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Reawakening “Privileges or
Immunities”: An Originalist Blueprint
for Invalidating State Felon
Disenfranchisement Laws
I.
II.

III.

IV.

INTRODUCTION ...................................................................1285
FELON DISENFRANCHISEMENT LAWS IN THE
UNITED STATES ..................................................................1288
A.
History and Impact.................................................1289
B.
Richardson: A Historical Anomaly .........................1290
C.
Richardson’s Critics ................................................1292
1.
Section 2 in Its Historical Context..............1293
2.
The Role of the Thirteenth and
Fifteenth Amendments................................1294
3.
Richardson and the Right of
Felons to Vote ..............................................1296
SAENZ V. ROE: REVIVING A DEAD LETTER? ........................1299
A.
Originalism in the Privileges or
Immunities Context ................................................1302
B.
Constitutional Text .................................................1303
C.
Divining Meaning: The Understanding
of the Members of the Thirty-Ninth Congress ........1304
D.
Divining Meaning: The Understanding
of the Ratifiers ........................................................1307
E.
Slaughtering Slaughter-House...............................1309
RECONCILIATION ................................................................1311
I. INTRODUCTION

Terrence Johnson, Jim Harris, and Alexander Friedman, all
Tennessee residents, have a few things in common. All are convicted
felons: Johnson for federal wire fraud, Harris for drug offenses and
burglary, and Friedman for assault and aggravated armed robbery.1
1.
Complaint at 1–3, Johnson v. Bredesen, 579 F. Supp. 2d 1044 (M.D. Tenn. 2008) (No.
3:08cv0187).

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All had completed their respective terms of imprisonment, parole, and
probation for those offenses by February 2008.2 But all nevertheless
were saddled with various unpaid legal obligations: Johnson with
$40,000 in restitution in connection with his offense and $1,200 in
overdue child support payments; Harris with $2,500 in overdue child
support payments; and Friedman with $1,000 in restitution in
connection with his offenses.3 Finally, all wished to vote in the 2008
election4 but could not do so because of a Tennessee statute that
conditions the restoration of voting rights for those “rendered
infamous” because of a criminal conviction on the payment of courtordered restitution and child support obligations.5 The trio filed suit in
advance of the election, hoping to invalidate the statute and, in
Johnson’s words, “have the opportunity to become . . . fully productive
citizen[s] again.”6 But in September 2008, a federal judge rejected
their challenge.7 As a result, when the November election arrived,
these men simply could not vote.
While disenfranchisement laws like Tennessee’s may seem
extreme, U.S. courts consistently have rejected challenges to statutes
that disenfranchise felons both during and after their terms of
incarceration.8 In the leading case on the subject, Richardson v.
Ramirez, the Supreme Court confronted the issue of whether a
California law excluding ex-felons from the franchise could withstand
the strict scrutiny analysis ordinarily required for suspect
classifications under the Equal Protection Clause of the Fourteenth
Amendment.9 The Court did not address this question directly,
however, instead finding “affirmative sanction” for felon

2.
Id.
3.
Id.
4.
Id.
5.
“[A] person shall not . . . have the right of suffrage restored [after being deprived of it by
the fact of conviction], unless the person has paid all restitution to the victim or victims of the
offense . . . [and] is current in all child support obligations.” TENN. CODE ANN. § 40-29-202(b)–(c)
(West 2009). Until recently, Tennessee’s legal process for restoring the voting rights of felons was
the most “confusing and complicated” in the country. Press Release, ACLU, ACLU Sues over
Tennessee’s Felon Disenfranchisement Laws (Feb. 25, 2008), http://www.aclu.org/votingrights
/gen/34201prs20080225.html.
6.
Press Release, supra note 5.
7.
Johnson, 579 F. Supp. 2d at 1048.
8.
See, e.g., Wesley v. Collins, 791 F.2d 1255, 1257, 1263 (6th Cir. 1986) (rejecting
challenge to Tennessee’s felon disenfranchisement statute); Owens v. Barnes, 711 F.2d 25, 25–
26, 28 (3d Cir. 1983) (rejecting challenge to Pennsylvania’s statute denying convicted felons an
absentee ballot).
9.
418 U.S. 24, 27, 33 (1974).

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disenfranchisement laws in the rarely invoked Section 2 of that
Amendment.10 That Section provides, in pertinent part:
[W]hen the right to vote at any election . . . is denied to any of the male inhabitants of
such State . . . or in any way abridged, except for participation in rebellion, or other
crime, the basis of [the State’s] representation [in Congress] 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.11

As a result, the Court never subjected these laws to the strict
scrutiny analysis that the Richardson respondents, convicted felons
who had served their terms of incarceration, had argued was required
by the Court’s voting rights jurisprudence.12
There are strong arguments that the majority in Richardson
erred when it applied Section 2 of the Fourteenth Amendment to
resolve the case. First, Justice Thurgood Marshall’s dissent in
Richardson offers a persuasive alternative historical reading of
Section 2, suggesting that its Framers did not in fact intend that it
permit states to disenfranchise their felons.13 Second, a number of
scholars have argued that subsequent constitutional developments
effectively nullified the meaning of Section 2.14 Third, Richardson
focused exclusively on the number of states with felon
disenfranchisement laws at the time of the enactment of the
Fourteenth Amendment, and did not consider subsequent legislative
developments in the states.15 Taken together, these arguments
suggest that the Court ought to revisit its application of the
Fourteenth Amendment in the context of felon disenfranchisement.
The Court’s recent decision in Saenz v. Roe,16 which explored
the history of the Privileges or Immunities Clause of the Fourteenth
Amendment, may provide an opportunity for such a reexamination.
Courts and commentators generally have considered the Privileges or
Immunities Clause a nullity since the Slaughter-House Cases.17 In
Saenz, however, the Supreme Court “breathed new life” into the
10. Id. at 54.
11. U.S. CONST. amend. XIV, § 2 (emphasis added).
12. Richardson, 418 U.S. at 26, 33. For a discussion of the voting rights case law upon
which Respondents in Richardson relied, see infra note 82.
13. See discussion infra Section II.C.1.
14. See discussion infra Section II.C.2.
15. See discussion infra Section II.C.3.
16. 526 U.S. 489 (1999).
17. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 76 (1873). Judge Robert Bork famously
likened the Privileges or Immunities Clause of the Fourteenth Amendment to an “ink blot,”
arguing that the clause “has been a mystery since its adoption and in consequence has, quite
properly, remained a dead letter.” ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL
SEDUCTION OF THE LAW 160 (1990).

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Clause for the first time since the Slaughter-House decision, using it
to invalidate a California welfare restriction.18 The Court reasoned
that the California restriction violated the constitutional principle
that newly arrived citizens of a state are entitled to the same
privileges or immunities as other citizens of the same state.19 Seven
Justices adopted this interpretation, which was novel in its
exhumation of a long-dormant constitutional provision.20
In dissent, Justice Clarence Thomas, joined by Chief Justice
William Rehnquist, strongly disagreed with the majority’s broad
reading of the Clause.21 Justice Thomas believed that the Court
ascribed a meaning to the Clause that its drafters did not intend, and
rejected the notion of a “right to travel” as understood by the Justices
in the majority.22 Nevertheless, Justice Thomas indicated that he
would be open to reinterpreting the Clause’s meaning in an
“appropriate case” concerning a “fundamental right.”23
This Note argues that a challenge to felon disenfranchisement
laws under the Privileges or Immunities Clause of the Fourteenth
Amendment would present just such a case. Part II of this Note
provides a historical overview of felon disenfranchisement laws in the
United States and analyzes the Richardson decision. Part III
discusses the Saenz decision, demonstrates how it opens the door to a
reexamination of the Privileges or Immunities Clause of the
Fourteenth Amendment, and makes an originalist argument as to why
the Constitution preserves the right of felons to vote. Part IV
concludes with the proposition that this argument is not inconsistent
with the principle of stare decisis.
II. FELON DISENFRANCHISEMENT LAWS IN THE UNITED STATES
It is undisputed that the states historically have exercised
authority in excluding both felons and ex-felons from the franchise.24
Numerous authors, courts, and researchers have catalogued this

18. Saenz, 526 U.S. at 511 (Rehnquist, C.J., dissenting).
19. Id. at 502.
20. Id. at 492.
21. Id. at 521 (Thomas, J., dissenting).
22. Id.
23. Id. at 527–28.
24. See Richardson v. Ramirez, 418 U.S. 24, 48 (1974) (noting that “29 States had
provisions in their constitutions which prohibited, or authorized the legislature to prohibit,
exercise of the franchise by persons convicted of felonies or infamous crimes” at the time of the
adoption of the Fourteenth Amendment).

