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.