of the most critical definitions is that of a "democratic society." Who determines what counts as democratic? What is the core value of a "democratic society?"

Some baseline question: why does anyone have (never mind deserve) the right to vote? Why is it stripped from felons? What's the difference between a civil right and a human right?

A tricky question: when is a felon not a felon? If your definition doesn't involve the expiration of a felon's term, watch out.

Much analysis coming: value/criterion pairs, crucial definitions, important articles, and more. Watch this space, and, as always, post questions, comments, and wild ideas. They're what make this blog most useful to all who come by for (quality, free) advice.

Articles and Analysis
1. I review an article explaining several reasons felons ought to have the franchise. [10/1]
2. International law analysis and links, plus a retributive perspective. [10/4]
3. A Rawlsian stance on the affirmative.
4. A list of potential value/criterion pairs.
5. State-by-state felon disenfranchisement laws are broken down here. [pdf]
6. Foucault makes an appearance.
7. Alaska senator Ted Stevens' "moral turpitude" disenfranchises him--but not quite yet.
8. Jason Kuznicki simplifies the connection between the social contract and voting.
9. I critique a couple cases in the latest LD mailbag.
10. Considering social contract neg cases, I ask a critical question.
11. A couple more cases, including two Social Contract negs, come in the mail.
12. I sketch a dignity-based neg.

Definitions
1. The importance of defining "felons."
2. "Democratic society."
3. Guest blogger OkieDebater defines key terms in his own way.

[A good introduction to different moral stances is here. For novices, some basic resources are here. For information on the Sept/Oct "permissible killing" resolution, go here. Also for novices: which philosophers should you study first?]


Update 12/1/08: The topic for January / February has been posted.