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history,25 and this Part does not reopen that historical inquiry. It does,
however, provide a brief introduction to the wide-ranging effects of
these laws in order to demonstrate their seriousness as an issue in the
modern era.
A. History and Impact
Laws denying the franchise to felons are commonplace in the
United States. At present, only two states permit incarcerated felons
to vote.26 Two others deny the franchise to all ex-offenders who have
completed their sentences; nine others either disenfranchise certain
categories of ex-offenders or permit those ex-offenders to apply for a
restoration of voting rights after a waiting period.27 Combined, these
laws disenfranchise over five million people in the United States,28
including a full fourteen percent of the black male voting population.29
State felon disenfranchisement laws deny the ballot to more people
than any other such mechanism in use today.30
The impact of these laws on elections is significant. A study on
the 2000 presidential election revealed that, had Florida’s felon
25. See id. at 41–55 (examining a variety of historical sources in noting the prevalence of
felon disenfranchisement laws throughout U.S. history); William Walton Liles, Challenges to
Felony Disenfranchisement Laws: Past, Present, and Future, 58 ALA. L. REV. 615, 616–18 (2007)
(tracing history of felon disenfranchisement laws from Greek and Roman history to prevailing
state standards); JAMIE FELLNER & MARC MAUER, HUMAN RIGHTS WATCH & THE SENTENCING
PROJECT, LOSING THE VOTE: THE IMPACT OF FELONY DISENFRANCHISEMENT LAWS IN THE UNITED
STATES
2–6
(1998),
http://www.sentencingproject.org/tmp/File/FVR/fd_losingthevote.pdf
(providing a comprehensive overview of felon disenfranchisement laws in the United States).
26. THE SENTENCING PROJECT, FELONY DISENFRANCHISEMENT LAWS IN THE UNITED STATES
1 (2008), http://www.sentencingproject.org/Admin/Documents/publications/fd_bs_fdlawsinus.pdf.
State-imposed restrictions on the franchise affect an individual’s right to vote in both state and
federal elections. State legislatures, not state citizens, are vested with authority to select
presidential electors. U.S. CONST. art. 2, § 1, cl. 2. At present, however, all of the states have
ceded that authority to the states’ citizens, who vote for presidential electors. Bush v. Gore, 531
U.S. 98, 104 (2000). Once the legislature has ceded the right to vote for presidential electors to
its citizens, that right is treated as fundamental, unless and until the state legislature chooses to
reclaim that power for itself. Id.
27. THE SENTENCING PROJECT, supra note 26, at 1.
28. Erika Wood, Don’t Disenfranchise Millions, POLITICO.COM, Mar. 4, 2009, http://www.
politico.com/news/stories/0309/19563.html.
29. Pierre Thomas, Study Suggests Black Male Prison Rate Impinges on Political Process,
WASH. POST, Jan. 30, 1997, at A3.
30. David Zetlin-Jones, Note, Right to Remain Silent?: What the Voting Rights Act Can and
Should Say About Felony Disenfranchisement, 47 B.C. L. REV. 411, 412 (2006). Notwithstanding
this history, the disenfranchisement of felons may well be in decline; at least a dozen states have
changed their election laws since 2003 to permit released ex-offenders to vote. Cynthia Dizikes,
More Felons Gaining the Right to Vote, L.A. TIMES, Oct. 27, 2008, at A8. Collectively, states have
restored voting rights to 760,000 felons in the last decade, although it is unclear how many of
those individuals have subsequently registered to vote. Id.

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disenfranchisement laws not been in place, Al Gore would have won
the state by more than 31,000 votes, and thus the presidential
election.31 Scholars have found that Richard Nixon’s popular vote total
in the 1960 election would have surpassed John Kennedy’s had
contemporary rates of criminal punishment been in effect.32 Analyzing
U.S. Senate elections, scholars have also uncovered evidence that
without felon disenfranchisement laws, the Democratic Party, and not
the Republican Party, may have held power in the Senate throughout
the 1990s.33
What is most notable about these disenfranchisement laws,
however, is not their potential effect on elections, but rather their
actual impact on the ability of individuals to exercise their
constitutionally protected rights. Felon disenfranchisement is the only
ballot restriction, other than age or mental infirmity, imposed on
American citizens.34 These exceptional laws represent “the sole
remaining vestige of states’ power to dis[en]franchise their citizens.”35
And they remain in place today because of the case of Richardson v.
Ramirez.
B. Richardson: A Historical Anomaly
The Richardson case, which presented the Supreme Court with
the question of whether felon disenfranchisement laws violate the
Equal Protection Clause of the Fourteenth Amendment because of
31. Jeff Manza & Christopher Uggen, Democratic Contraction? Political Consequences of
Felon Disenfranchisement in the United States, 67 AM. SOC. REV. 777, 793 (2002). The study took
into consideration voter preferences and participation rates in reaching this conclusion. Id. In the
2000 election, Florida disenfranchised approximately 827,000 potential voters, including 600,000
who had been completely discharged from the criminal system. Pamela S. Karlan, Convictions
and Doubts: Retribution, Representation, and the Debate over Felon Disenfranchisement, 56
STAN. L. REV. 1147, 1157 (2004).
32. Manza & Uggen, supra note 31, at 792. This calculation accounts for the fact that the
percentage of the population consisting of convicted felons was much lower in 1960 than it is
today. Id.
33. Id. at 790.
34. Voter disenfranchisement is the only remaining vestige of the European “culture of ‘civil
death’ ” that included “prohibitions on the right to participate in court proceedings, passing on an
estate to an heir, or enter into contracts.” Michael Fauntroy, Conservatives and Black Voter
Disenfranchisement, HUFFINGTON POST, June 8, 2007, http://www.huffingtonpost.com/michaelfauntroy-phd/conservatives-and-black-v_b_51338.html.
The Twenty-Sixth Amendment prevents state governments and the federal government from
denying or abridging the right to vote to anyone over the age of eighteen on account of age. U.S.
CONST. amend. XXVI, § 1. And a number of states deny the vote to those who are mentally
impaired, although they use different language to describe that category of individuals. See Pam
Belluck, States Face Decisions on Who Is Mentally Fit to Vote, N.Y. TIMES, June 19, 2007, at A1.
35. Zetlin-Jones, supra note 30, at 412.

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their disproportionate impact on black voters, is central to the debate
over the continuing vitality of these laws. The respondents in
Richardson, like the plaintiffs in the voting rights case discussed in
the Introduction, were three convicted felons who had completed their
respective sentences and terms of parole.36 At the time of suit, Article
III, Section 1 of the California Constitution prohibited the respondents
from voting in California because of their status as former felons.37
The respondents relied upon a number of voting rights decisions
handed down in the decade prior to Richardson to argue that access to
the franchise was a fundamental right,38 and that California could
assert no compelling interest sufficient to justify the exclusion of
felons as a class from access to the ballot box.39 They argued that the
provision, as a result, violated their constitutional guarantee of equal
protection.40
The Richardson majority canvassed the text of the Fourteenth
Amendment, the legislative history of Section 2, and the historical
record of state disenfranchisement laws in holding for the
government. Section 2 was a compromise measure intended to compel
states of the former Confederacy to enfranchise blacks granted the
rights of citizenship by Section 1.41 As noted supra in the Introduction,
Section 2 provides that a state’s representation in the U.S. House of
Representatives will be reduced in proportion to the state’s denial of
the franchise to its citizens, “except for participation in rebellion, or
other crime.”42 The majority cited statements in support of a plain

36. Richardson v. Ramirez, 418 U.S. 24, 26 (1974).
37. This provision held that “no person convicted of any infamous crime . . . shall ever
exercise the privileges of an elector in this State.” CAL. CONST. art. II, § 1 (repealed 1972).
Proposition 7, passed at the general election held on November 7, 1972, repealed this section, but
replaced it with a substantially similar provision. Richardson, 418 U.S. at 28 n.2.
38. Justice Marshall cites a number of these cases in his dissent. Richardson, 418 U.S. at
77–78 (Marshall, J., dissenting).
39. Id. at 33.
40. Id.
41. CHESTER JAMES ANTIEAU, THE INTENDED SIGNIFICANCE OF THE FOURTEENTH
AMENDMENT 371–73 (1997); see also JOSEPH T. SNEED III, FOOTPRINTS ON THE ROCKS OF THE
MOUNTAIN: AN ACCOUNT OF THE ENACTMENT OF THE FOURTEENTH AMENDMENT 325 (1997)
(citing the Senate stalemate over the Apportionment Amendment as “proof” that the majority of
Congress saw no means to encourage black suffrage in the South other than by enacting the
Apportionment Amendment itself).
With respect to citizenship, Section 1 of the Fourteenth Amendment provides that “All
persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside.” U.S. CONST. amend. XIV, § 1.
42. U.S. CONST. amend. XIV, § 2.

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reading of the Section’s language by several representatives who
participated in the debates leading to the Amendment’s passage.43
The Court further noted that, at the time of the enactment of
the Fourteenth Amendment, twenty-nine states had constitutional
provisions authorizing, or permitting their respective legislatures to
authorize, prohibitions on the exercise of the franchise by convicted
felons.44 The Court used these arguments as evidence that Section 2
provided “affirmative sanction” for states to disenfranchise their
felons.45 In resting its decision on Section 2, however, the Court
neither addressed the question of whether these laws violated the
Equal Protection Clause nor subjected them to the strict scrutiny
analysis that such a violation would entail. This method of analysis,
and the consequences resulting from it, opened the door to criticism
from scholars and judges alike.
C. Richardson’s Critics
Despite longstanding adherence to the Richardson decision by
lower courts,46 the reasoning underlying the majority opinion has been
criticized on at least three independent grounds: one historical, one
structural, and one jurisprudential. The historical argument relies on
the legislative history of Section 2 and rejects the notion that it should
be read as a limitation on Section 1.47 The structural argument holds
that the enactment of subsequent amendments effectively rendered
Section 2 meaningless.48 The jurisprudential argument considers the
effect of recent developments at the state level that recast the right of
felons to vote as fundamental.49 All three arguments point the way to
a reconsideration of the felon disenfranchisement laws that
Richardson purported to confront.

43. See, e.g., CONG. GLOBE, 39th Cong., 1st Sess. 2535 (1866) (statement of Rep. Eckley of
Ohio):
The only objection I have to the proposition [that convicted criminals should not be
permitted access to the ballot box] is that it does not go far enough. I would
disenfranchise them forever. They have no right, founded in justice, to participate in
the administration of the Government or exercise political power.
44. Richardson, 418 U.S. at 48.
45. Id. at 54.
46. See Angela Behrens, Note, Voting—Not Quite a Fundamental Right? A Look at Legal
and Legislative Challenges to Felon Disfranchisement Laws, 89 MINN. L. REV. 231, 251 (2004)
(noting that “[c]ourts have adhered rather rigidly to the Ramirez decision, and its precedent has
thus far remained untouched”).
47. See discussion infra Section II.C.1.
48. See discussion infra Section II.C.2.
49. See discussion infra Section II.C.3.

