The federal courts are rendering the outcome of elections moot. They are deciding every political, social, and philosophical public policy dispute in a way that violates history, tradition, precedent, and natural law. Worse yet, they are also making it impossible for non-Democrats to win elections in the first place by commandeering the states and forcing them to have unlimited early voting, novel registration processes, third-party ballot harvesting, no voter ID or proof of citizenship to register, and are controlling the way all districts are drawn. The next frontier? Mandating that felons be allowed to vote.
The reason there is a clamor for jailbreak legislation, aka “criminal justice reform,” is the same reason there is an obsession over open borders and amnesty. It’s all about increasing the voter pool. Have you ever noticed that there is no movement to restore gun rights to convicted felons even as one state after another loosens restrictions on felons voting? This is not about an agenda of compassion and mainstreaming those who served their time. Just as with the amnesty agenda, this is about a Democrat voter registration drive.
Throughout the past few decades, a number of states have loosened their restrictions on felons voting, and some have abolished them altogether once the sentences have been completed. Many of them have done so through the legitimate political process with proper input from the voters and state legislatures. Others, such as former Virginia Governor Terry McAuliffe, made an end-run around the legislature. Now we have unelected federal courts parachuting in and forcing both governors and legislatures to restore felon voting rights.
Florida has had some of the strictest rules against felons voting for over a century. The process is spelled out clearly by statute, and the statutory authority is vested in the legislature by the Florida Constitution. Nonetheless, the legislature agreed to hold a ballot initiative in November to allow the people to decide whether they should restore the voting rights of most convicted felons after they completed their sentences.
But that is not enough for the courts. Like everything else, they must make it a federal constitutional right, even when it violates the plain language of the Constitution. In February, Judge Mark Walker, a radical federal district judge appointed by Obama, suddenly decided that Florida’s process was unconstitutional. Much as marriage laws became unconstitutional hundreds of years after the fact, with the flick of the pen, a district judge has taken power to overturn all precedent concerning felons voting. Earlier this week, Judge Walker went a step further and ordered the state government to create a system with “specific and neutral criteria to direct vote-restoration decisions” and “meaningful, specific and expeditious time constraints” on restoring voting rights for the estimated 1.5 million convicted felons in the Sunshine State. He set a one-month deadline on compliance.
States can unquestionably deny felons the right to vote
Let’s put aside the fact that a court is not a legislature and lacks the power to mandate actions with very specific details on broad public policy issues. One can debate the political parameters of how and when to restore a felon’s voting rights, but one cannot dispute the fact that this is a political question given over to the states. There is no Fourteenth Amendment right, as Walker has asserted, to a specific process for restoring voting rights, because states can indefinitely deny felons the right to vote if they so choose and have done so since the founding of the republic.
It’s funny how everything is retroactively stuffed into the Fourteenth Amendment except for what it actually states in plain language. The Fourteenth Amendment recognizes the power of a state to deny the franchise (which is why the Fifteenth Amendment was needed to mandate voting rights for freed slaves and the Nineteenth Amendment was needed for women’s suffrage); however, it created a rule to punish any state that denied the franchise to blacks by cutting off some of its representation in Congress. It specifically allows states, though, to deny the franchise and be spared from the loss of representation if they deny voting rights “for participation in rebellion, or other crime.”
The Supreme Court has long ruled that this language allows states to deny felons voting rights, and for good reason. Senator Jacob Howard, one of the prime drafters of the Fourteenth Amendment, made it clear during the floor debate in 1866: “The second section leaves the right to regulate the elective franchise still with the States, and does not meddle with that right.”
This is where liberals fail to understand the definition of a fundamental right. A fundamental right is a negative state of being – it’s the right of an individual to be left alone and not have his body or property harmed without due process. These are the rights of life, liberty, property, and yes, the right to self-defense.
The right to vote, although it is among the most foundational privileges, is still not among the fundamental rights enshrined in the Constitution and enforced against the states in the Fourteenth Amendment. Congressman John Bingham, one of the civil rights champions who drafted section 2 of the Fourteenth Amendment, declared that “we all agree, and the great body of the people of this country agree, and the committee thus far in reporting measures of reconstruction agree, that the exercise of the elective franchise, though it be one of the privileges of a citizen of the Republic, is exclusively under the control of the States.” Jacob Howard punctuated this point by observing that “the right of suffrage is not, in law, one of the privileges or immunities thus secured by the Constitution. It is merely the creature of law. It has always been regarded in this country as the result of positive local law, not regarded as one of those fundamental rights lying at the basis of all society and without which a people cannot exist except as slaves, subject to a despotism.”
The “champions” of “fundamental” rights forget about the right to self-defense
Guess what is a fundamental right and is indeed included in the privileges and immunities secured even against state laws in the Fourteenth Amendment? The right to self-defense.
As Sam Adams, the founding father of the American Revolution, said, “[A]mong the natural rights of the colonists are these: First a right to life, secondly to liberty, and thirdly to property; together with the right to defend them in the best manner they can.” Article I of the Massachusetts Declaration of Rights, by which the Declaration of Independence was inspired, lists the rights to “defending their lives and liberties” and “obtaining their safety” as one of the fundamental rights.
No, this does not mean we have a right to government funding for firearms, as liberals always claim is mandated for “rights” like abortions and contraception, but it means we are to be left alone to defend our bodies and property without fear of government action.
Even Justice Clarence Thomas, who states that the Fourteenth Amendment did not incorporate the entire Bill of Rights against the states, particularly through the due process clause (known as “the incorporation doctrine”), agrees that the Second Amendment was indeed incorporated by the privileges and immunities clause of the Fourteenth Amendment (McDonald v. Chicago, Thomas, J., concurring). Even a state government cannot harm the God-given right to defend one’s state of being.
Judge Timothy Farrar, a law partner of the great Daniel Webster, who wrote the first and most respected post-Fourteenth Amendment constitutional treatise, seems to agree with Thomas. He listed the right to bear arms among the unalienable rights that states cannot violate. “The States are recognized as governments, and, when their own constitutions permit, may do as they please; provided they do not interfere with the Constitution and laws of the United States, or with the civil or natural rights of the people recognized thereby, and held in conformity to them. The right of every person to ‘life, liberty, and property,’ to ‘keep and bear arms’ … cannot be infringed by individuals or even by the government itself.”
Now, obviously, just like the other fundamental rights, a state government can infringe upon it when there is a vital and substantial interest. But isn’t it interesting how there is no movement to loosen gun restrictions on felons, when the right to keep arms is a fundamental right included in the Constitution, while there is a movement to restore voting rights when the Fourteenth Amendment explicitly allows states to regulate them? Then again, they want to take away gun rights for non-felons too.
Isn’t it also interesting that the same people who are concerned about felons voting wish to include illegal aliens in the Census and disenfranchise all American voters, while having the audacity to say the Fourteenth Amendment requires it?
Why is it that what is legitimately a state power, the courts give to the feds, and what is legitimately a federal power, they give to the states? Why is it that they read fundamental rights out of the Constitution and non-fundamental rights into the Constitution, with more protection than foundational rights?
Amid the grotesque debasement of the Constitution, the only thing that has remained clear and consistent in our politics and jurisprudence is that anything bound to create votes for left-wing politicians is a fundamental right.
Author: Daniel Horowitz
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.