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1. Section 2 in Its Historical Context
Justice Marshall’s dissent in Richardson offers a persuasive
alternative reading of the history accompanying the drafting of
Section 2. He took issue, in part, with the majority’s interpretation of
the specific language of Section 2 itself. The Court placed particular
emphasis on the fact that Section 2 seemed explicitly to authorize the
states to abridge the right of their citizens to vote for “participation in
rebellion, or other crime.”50 In response, Justice Marshall pointed out
that an earlier version of Section 2 was sent to joint committee
without the “or other crime” language and emerged six weeks later
with that language “inexplicably tacked on.”51 The joint committee
offered no explanation for the inclusion of that language in the final
version.52 Moreover, Justice Marshall noted that the majority cited
only a single explanatory reference illuminating the meaning of this
language, and even that statement is ambiguous as to the intended
purpose of the “other crime” language of Section 2.53 In short, none of
the legislative history demonstrates unequivocally that the drafters of
Section 2 intended the provision to reserve to the states the ability to
disenfranchise those convicted of any and all crimes.54
Justice Marshall’s criticism rests on the further proposition
that a constitutional provision’s unexplained language cannot override

50. Richardson, 418 U.S. at 41–43.
51. Id. at 72–73 (Marshall, J., dissenting).
52. Two commentators have argued that the addition of this language, when placed in
context, makes sense “only as giving the states a broader weapon to use against former
Confederates.” Howard Itzkowitz & Lauren Oldak, Note, Restoring the Ex-Offender’s Right to
Vote: Background and Developments, 11 AM. CRIM. L. REV. 721, 746 n.158 (1973).
53. Richardson, 418 U.S. at 73 (Marshall, J., dissenting).
54. To the contrary, the basic purpose of the Fourteenth Amendment was to expand, not
restrict further, voting rights. JEFF MANZA & CHRISTOPHER UGGEN, LOCKED OUT: FELON
DISENFRANCHISEMENT AND AMERICAN DEMOCRACY 32 (2006). Until the Richardson decision, the
“obscure” second Section of that Amendment had been considered a “dead letter.” Id. at 31.
Adopting a literal reading of the text can also lead to absurd results in the modern context.
Disenfranchisement on the basis of a “crime” at the time of the adoption of the Fourteenth
Amendment applied only to those convicted of felonies at common law, a much narrower class of
offenses than that encompassed by the modern conception of “felony.” Id. A modern day
interpretation of the text that includes all crimes classified as felonies by the states could deprive
individuals of the right to vote for committing a felony as minor as conspiring to operate a motor
vehicle without a muffler. Richardson, 418 U.S. at 75 n.24 (Marshall, J., dissenting).
This interpretation also leaves open the possibility that a state might disenfranchise a citizen
for a misdemeanor offense, because Section 2 does not differentiate between felonies and
misdemeanors. Id. It makes far more sense to place the “other crimes” language in context, and
note that it appears along with “participation in rebellion,” which suggests, at a minimum, that
states may only disenfranchise those convicted of serious crimes akin to treason.

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its unambiguous historical purpose.55 In contrast to the majority’s
“affirmative sanction” reading of Section 2, Justice Marshall’s reading
of the Section cast it as a compromise between the Republicans in
Congress and the population in the southern states concerned about
an explicit grant of suffrage to blacks.56 Rather than a limitation on
other Sections of the Fourteenth Amendment expressly authorizing
the states to disenfranchise criminals, Section 2, according to Justice
Marshall, calls for reduced representation in Congress as a “special
remedy” for a specific type of electoral abuse: the disenfranchisement
of blacks.57 For Justice Marshall, Section 2 plainly “put Southern
States to a choice—enfranchise Negro voters or lose congressional
representation.”58 Nowhere in the history of the Amendment was it
suggested that the provision was intended to serve any broader
purpose.59
2. The Role of the Thirteenth and Fifteenth Amendments
A number of scholars have advanced a structural argument in
addition to the historical argument that considers other Amendments
in further undermining the Richardson majority’s reading of Section
2. That argument posits that the continued application of Section 2 is
incompatible with the later passage of the Fifteenth Amendment.
Section 2, standing alone, permits states to deny the franchise to
voters on the basis of race as long as those states are willing to incur a
proportionate reduction in their representation in the House of
Representatives.60 A mere two years later, Congress enacted the
Fifteenth Amendment, which absolutely prohibited voting restrictions

55. See Behrens, supra note 46, at 257 (“[W]hile the plain text of Section Two may at first
appear to sanction felon disenfranchisement, a closer look at the context of the Section reveals
that it had a limited historical purpose and the phrase ‘or other crime’ should not be interpreted
in this manner.”).
56. Richardson, 418 U.S. at 73–74 (Marshall, J., dissenting). This is the prevailing view
among those who have studied the enactment of the Fourteenth Amendment. Most of the
members of the Thirty-Ninth Congress did not believe that the Fourteenth Amendment extended
the franchise to blacks, in part because they did not believe the states of the former Confederacy
were prepared, or could be forced, to take that step. SNEED, supra note 41, at 325. As discussed
infra Section III.D, however, that belief ran counter to the beliefs both of those ratifying the
Amendment in state conventions, and of the general public, who understood the Fourteenth
Amendment to grant the franchise to blacks.
57. Richardson, 418 U.S. at 74.
58. Id. at 73.
59. DANIEL A. FARBER & SUZANNA SHERRY, A HISTORY OF THE AMERICAN CONSTITUTION 423
(2d ed. 2005) (describing Section 2 of the Fourteenth Amendment as merely a “Reconstructionera measure[] of no lasting significance”).
60. U.S. CONST. amend. XIV, § 2.

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based on “race, color, or previous condition of servitude.”61 By
substituting a total ban on disenfranchisement related to the
categories enumerated in the Fifteenth Amendment for the penalty of
reduced representation associated with such disenfranchisement
embodied in Section 2 of the Fourteenth Amendment, Congress
effectively rendered Section 2 “inoperative” for achieving its original
purpose.62
The Fifteenth Amendment’s “previous condition of servitude”
language is particularly noteworthy in this context, as it may be read
not only to apply to former slaves or indentured servants, but also to
former prisoners. As one scholar has argued, even if the Richardson
majority were correct in reading the “other crime” provision in Section
2 as permitting felon disenfranchisement, the Fifteenth Amendment’s
abolition of restrictions on the right to vote on the basis of “previous
condition of servitude” effectively nullified the “other crime” provision
of Section 2, at least in the case of felons who have served their
sentences but who nevertheless remain disenfranchised.63
This structural argument draws further support from the text
of the Thirteenth Amendment, which in part prohibits “involuntary
servitude” except “as a punishment for crime whereof the party shall
have been duly convicted.”64 The Thirteenth Amendment thus gives
meaning to the phrase “involuntary servitude” in such a way as to
empower the Fifteenth Amendment to override conflicting portions of
the Fourteenth Amendment, including Section 2’s arguable allowance
for state felon disenfranchisement schemes.65 Viewed together, the
61. Id. amend. XV, § 1 (“The right of citizens of the United States to vote shall not be denied
or abridged by the United States or by any State on account of race, color, or previous condition
of servitude.”).
62. See SNEED, supra note 41, at 331 (arguing that the Fifteenth Amendment did repeal
Section 2 of the Fourteenth Amendment); Gabriel J. Chin, Reconstruction, Felon
Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the
Fourteenth Amendment?, 92 GEO. L.J. 259, 260–62 (2004) (same). Scholars have made the related
argument that the Nineteenth Amendment repealed Section 2’s exclusion of states from penalty
for disenfranchising women, and that the Twenty-Sixth Amendment repealed Section 2’s
exclusion for voters ages eighteen to twenty-one. Behrens, supra note 46, at 257–58 & n.145; see
also Alec C. Ewald, “Civil Death”: The Ideological Paradox of Criminal Disenfranchisement Law
in the United States, 2002 WIS. L. REV. 1045, 1070–71 (declaring Section 2 a “dead letter”).
63. George P. Fletcher, Disenfranchisement as Punishment: Reflections on the Racial Uses
of Infamia, 46 UCLA L. REV. 1895, 1903–04 (1999).
64. U.S. CONST. amend. XIII, § 1 (“Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly convicted, shall exist within the
United States, or any place subject to their jurisdiction.”).
65. See Fletcher, supra note 63, at 1904 (arguing that combining the language of these
Amendments thus “generates a plausible reading that the Fifteenth Amendment, on its face,
prohibits depriving felons of their voting rights simply because they were subject to ‘involuntary
servitude’ as punishment for their crime”).

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Reconstruction Amendments should be read not to permit states to
disenfranchise felons, but in fact explicitly to prohibit them from doing
so.
These historical and structural arguments, in contrast to the
arguments of the majority opinion in Richardson, afford a sincere
respect for the basic purpose of Section 2, which was to safeguard the
rights of newly enfranchised black voters during Reconstruction.66
Paradoxically, given the disproportionate percentage of the felon
population that is black, Richardson succeeded in transforming
Section 2 “from a shield protecting the freedman’s voting rights into a
sword for the lifetime disenfranchisement of his descendants.”67 As the
next Section demonstrates, it also represents a historical anomaly in
the Supreme Court’s voting rights jurisprudence—and one that is ripe
for reconsideration.
3. Richardson and the Right of Felons to Vote
The Supreme Court has held that access to the franchise is a
fundamental right.68 This is true even though many of the Framers of
the Constitution, as well as many of those responsible for drafting and
enacting the Fourteenth Amendment, did not consider the right to
vote to be “fundamental,” in the sense of being a natural right.69 They
believed it instead to be a political right, derived from membership in
a republic,70 although not necessarily derived from the mere fact of
citizenship.71 Because the Court now recognizes the right as

66. ANTIEAU, supra note 41, at 371–72.
67. John R. Cosgrove, Four New Arguments Against the Constitutionality of Felony
Disenfranchisement, 26 T. JEFFERSON L. REV. 157, 169 (2004); see also Fletcher, supra note 63, at
1904:
Because patterns of law enforcement have changed over the years, because the
number of felons convicted has greatly increased and because a large percent[age] of
those convicted are black, the policy of felon disenfranchisement sharply reduces the
voting rights of African Americans. Thus, a constitutional provision designed in 1868
to improve the political representation of blacks has turned out in the 1990s to have
precisely the opposite effect.
68. “Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic
society.” Reynolds v. Sims, 377 U.S. 533, 561–62 (1964); see also Kramer v. Union Free Sch.
Dist., 395 U.S. 621, 626 (1969) (characterizing statutes distributing the franchise as the
“foundation of our representative society”); Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (finding
the franchise to be a “fundamental political right, because [it is] preservative of all rights”).
69. DAVID SKILLEN BOGEN, PRIVILEGES AND IMMUNITIES: A REFERENCE GUIDE TO THE
UNITED STATES CONSTITUTION 14, 49–50 (2003).
70. MICHAEL J. PERRY, WE THE PEOPLE: THE FOURTEENTH AMENDMENT AND THE SUPREME
COURT 60 (1999).
71. Id. at 61.

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fundamental, however, it subjects restrictions on the franchise to
strict scrutiny, the most exacting constitutional standard.72
In the decade preceding the Richardson decision, the Court
used strict scrutiny analysis to invalidate a number of statutes placing
restrictions on access to the franchise.73 By finding Section 2
applicable to the special case of felon disenfranchisement, however,
the Richardson Court distinguished such voting restrictions from the
restrictions it had rejected,74 and never subjected felon
disenfranchisement laws to the strict scrutiny they otherwise would
have merited.
For the reasons cited supra in II.C.1 and II.C.2, the Court
should not have applied Section 2 in Richardson to uphold California’s
felon disenfranchisement law. However, simple reliance on the
Supreme Court’s voting rights jurisprudence would not have saved the
respondents in Richardson. Richardson presented a more specific
question than whether access to the franchise was burdened, and
answering that specific question is key to its resolution.75 In
particular, the question is not whether the right of persons to vote is
fundamental—it plainly is—but whether the right of felons to vote is
fundamental.
As noted in Part II supra, state legislatures historically have
enacted laws disenfranchising felons.76 This history offers strong
evidence that the right of felons to vote was not considered
fundamental at the time of the enactment of the Fourteenth
Amendment. As with the eventual recognition of voting as a
fundamental right, however, modern developments can displace
historical understandings.77 At the time of the enactment of the
72. Under this analysis, courts will only uphold a law if it is narrowly tailored to serve a
compelling government interest. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1,
127 S. Ct. 2738, 2752 (2007) (stating strict scrutiny standard).
73. See infra note 74.
74. See, e.g., Dunn v. Blumstein, 405 U.S. 330, 345, 355–60 (1972) (rejecting Tennessee’s
durational residency requirement for voting in state elections); Harper v. Va. Bd. of Elections,
383 U.S. 663, 668 (1966) (rejecting poll tax as “not germane to one’s ability to participate
intelligently in the electoral process”).
75. See Washington v. Glucksberg, 521 U.S. 702, 772–73 (1997) (Souter, J., concurring)
(discussing the importance of identifying the precise level of generality at which courts should
examine claims that particular liberty interests are being violated).
76. See supra note 24 and accompanying text.
77. See, e.g., Roper v. Simmons, 543 U.S. 551, 564 (2004) (citing the fact that thirty states
prohibited the death penalty for juveniles as evidence that juveniles had a fundamental right not
to be subject to the death penalty); Atkins v. Virginia, 536 U.S. 304, 314–15 (2002) (citing the
fact that thirty states prohibited the death penalty for the mentally retarded as evidence that the
mentally retarded had a fundamental right not to be subject to the death penalty). In both Roper
and Atkins, the Court pointed, respectively, not only to the number of states that prohibited the

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Fourteenth Amendment, twenty-nine of the existing thirty-seven
states78 had constitutional provisions that either prevented, or
authorized their legislatures to prevent, those convicted of felonies or
infamous crimes from voting.79 At present, however, only two states
deny the franchise to all ex-offenders who have completed their
sentences, and only nine others disenfranchise specific classes of exoffenders and/or subject those convicted of specific offenses to a
waiting period before their right to vote is restored.80 Since 1997,
moreover, nine states repealed or amended their lifetime
disenfranchisement laws, two states expanded voting rights to include
persons on probation or parole, and five states made it easier for
persons deprived of the franchise to regain it.81 In other words, since
the time of the Fourteenth Amendment’s enactment, states
consistently have amended their laws to lift the voting sanctions they
previously had placed on felons. This unmistakable trend reveals an
emerging national consensus that a felony conviction, standing alone,
should not disqualify someone from access to the franchise.82

death penalty for each of the categories it considered, but also to the “consistency of the direction
of change” toward exempting these classes of people from the death penalty in identifying the
fundamental rights at issue. Roper, 543 U.S. at 565–67; Atkins, 536 U.S. at 313–16.
78. THE TIME ALMANAC 653, 655–59, 661–81 (2009).
79. Richardson v. Ramirez, 418 U.S. 24, 48 (1974).
80. THE SENTENCING PROJECT, supra note 26, at 1.
81. RYAN S. KING, EXPANDING THE VOTE: STATE FELONY DISENFRANCHISEMENT REFORM,
1997–2008, at 1 (2008), http://www.sentencingproject.org/Admin/Documents/publications/fd_
statedisenfranchisement.pdf.
82. This Note does not address whether incarcerated felons have a fundamental right to
vote, although the fact that forty-eight states and the District of Columbia all prohibit such
persons from voting strongly suggests that they do not. Id. Nevertheless, much of the logic
underlying the voting rights cases that preceded Richardson can be applied in equal measure to
the issue of felon disenfranchisement. In Carrington v. Rash, for example, the Court considered
the validity of a Texas constitutional provision prohibiting any member of the U.S. Armed Forces
who moved his home to Texas in the course of his military service from voting in any Texas
election as long as he remained a member of the Armed Forces. 380 U.S. 89, 89 (1965). Texas
justified this provision on the grounds that the “concentrated balloting” of military personnel
might collectively overwhelm the voting power of a small local civilian community. Id. at 93.
Underlying this provision was the fear that a base commander opposed to local policy might
wield disproportionate political influence in coercing his men to vote out officials responsible for
that policy. Id.
The Court rejected this argument, reasoning that mere fears of how a group might vote could
not justify such a restriction. Id. at 94. While a local community might also fear that a
disaffected group of felons in local prisons would, if given access to the franchise, form a “cell
bloc” designed to disrupt local policies through the voting booth, such concerns, standing alone,
that a certain group of voters will vote in a certain way cannot sustain the restriction of a right
as fundamental as voting. Id. at 91–94. Moreover, there is no evidence to suggest that felons
would even consider voting disruptively. See Scott M. Bennett, Giving Ex-Felons the Right to
Vote, 6 CAL. CRIM. L. REV. 1, 6 (2004) (“[T]here is no realistic possibility that convicted felons

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Combining the historical and structural arguments that
Section 2 is inoperative for the purpose of permitting states to
disenfranchise felons, and the jurisprudential argument that the
states have moved consistently to strike down their felon
disenfranchisement statutes, yields the conclusion that the
Richardson case was wrongly decided. Despite the abrupt about-face
in voting rights jurisprudence that Richardson represents, lower
courts have dutifully applied its holding for more than thirty years.83
Stare decisis counsels that the Richardson decision should not be
disturbed, regardless of whether it reached the wrong result. But the
Supreme Court’s recent decision in Saenz v. Roe84 may provide an
opportunity for the Court both to invalidate felon disenfranchisement
laws without having to confront the equal protection question raised
in Richardson and restore meaning to a long-dormant provision of the
Fourteenth Amendment in the process.
III. SAENZ V. ROE: REVIVING A DEAD LETTER?
The case of Saenz v. Roe85 potentially marks the beginning of a
new chapter in the Court’s understanding and application of the
Privileges or Immunities Clause of the Fourteenth Amendment. The
Saenz decision is of principal importance, for the purposes of this
Note, in demonstrating that the Court has indicated an openness to a
broader interpretation of the Privileges or Immunities Clause of the
Fourteenth Amendment than history has afforded it. This new
interpretation, in addition, is arguably capacious enough to bring the
issue of felon disenfranchisement within its ambit.86
In Saenz, for the first time in sixty-four years and for only the
second time in the history of American jurisprudence, the Supreme
Court relied upon the Privileges or Immunities Clause to invalidate a

could alter the content or administration of most aspects of the criminal law, even if they wanted
to . . . .”).
83. Behrens, supra note 46, at 251.
84. 526 U.S. 489 (1999).
85. Id.
86. See David H. Gans, The Unitary Fourth Amendment, 56 EMORY L.J. 907, 927–28 (2007)
(proposing a “unitary” reading of Section 1 of the Fourteenth Amendment that would
“reinvigorate” the Privileges or Immunities Clause and make it the “basis” for the protection of
fundamental rights). But see John Yoo, The Supreme Court Rediscovers an Old Clause, WALL ST.
J., May 24, 1999, at A31 (“Liberals[,] academics and lawyers are already rushing to embrace
Saenz because they hope to rejuvenate their quest to use the Constitution to promote their
visions of social justice.”).

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state statute.87 Respondents in Saenz successfully challenged a
California law limiting families who recently had arrived in the state
to the welfare benefits of their state of prior residence for a twelvemonth period, rather than immediately providing them the benefits to
which they otherwise would be entitled as California residents.88 The
Court invalidated the statute on the grounds that it “tolerate[d] a
hierarchy of . . . similarly situated citizens based on the location of
their prior residence,” which the Privileges or Immunities Clause
would not permit.89 In doing so, the Court “breathe[d] new life” into
this historically underused Clause.”90
Of more specific relevance to the issue of felon
disenfranchisement, however, is the qualified objection to the
majority’s holding that Justice Thomas offered in his dissent.
Specifically, Justice Thomas opined that the drafters of the Clause did
not intend to include the “right to travel” meaning the majority in
Saenz attributed to it.91 Referencing the “landmark” opinion of Justice
Bushrod Washington in Corfield v. Coryell,92 which the principal
drafters repeatedly invoked in legislative debate,93 Justice Thomas
rejected the notion that the Clause referred to public benefits
established by positive law, which he believed the statute at issue
granted to California residents.94 Justice Thomas argued instead that
the drafters of the Fourteenth Amendment understood “privileges or
immunities” to mean “fundamental rights.”95 Such privileges and
immunities—as enumerated by Justice Washington—included, for
example, the enjoyment of life and liberty, the right to acquire and
possess property, and the right to file suit in the courts of a state.96
Justice Washington’s list also included, notably, “the elective

87. 526 U.S. at 511 (Rehnquist, C.J., dissenting). Chief Justice Rehnquist further noted
that the only other decision in which the Court invoked the Clause was overruled just five years
later. Id.
88. CAL. WELF. & INST. CODE § 11450.03 (West Supp. 1999), invalidated by Saenz v. Roe,
526 U.S. 489 (1999).
89. Saenz, 526 U.S. at 506–07.
90. Id. at 511 (Rehnquist, C.J., dissenting); see also id. at 527 (Thomas, J., dissenting)
(noting that the majority “appears to breathe new life into the Clause”).
91. Id. at 521 (Thomas, J., dissenting).
92. Corfield v. Coryell, 6 F. Cas. 546 (C.C.E.D. Pa. 1825) (No. 3230).
93. FARBER & SHERRY, supra note 59, at 428–29.
94. Saenz, 526 U.S. at 527 (Thomas, J., dissenting).
95. Id.
96. Corfield, 6 F. Cas. at 551–52.

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franchise, as regulated and established by the laws or constitution of
the state in which it is to be exercised.”97
Justice Thomas’s dissent in Saenz is even more remarkable,
however, for what it portends about the willingness of the
conservative Justices on the Supreme Court to reconsider the
significance of the Privileges or Immunities Clause of the Fourteenth
Amendment.98 Justice Thomas rejected the manner in which the
majority sought to redeploy the Clause as out-of-step with its
historical underpinnings.99 But he did not indicate an aversion to
reawakening the Clause per se; to the contrary, and notwithstanding
his dissent, he declared that he would be “open to reevaluating [the
Clause’s] meaning in an appropriate case” concerning a fundamental
right as understood by those enacting the Fourteenth Amendment.100
In Sections III.A-E, this Note accepts Justice Thomas’s
invitation to reevaluate the historical meaning of the Clause through
an originalist lens. Section III.A briefly introduces the concept of
originalist analysis in this context. Section III.B argues that a
straightforward reading of the relevant constitutional text empowers
the federal government to prevent states from denying their citizens
the ability to exercise fundamental rights. Section III.C concedes that
the majority of the members of the Thirty-Ninth Congress did not
believe that the Privileges or Immunities Clause prevented states
from disenfranchising certain classes of their citizens, but Section
III.D counters that a majority of those in the state ratifying

97. Id. at 552. “Regulation” here is given its ordinary meaning in the context of elections, as
referring to such state requirements as residency and registration with local voting precincts. It
is not taken to mean any restriction that a state wishes to place on access to the ballot box. But
see Eric R. Claeys, Blackstone’s Commentaries and the Privileges or Immunities of United States
Citizens: A Modest Tribute to Professor Siegan, 45 SAN DIEGO L. REV. 777, 800 (2008) (criticizing
Justice Washington’s inclusion of access to the franchise among the rights protected by the
Privileges or Immunities Clause of the Fourteenth Amendment).
98. Chief Justice Rehnquist joined Justice Thomas in his dissent. Saenz, 526 U.S. at 521
(Thomas, J., dissenting). The remaining seven Justices signed on to a broad reading of the
Privileges or Immunities Clause in the “right to travel” context. Id. at 492. Justice Thomas also
indicated that he considered the demise of the Clause to be a contributing factor in the “disarray”
of Fourteenth Amendment jurisprudence. Id. at 527–28 (Thomas, J., dissenting).
99. Justice Thomas was also voicing, in part, his aversion to the Court’s historically broad
reading of the Due Process Clause of the Fourteenth Amendment. He specifically lamented what
he considers the Court’s use of the Due Process Clause as a “convenient tool for inventing new
rights, limited solely by the ‘predilections of those who happen at the time to be Members of this
Court.’ ” Id. at 528 (Thomas, J., dissenting) (quoting Moore v. E. Cleveland, 431 U.S. 494, 502
(1977)).
100. Id. Justice Thomas has not given up on the possibility that a reevaluation will
ultimately occur. See Troxel v. Granville, 530 U.S. 57, 80 n.* (2000) (Thomas, J., concurring)
(“This case also does not involve a challenge based upon the Privileges [or] Immunities Clause
and thus does not present an opportunity to reevaluate the meaning of that Clause.”).

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conventions did believe that the Clause prevented states from doing
so. Section III.E concludes with an argument for overruling the
Slaughter-House Cases, the last remaining hurdle to an application of
the Privileges or Immunities Clause consistent with the meaning
history imputes to it. The overall thrust of these Sections is that an
originalist reading of the Clause makes it a plausible tool for
invalidating felon disenfranchisement laws.
A. Originalism in the Privileges or Immunities Context
The notion of “originalism” in constitutional interpretation is
itself open to a variety of interpretations.101 The central requirement
in conducting an originalist analysis, however, is that a judge apply
the generally accepted, objective understanding of a constitutional
text at the time of the text’s enactment in considering how that
language answers modern-day constitutional questions.102 Justice
Thomas’s dissent in Saenz, which considered the origin of the phrase
“privileges or immunities” in American law and the understanding of
that phrase by both American colonists and the members of the
Thirty-Ninth Congress,103 provides ample evidence of the sort of
searching historical inquiry he would undertake in evaluating the
original meaning of the Privileges or Immunities Clause.104
Importantly, substantial historical evidence of the sort to which
Justice Thomas105 and other originalists traditionally turn exists to
support the notion that the Privileges or Immunities Clause was
intended to apply to the franchise.106
101. See generally GREGORY BASSHAM, ORIGINAL INTENT AND THE CONSTITUTION: A
PHILOSOPHICAL STUDY 17–37 (1992) (canvassing various types of originalist analysis).
102. Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States
Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION 3,
16–18, 23–25, 37–41 (Amy Gutmann ed., 1997).
103. Saenz, 526 U.S. at 522–27.
104. One biography described his dissent in Saenz as “the most thorough treatment of the
[Privileges or Immunities] [C]lause in a Court opinion since the Slaughter-House Cases.”
ANDREW PEYTON THOMAS, CLARENCE THOMAS: A BIOGRAPHY 563 (2001).
105. In writing his opinions, Justice Thomas frequently “relies on historical sources,
founding documents, contemporaneous evidence . . . and timeless principles of natural law.”
HENRY MARK HOLZER, THE SUPREME COURT OPINIONS OF CLARENCE THOMAS, 1991–2006: A
CONSERVATIVE’S PERSPECTIVE 156 (2007). Professor Holzer further notes that “[i]n no opinions
[he has] read, especially in modern times, has there been the consistent originalism and
dedication to founding principles and documents that one sees in the Supreme Court
jurisprudence of Justice Thomas.” Id. at 155.
106. The fact that the Privileges or Immunities Clause has been so underused over time has
had another effect on understanding the historical meaning of the clause: “that scholarship has
only begun to scratch the surface of a complicated historical reclamation project.” Claeys, supra
note 97, at 820.

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B. Constitutional Text
Understanding the plain-text meaning of the Privileges or
Immunities Clause requires some historical unpacking. On the one
hand, the language of the Clause seems to guarantee the protection of
the privileges or immunities of United States citizens as such:107 “No
State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States.”108 At first blush, this
suggests that the Clause was meant only to prevent the states from
enacting legislation that infringed upon the privileges or immunities
of national citizenship, not to prevent state legislatures from denying
their own citizens certain privileges or immunities of state
citizenship.109
An equally plausible reading, however, is not that the Clause
drove a wedge between state and national citizenship, but that in fact
it effectively “staple[d] them together” by folding the possession of the
rights of state citizenship into a right of national citizenship.110 As
noted by Senator George Boutwell during the debate on the Civil
Rights Act of 1875, “As a citizen of the United States, the first right of
the citizen of the State is that he shall enjoy all the privileges and
immunities of a citizen of the State.”111
Senator Boutwell’s view reflects the fact that, after
Reconstruction, the rights of state citizenship were to be understood
not as distinct from national citizenship, but instead as derivative of
national citizenship.112 This view is further supported by comparing
107. See Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 74 (1873):
[W]e wish to state here that it is only the [privileges and immunities of a citizen of the
United States that] are placed by this clause under the protection of the Federal
Constitution, and that [those of a citizen of a State], whatever they may be, are not
intended to have any additional protection by this paragraph of the amendment.
108. U.S. CONST. amend. XIV, § 1.
109. See Slaughter-House Cases, 81 U.S. at 74:
It is a little remarkable, if this clause was intended as a protection to the citizen of a
State against the legislative power of his own State, that the word citizen of the State
should be left out when it is so carefully used, and used in contradistinction to citizens
of the United States, in the very sentence which precedes it.
110. John Harrison, Reconstructing the Privileges or Immunities Clause, 101 YALE L.J. 1385,
1415 (1992); see also Philip B. Kurland, The Privileges or Immunities Clause: “Its Hour Come
Round at Last”?, 1972 WASH. U. L.Q. 405, 414–15 (arguing that even if the Privileges or
Immunities Clause were read narrowly to avoid removing the regulation of the affairs of U.S.
citizens from the states to the federal government, “other means”—namely, the Due Process and
Equal Protection Clauses of the Fourteenth Amendment—have since been employed to
accomplish that objective).
111. 2 CONG. REC. 4116 (1874).
112. ANTIEAU, supra note 41, at 6 (noting that, with the passage of the Fourteenth
Amendment, state citizenship would thereafter be subordinated to national citizenship).

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the Privileges or Immunities Clause of the Fourteenth Amendment
with the Privileges and Immunities Clause found in Article IV,
Section 2.113 While the latter Clause protects the privileges and
immunities of citizens of the “several States,” the former Clause
protects the privileges and immunities of citizens of the “United
States.”114 The broad reference in the Fourteenth Amendment’s
provision reflects the general thrust of the Amendment, as recognized
by the Court’s incorporation of most of the provisions in the Bill of
Rights against the states,115 which ensures that states may not use
federalism as a tool to avoid enforcing rights recognized as
fundamental.
This reading of the Clause explains how it may be used to
strike down not only state statutes infringing on the rights of state
citizenship, but also the rights of national citizenship. As discussed
infra Section III.E, understanding the Clause in this way destroys a
basic premise of the Slaughter-House Cases and frees a significant
millstone from around the Clause’s jurisprudential neck. However,
understood in conjunction with the meaning ascribed to it by those
responsible for its passage, as discussed infra Sections III.C and III.D,
such a reading also explains how the Clause can be used to invalidate
state laws that abridge the right to vote in both state and federal
elections.
C. Divining Meaning: The Understanding of the Members
of the Thirty-Ninth Congress
Apart from the text itself, the starting point for understanding
the meaning of the Privileges or Immunities Clause is the words of
those responsible for drafting and passing the Fourteenth
Amendment: the members of the Thirty-Ninth Congress. Upon initial
inspection, the history does not frame the Clause as an enfranchising
measure; the general consensus within the Thirty-Ninth Congress was
that the term “privileges or immunities” did not encompass the right

According to Sneed, the “prevailing view” at the time is exemplified by Rep. Reverdy Johnson’s
statement during the debates of the Thirty-Ninth Congress over the proposed Amendment that
“there is no definition as to how citizenship can exist in the United States except through the
medium of citizenship in a State.” SNEED, supra note 41, at 386.
113. U.S. CONST. art. IV, § 2 (“The Citizens of each State shall be entitled to all Privileges
and Immunities of Citizens in the several States.”).
114. U.S. CONST. amend. XIV, § 1.
115. See, e.g., Duncan v. Louisiana, 391 U.S. 145, 148 (1968) (noting that “many of the rights
guaranteed by the first eight Amendments to the Constitution have been held to be protected
against state action by the Due Process Clause of the Fourteenth Amendment”).

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to vote.116 Representative John Bingham of Ohio, the principal
draftsman of the Fourteenth Amendment,117 indicated that the
Amendment did “not give, as [Section 2 of the Amendment] shows, the
power to Congress of regulating suffrage in the several States.”118
Likewise, Senator Jacob Howard of Michigan flatly declared upon
introducing the proposed Amendment in the Senate that “[t]he right of
suffrage is not, in law, one of the privileges or immunities thus
secured by the Constitution.”119 The understanding of these
congressional leaders that neither privileges nor immunities extended
to voting was echoed by other members of both the House120 and the
Senate,121 although it was not universally held.122
The statements of these members, however, must be squared
with the content of Corfield v. Coryell,123 upon which many of them
relied in supplying meaning for the term “privileges or immunities.”124
Corfield is notable not for its subject matter—the opinion offers a dry
evaluation of the constitutionality of a New Jersey statute restricting
116. See ANTIEAU, supra note 41, at 22 (“Nevertheless, it must be recognized that the leaders
in both houses of the Thirty-Ninth Congress thought that the time was not yet ripe for conferring
the suffrage upon the freedmen.”).
117. FARBER & SHERRY, supra note 59, at 440, 622.
118. CONG. GLOBE, 39th Cong., 1st Sess. 2542 (1866).
119. Id. at 2766.
120. See, e.g., id. at 2462 (statement of Rep. Garfield) (lamenting the fact that the
Amendment did not touch upon the right to vote).
121. See, e.g., id. at 599 (statement of Sen. Trumbull) (indicating that the Civil Rights Bill of
1866, of which the passage of the Fourteenth Amendment was intended in part to justify, “ha[d]
nothing to do with the right of suffrage”).
122. Rep. Julian of Indiana, for example, argued that the right to vote was a natural right.
SNEED, supra note 41, at 93. Sen. Morrill similarly argued that “[t]o deprive the freedmen of the
vote was against republican principles.” Id. at 160. Even Rep. Bingham appeared to support this
position from time to time, arguing that freed slaves, as free persons, were entitled to the right to
vote. Id. at 113–14. Bingham also noted that the inclusion of a penalty in Section 2 for
disenfranchising blacks suggested not that the Constitution authorized such disenfranchisement,
but that it repudiated it. Id. at 115.
Lastly, even if voting were not considered to be a fundamental natural right prior to the
enactment of the Fourteenth Amendment, legislative history exists to suggest that the
Amendment was meant to secure both civil and political rights to freed blacks. See 2 FRANCIS
FESSENDEN, LIFE AND PUBLIC SERVICES OF WILLIAM PITT FESSENDEN 80–82 (Da Capo Press
1970) (1907) (discussing the rights of the newly freed slaves by the Joint Committee on
Reconstruction).
123. 6 F. Cas. 546 (C.C.E.D. Pa. 1823) (No. 3230).
124. Rep. Bingham made frequent appeals to Corfield’s language in congressional debate, as
he was very familiar with the opinion of his “mentor,” Justice Washington. ANTIEAU, supra note
41, at 49. Likewise, Sen. Howard answered the question of what rights were encompassed by the
term “privileges or immunities” by reading “what that very learned and excellent judge says
about these privileges and immunities of the citizens of each State in the several States.” CONG.
GLOBE, 39th Cong., 1st Sess. 2765 (1866). Sen. Howard in this instance was reading directly
from Justice Washington’s decision in Corfield. Id.

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the ability of citizens to dredge for oysters in the state’s public
waters125—but rather for its lengthy treatment of the common
understanding at the time of what the “privileges and immunities” of
state citizenship entailed.126 The opinion made two important
observations in this regard: first, that the Privileges and Immunities
Clause found in Article IV, Section 1 referred only to privileges and
immunities deemed “fundamental”;127 and second, that the list of
those fundamental privileges and immunities “clearly embraced” the
elective franchise.128
While Corfield is significant for providing a list of the privileges
and immunities understood as such at the time of the drafting of
Article IV, it is even more important in the present context for its
repeated invocation during legislative debate by the principal drafters
of the Fourteenth Amendment.129 The fact that members of the ThirtyNinth Congress not only regularly invoked, but held in high regard, an
opinion specifically identifying the elective franchise as a privilege or
immunity of citizenship, without ever disavowing this inclusion, offers
at least some evidence that they also counted the franchise among
those privileges and immunities.
It is possible that those members invoking Corfield were trying
to have it both ways; namely, by rooting their own understanding of
privileges and immunities in a well-known opinion by the respected
Justice Washington while simultaneously turning a blind eye to his
inclusion of a right they were not prepared to recognize.130 But the
history accompanying the passage of the Fourteenth Amendment
offers a second possibility: that those members of Congress rejecting
the notion that the Clause encompasses the right of suffrage were

125. 6 F. Cas. at 548.
126. Id. at 551–52. Corfield’s discussion of the privileges and immunities of the citizens of
the several states was in reference to the Privileges and Immunities Clause of Article IV of the
Constitution, as the Fourteenth Amendment had not been enacted at the time of the decision.
Corfield is relevant nevertheless, not merely because this Note is primarily concerned with the
privileges and immunities of state (and not national) citizenship, but because its text was
repeatedly invoked by the Framers of the Fourteenth Amendment when they drafted a Privileges
or Immunities Clause of their own.
127. Corfield further defines “fundamental” as having “at all times, been enjoyed by the
citizens of the several states which compose this Union, from the time of their becoming free,
independent, and sovereign.” Id. at 551.
128. Id. at 552.
129. “When Congress gathered to debate the Fourteenth Amendment, members frequently, if
not as a matter of course, appealed to Corfield, arguing that the Amendment was necessary to
guarantee the fundamental rights that Justice Washington identified in his opinion.” Saenz v.
Roe, 526 U.S. 489, 526 (1999) (Thomas, J., dissenting).
130. Claeys, supra note 97, at 800–01.

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making that argument in the context of race alone.131 They were, in
effect, arguing that the Fourteenth Amendment was not doing for
blacks what the Fifteenth Amendment would later do for them:
expressly preventing the states from denying or abridging the right of
its citizens to vote on the basis of color.
The ratification of the Fifteenth Amendment, however, is
evidence not that the Fourteenth Amendment should not—or could
not—preserve access to the ballot for state citizens, but that a
subsequent Amendment was required to make that guarantee explicit.
The Fifteenth Amendment, therefore, does as much to reinforce the
enfranchising elements of Section 1 of the Fourteenth Amendment as
it does to dismantle the disenfranchising elements of Section 2.132
D. Divining Meaning: The Understanding of the Ratifiers
The words of the members of the Thirty-Ninth Congress are
not the only source for understanding the content of “privileges or
immunities,” however. A second, and arguably more potent,133 means
for understanding the original significance of the phrase emerges from
an analysis of the debates of the state legislatures charged with
ratifying the Fourteenth Amendment. On that score, it is widely
apparent that whatever the members of the Thirty-Ninth Congress
believed, there was “broad belief” in the states that the Amendment
would extend the franchise to blacks. 134 In the Pennsylvania Senate,
George Landon announced that the Amendment would “guarantee to
all persons born on American soil . . . the immunities of impartial
suffrage before the law.”135 His colleague, W. A. Wallace, opposed the
Amendment because it would force the states to give up their right to
regulate suffrage.136 Likewise, in the Pennsylvania House of
Representatives, H.B. Rhoads complained that the “main idea” of the
Amendment was to “make a citizen of the Negro and give him the
right of suffrage.”137

131. See SNEED, supra note 41, at 371 (rejecting the notion that the Fourteenth Amendment
represented the willingness or desire of the states to enfranchise blacks).
132. See discussion supra Section II.C.2.
133. “[T]he intention of the ratifiers, not the Framers, is in principle decisive . . . .” Henry P.
Monaghan, Our Perfect Constitution, 56 N.Y.U. L. REV. 353, 375 n.130 (1981).
134. ANTIEAU, supra note 41, at 24. This belies the argument that the states were simply not
prepared to extend the franchise to blacks after the Civil War. See BOGEN, supra note 69, at 49.
135. PA. LEG. RECORD FOR 1867, app. at vi.
136. Id. at xiii.
137. ANTIEAU, supra note 41, at 24 (citing PA. LEG. RECORD, supra note 135, app. at liv).

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The belief that the Amendment’s “privileges or immunities”
language included the franchise extended beyond Pennsylvania.
Legislators in Arkansas,138 Florida,139 Indiana,140 New Hampshire,141
New Jersey,142 North Carolina,143 Ohio,144 and Tennessee145 believed
that the proposed Amendment would extend the franchise to blacks as
well. The governors of Indiana,146 Massachusetts,147 New
Hampshire,148 and South Carolina149 also adopted this interpretation.

138. “[Section 2 of the Amendment] is but an effort to force Negro suffrage upon the States,
and, further intended or not, it leaves the power to bring this about, whether the States consent
or not . . . .” ANTIEAU, supra note 41, at 29 (citing ARK. S.J. FOR 1866, at 259).
139. The Florida House Committee on Federal Relations reported that the proposed
Amendment gave blacks the privileges and immunities of citizenship, including the “elective
franchise.” ANTIEAU, supra note 41, at 29 (citing FLA. H.J. FOR 1866, at 76).
140. Indiana state representatives Honneus and Ross opposed ratification in the belief that
the Amendment would grant suffrage to blacks. ANTIEAU, supra note 41, at 25 (citing 1 IND. H.J.
FOR 1867, 101–05); 9 BREVIER LEGISLATIVE REPORTS 80 (Ariel & W.H. Drapier eds., 1867).
141. “[T]he only occasion and real design of the proposed amendment is to accomplish
indirectly what the general government has and should have no power to do directly, namely, to
interfere with the regulation of the electoral franchise of the States, and thereby force Negro
suffrage upon an unwilling people.” N.H. S.J. FOR 1866, 72.
142. In introducing a joint resolution to ratify the Amendment, Assemblyman Scovel
declared that “it is right that Congress should have the paramount power of regulating the
suffrage and representation of the States . . . if the Negro cannot vote, no one shall vote for him.”
ANTIEAU, supra note 41, at 28 (citing TRENTON DAILY TRUE AM., Sept. 12, 1866).
143. The Joint Select Committee on Federal Relations of the North Carolina Legislature
informed the whole Legislature that Congress would likely construe the Amendment to give it
power to regulate suffrage. ANTIEAU, supra note 41, at 29 (citing N.C. S.J., 1866, at 96).
144. Early in 1868, Ohioans attempted to rescind their ratification of the Amendment
because “one of the objects to be accomplished by said proposed amendment was to enforce negro
suffrage and negro political equality in the States.” Another Infamy Contemplated, CLEVELAND
PLAIN DEALER, Jan. 13, 1868.
145. Anticipating that the Amendment might extend the franchise to blacks, the Tennessee
Legislature attempted, unsuccessfully, to include a qualification that the Amendment “not be so
construed as to confer the right of suffrage upon a negro.” ANTIEAU, supra note 41, at 29 (citing
TENN. S.J., Extra Sess. 1866, at 23).
146. In his address to the Indiana Legislature on the proposed Amendment, Governor Oliver
P. Morton declared his belief that suffrage was a natural right and that the Amendment
protected its free exercise. ANTIEAU, supra note 41, at 25 (citing 1 IND. DOCUMENTARY J. FOR
1867, at 21).
147. Governor Alexander H. Bullock described the Amendment in his message to the
Legislature as “the opportunity of this generation . . . to vindicate American ideas by
enfranchising a race of men.” ANTIEAU, supra note 41, at 26 (citing LEGIS. DOCS. MASS. S. 1867,
NO. 1, at 67).
148. Governor Walter Harriman, in addressing the New Hampshire Legislature on the
proposed Amendment, told them, “Not for caste, or race, or color, can any man be debarred from
the ballot box . . . .” N.H. S. & H. REP. FOR 1867, app. at 609.
149. Governor James L. Orr informed the South Carolina Legislature that the Amendment
“confer[red] upon Congress the absolute right of determining who shall . . . exercise the elective
franchise.” S.C. H.J., Nov. 27, 1866, at 34.

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And newspapers in Pennsylvania150 and Ohio151 reported that
enactment of the Amendment would enfranchise blacks. While it is
true that not everyone in the states believed that the proposed
Amendment would extend suffrage to blacks,152 the great weight of
evidence at the state level suggests that those ratifying the
Amendment understood that they were enfranchising black
Americans. After Reconstruction, in other words, the privilege of
citizenship would include the right to vote.
E. Slaughtering Slaughter-House
Both the text and the meaning underlying the text of the
Privileges or Immunities Clause cast the Clause as a powerful
constitutional source of individual rights, including the right to vote.
But the extraordinary potential of the Clause was extinguished only
five years after its enactment by the Slaughter-House Cases.153 The
Slaughter-House Court considered the constitutionality of a Louisiana
statute forbidding the slaughter of cattle, pigs, and chickens within
certain state jurisdictions, except as carried out by a state-chartered
slaughterhouse company.154 Notably, the Court did not reject
Corfield’s characterization of the underlying meaning of “privileges or
immunities” in the constitutional context; to the contrary, the Court
turned to that opinion as the “first and leading case on the subject.”155

150. The Philadelphia Daily News informed its readers that the proposed Amendment would
enfranchise negroes. ANTIEAU, supra note 41, at 24–25 (citing PHILA. DAILY NEWS, Oct. 3, 1866,
at 2; PHILA. DAILY NEWS, Oct. 9, 1866, at 2).
151. The Cleveland Plain Dealer reported on a provision in an Ohio bill to rescind the
legislature’s 1867 joint resolution ratifying the Fourteenth Amendment, which read in part that
the joint resolution “was a misrepresentation of the public sentiment of the people of Ohio, and
contrary to the best interests of the white race, endangering the perpetuity of our free
institutions.” Another Infamy Contemplated, supra note 144.
152. See, for example, Pennsylvania State Rep. Harrison Allen’s statement that he did not
understand the proposed Amendment to confer upon the “Negro” the right to suffrage, ANTIEAU,
supra note 41, at 25 (citing PA. LEGIS. REC. FOR 1867, app. at xvi), West Virginia Governor
Arthur Boreman’s message to the State Legislature that the proposed Amendment “leaves this
question of suffrage as at present, to the States,” ANTIEAU, supra note 41, at 30 (citing J. H.R.
W.V., 1867, at 18–21), and the Providence Evening Press’s explanation to its readers that
“[w]hatever may be the abstract right or wrong of the question of lifting the late slave and
present freedman into an equal voting citizen with his white neighbor, that question is not raised
in the proposed constitutional amendment,” ANTIEAU, supra note 41, at 27 (citing PROVIDENCE
EVENING PRESS, Oct. 3, 1866, at 2).
153. 83 U.S. (16 Wall.) 36 (1873).
154. Id. at 59–60. The Court framed the issue broadly as whether “any exclusive privileges
[could] be granted to any of its citizens, or to a corporation, by the legislature of a State[.]” Id. at
65.
155. Id. at 75.

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A bare 5-4 majority nevertheless reasoned that the Amendment’s
explicit reference to the “privileges or immunities of citizens of the
United States”156 offered no more protection to state citizens against
acts of their own legislature than did the “privileges and immunities”
language in Article IV, Section 1.157 In one stroke, the Court thus
succeeded in depriving the Clause of all significance.158
Scholars have offered two potent objections to this
understanding of the Clause. The first common objection is that by
“interpreting” the Clause in this way, the Court ignored a basic
presumption of constitutional construction: that when Congress drafts
a constitutional amendment, it does not include superfluous
language.159 Nor is it reasonable to assume that Congress will include
language in a proposed amendment whose meaning is already
reflected elsewhere in the text of the document. By reading the
Privileges or Immunities Clause of the Fourteenth Amendment as
mere redundancy,160 however, the Court managed to read out of the
Constitution not only the Clause itself but also the legislative intent
ostensibly supporting it.
Addressing this point in his Slaughter-House dissent, Justice
Stephen Johnson Field noted the absurdity of a construction that
would deprive the Clause of all meaning, famously opining that the
majority’s reading rendered the Clause “a vain and idle enactment,
which accomplished nothing, and most unnecessarily excited Congress
and the people on its passage.”161 In his view, the Clause simply
assumed that all citizens, of right, possessed certain privileges and
immunities, and instructed that states not abridge them by legislative
enactment.162 The advantage of this reading over that of the majority
is twofold: first, it pays appropriate respect to the intense and
prolonged efforts of the drafters of the Fourteenth Amendment; and

156. Id. at 74 (emphasis added).
157. Id.
158. Justice Thomas noted ruefully in Saenz that this reading “sapped the Clause of any
meaning.” Saenz v. Roe, 526 U.S. 489, 527 (1999) (Thomas, J., dissenting).
159. “[T]here is not a bit of legislative history that supports the view that the Privileges or
Immunities Clause was intended to be meaningless.” JOHN HART ELY, DEMOCRACY AND
DISTRUST: A THEORY OF JUDICIAL REVIEW 22 (1980).
160. Slaughter-House Cases, 83 U.S. at 74.
161. Id. at 96 (Field, J., dissenting.).
162. Id. Professor Ely restates Justice Field’s claim by proposing that the Clause “define[s]
the class of rights rather than limit[s] the class of beneficiaries.” ELY, supra note 159, at 25. He
continues, “Since everyone seems to agree that such a construction would better reflect what we
know of the purpose, and since it is one the language will bear comfortably, it is hard to imagine
why it shouldn’t be followed.” Id.

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second, it offers a more faithful adherence to the historical
underpinnings of the Clause itself than that offered by the majority.163
The second common objection to the Slaughter-House opinion is
that the Court has not, over time, bound itself to that opinion’s
similarly narrow reading of the Equal Protection Clause of the
Fourteenth Amendment.164 The Slaughter-House majority assumed
that the Amendment’s reference to equal protection was applicable
solely in the context of racial discrimination.165 This assumption has
since been soundly undermined by the Court’s subsequent
invalidation of state laws classifying individuals on the basis of, for
example, sex,166 sexual orientation,167 and mental retardation.168 The
Slaughter-House Court’s failed prognostication on the scope of the
Equal Protection Clause must place in serious jeopardy its proffered
understanding of the Privileges or Immunities Clause. History
counsels that the Court abandon blind adherence to such a
nearsighted oracle.169
IV. RECONCILIATION
The Supreme Court’s decision in Saenz v. Roe provides an
opportunity for courts, scholars, and litigators to reexamine the
historical understanding and application of the Privileges or
Immunities Clause of the Fourteenth Amendment. Justice Thomas, as
noted supra Part I, indicated his openness to reevaluating the
meaning of the Clause in an “appropriate case” concerning a
“fundamental right.”170 The preceding analysis relies upon the
163. See discussion supra Sections III.B–D.
164. “Later Courts, correctly diagnosing a case of overreaction, have backed away, with a
vengeance, from Slaughter-House’s comparably narrow interpretation of the Equal Protection
Clause. Yet the Court hasn’t moved an inch on Privileges or Immunities.” ELY, supra note 159, at
23.
165. “We doubt very much whether any action of a State not directed by way of
discrimination against the negroes as a class, or on account of their race, will ever be held to
come within the purview of this provision.” Slaughter-House Cases, 83 U.S. at 81.
166. United States v. Virginia, 518 U.S. 515, 555–56 (1996).
167. Romer v. Evans, 517 U.S. 620, 635–36 (1996).
168. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446–47, 450 (1985).
169. “Everyone agrees” that the Slaughter-House Cases were wrongly decided. Richard L.
Aynes, Constricting the Law of Freedom: Justice Miller, the Fourteenth Amendment, and the
Slaughter-House Cases, 70 CHI.-KENT L. REV. 627, 627 n.4 (1994). “Indeed, the majority’s
mistake was so egregious as to make one wonder whether it was willful.” PERRY, supra note 70,
at 58; see also Gans, supra note 86, at 927 (arguing that adopting a “unitary” reading of Section 1
of the Fourteenth Amendment would lead the Court to overrule the Slaughter-House Cases and
“reinvigorate the Privileges or Immunities Clause, making it the basis for protecting
fundamental human liberties”).
170. Saenz v. Roe, 526 U.S. 489, 527–28 (1999) (Thomas, J., dissenting).

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historical,171 structural,172 and jurisprudential173 inadequacies and
inaccuracies of the Richardson decision—as well as originalist
arguments that the Clause was intended to protect the right to
vote174—to demonstrate why a challenge to felon disenfranchisement
laws would constitute an “appropriate case” as understood by Justice
Thomas.175 It proposes felon disenfranchisement laws, in particular,
because of their effect on what the Court has described as the most
fundamental of fundamental rights: the right to vote.176
Invalidating felon disenfranchisement laws by this method,
moreover, offers an additional advantage: minimizing the stare decisis
problem that a reassessment of Richardson would raise. The Court is
understandably sensitive to the prospect of overturning its own
precedent.177 The argument advanced by this Note, however, would
require not that the Court completely overturn Richardson and
confront the equal protection question initially raised in the case,178
but instead that it simply identify the Privileges or Immunities Clause
as an alternative constitutional source for the right to vote.
Applying the Clause in this way, in addition, need not
disembowel prior Court opinions preserving fundamental rights under
other provisions of the Fourteenth Amendment. While transposing
equal protection or substantive due process analysis to the privileges
or immunities context is an option the Court might explore further,179
it is by no means the required course under this Note’s analysis. Such
171. See discussion supra Section II.C.1.
172. See discussion supra Section II.C.2.
173. See discussion supra Section II.C.3.
174. See discussion supra Part III.
175. There is some evidence that Justice Thomas himself is already predisposed to believe
that the Fourteenth Amendment implicates the franchise, in that it was intended in part to
secure blacks the right to vote. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1,
127 S. Ct. 2738, 2783 n.19 (2007) (Thomas, J., concurring) (“I have no quarrel with the
proposition that the Fourteenth Amendment sought to bring former slaves into American society
as full members.”).
176. Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (holding the franchise to be “preservative
of all rights”).
177. A Court that constantly repudiates its past decisions necessarily calls into question the
validity of its future decisions. As Justice O’Connor asserted, “Liberty finds no refuge in a
jurisprudence of doubt.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844 (1992)
(rejecting opportunity to overrule Roe v. Wade, 410 U.S. 113 (1973)). But see Lawrence v. Texas,
539 U.S. 558, 587 (2003) (Scalia, J., dissenting) (“I do not myself believe in rigid adherence to
stare decisis in constitutional cases; but I do believe we should be consistent rather than
manipulative when invoking . . . doctrine.”).
178. See discussion supra Section II.B.
179. “We should . . . consider whether the Clause should displace, rather than augment,
portions of our equal protection and substantive due process jurisprudence.” Saenz v. Roe, 526
U.S. 489, 528 (1999) (Thomas, J., dissenting).

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an application would signal, however, the beginning of an honest
appraisal of the ever-broadening application of the Equal Protection
and Due Process Clauses of the Fourteenth Amendment, as compared
with the virtual non-application of the first Clause in the series: that
protecting privileges and immunities.
Rooting access to the franchise in the Privileges or Immunities
Clause would, of course, subject felon disenfranchisement laws to
strict scrutiny analysis as abridgements of a fundamental right. This
Note does not address the question of whether felon
disenfranchisement laws would satisfy strict scrutiny except to say
that proponents of these laws have advanced several arguments to
justify them, while their opponents have advanced persuasive
arguments in response.180 Suffice it to say that, as noted supra Section
II.A, felon disenfranchisement is the only means other than age or
mental infirmity by which states continue to disenfranchise their
citizens,181 and this mechanism only remains in place today because of
the Richardson decision. It seems highly unlikely that the Court
would exhume the Privileges or Immunities Clause to preserve the
franchise, only to find that felon disenfranchisement laws

180. One justification relies upon social contract theory, positing that, by engaging in
criminal activity, the criminal forfeits his right to participate in the political process. See Green
v. Bd. of Elections of the City of New York, 380 F.2d 445, 451 (2d Cir. 1967) (Friendly, J.) (“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.”). Denying felons the full rights of citizenship, however, makes it that much more
difficult for them to perform the duties of citizenship and thus to uphold the social contract.
Christopher Uggen et al., Citizenship, Democracy, and the Civic Reintegration of Criminal
Offenders, 605 ANNALS 281, 283 (2006); see also Adam Winkler, Note, Expressive Voting, 68
N.Y.U. L. REV. 330, 331 (1993):
[T]he vote should be protected not simply because it enables individuals to pursue
political ends, but also because voting is a meaningful participatory act through which
individuals create and affirm their membership in the community and thereby
transform their identities both as individuals and as part of a greater collectivity.
A second justification characterizes felons as a threat to the “purity of the ballot box,” in that
they may undermine the voting process, see Fletcher, supra note 63, at 1899, may vote
irresponsibly, see Bennett, supra note 82, at 4, or may effect harmful changes in the law, see id.
at 5. Even if felons, as a voting bloc, were to attempt to effect such change, the likelihood of an
extremely soft-on-crime politician getting elected and persuading other legislators to adopt his
positions is slim. Behrens, supra note 46, at 263.
A final justification relies on traditional criminal law notions of deterrence and retribution.
See id. (identifying “stigma” and “warning” purposes of felon disenfranchisement). These laws
appear to have no meaningful deterrent effect, however, see Nora V. Demleitner, Preventing
Internal Exile: The Need for Restrictions on Collateral Sentencing Consequences, 11 STAN. L. &
POL’Y REV. 153, 161 (1999), even when criminals are aware of them, see Note, The
Disenfranchisement of Ex-Felons: Citizenship, Criminality, and “The Purity of the Ballot Box,”
102 HARV. L. REV. 1300, 1307 (1989) (describing the “extremely low visibility” of these laws).
181. Belluck, supra note 34.

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nevertheless satisfied the strict scrutiny standard accompanying such
exhumation.
The short of it is this: the Court found itself a shovel in Saenz
v. Roe. The time has finally come to begin the dig.
John Benjamin Schrader∗

∗
Thanks to the many members of the VANDERBILT LAW REVIEW whose thoughtful and
thorough edits dramatically improved the quality of this Note. Special thanks to Erin Carter and
Georgia Sims, whose substantive comments challenged me to rethink, refine, and rewrite nearly
every sentence in it. And a final thanks to Paul Davis, the first and best of those who taught me
how to write.