States of Servitude: Resurrecting the Forgotten Promise of the Fifteenth Amendment

I. INTRODUCTION

There are few things in American popular culture that fit the description of “as American as apple pie.” Felony disenfranchisement is not one of them. A common misconception in legal literature and jurisprudence is that felony disenfranchisement is deeply rooted in American history.^[1] However, the practice of disenfranchising citizens because of criminal convictions was one widely rejected by the thirteen original states at the start of the Republic.^[2] In fact, the history surveyed herein reveals an ugly truth—one known to the drafters of the Fifteenth Amendment and one that likely shaped how they framed the law.^[3] The history illustrates that there is a direct correlation between the expansion of the voting class and the stringency of criminal disenfranchisement laws in this country. What this reveals is that criminal disenfranchisement laws have been used as a tool to limit the full voting power of “undesirable” groups such as those of lower income statuses and minorities. Indeed, if these laws were meant to limit the voting power of “undesirable” groups, it makes sense why criminal disenfranchisement was rejected by the early states. They had no reason to adopt such a practice because from the beginning, only a narrow class of people were granted suffrage: property-holding white males.^[4] Where the laws already limited the right of suffrage to members of the highest echelons of American society, there was no need for an additional mechanism to limit who could participate. Only as the right of suffrage expanded to additional groups did states have a desire to impose further legal mechanisms to limit their voting power.

As a quick aside, it is important to note that this Article varies between the phrases “criminal disenfranchisement” and “felony disenfranchisement.” It uses “criminal disenfranchisement” to refer to laws that historically denied citizens the right to vote because of their convictions of specific crimes—a subset of relatively severe crimes such as bribery or embezzlement. It uses “felony disenfranchisement” to refer to laws that have historically denied citizens the right to vote because of their being convicted of any crime that constituted a felony. This distinction is particularly important in framing the history that guides the analysis. If the two terms are conflated, as they have been in prior analyses, it opens the door to the argument that modern disenfranchisement has a deep history in the United States.^[5] In context, however, the practice of disenfranchising voters for their being convicted of any felony does not have a long history in the United States. In fact, it was not until 1818 that Connecticut became the first state in the Union to adopt a narrow form of criminal disenfranchisement penalizing those convicted of “bribery, forgery, perjury, duelling, fraudulent bankruptcy, theft, or other offense for which an infamous punishment is inflicted.”^[6] For purposes of constitutional analysis, the distinction between these terms and the history associated with them carries much weight when determining the motivating concerns of those who framed the Fifteenth Amendment in Congress.

Nonetheless, in the 205 years to pass since then, modern felony disenfranchisement has stripped the right to vote from the hands of millions of Americans.^[7] Today, it is estimated that some four million Americans have been denied the right to vote because of these laws.^[8] Additionally, one in twenty-two Black Americans are reportedly disenfranchised—a rate three times higher than members of other races.^[9] While this Article does not venture into trends of mass incarceration that have fueled the vast disenfranchisement of Americans, it does discuss the comprehensive history of felony disenfranchisement. It will ultimately conclude that the practice stands repugnant to the Fifteenth Amendment of the United States Constitution. To be clear, this Article does not focus on the disenfranchisement of people currently serving sentences for felony convictions. It instead focuses on those laws that permit the permanent disenfranchisement of people who were previously convicted of felony offenses but have now “paid their debt” to society.^[10]

Currently, ten states have laws allowing for the permanent disenfranchisement of people convicted of certain classes of felonies.^[11] Even though disenfranchised people in each of these states have completed their sentences, they are barred from voting solely because they were at one time convicted of a felony. This penalty is tied only to the fact that a defendant has been convicted of a felony and usually does not depend on their sentence. For example, in August 1990, Robert John Schetzell was convicted of bigamy in a Florida state court.^[12] At that time in the state of Florida—and presently—bigamy was a third-degree felony punishable of up to five years in prison.^[13] Nevertheless, the Circuit Judge in Schetzell’s case sentenced him to six months of house arrest and four and a half years of probation.^[14] While Schetzell was never incarcerated, under Florida law, he became disenfranchised because of his felony conviction.^[15] The State of New York provides an exception to this general practice.^[16] There, a person convicted of a felony loses their right to vote only while they are incarcerated for the commission of the felony.^[17]

This article’s central thesis is that laws permitting the permanent disenfranchisement of Americans solely because of their past felony convictions violate the Fifteenth Amendment of the United States Constitution, which prohibits the United States or any state from denying a citizen the right to vote based on, inter alia, a “previous condition of servitude.”^[18] Permanent felony disenfranchisement violates this clause, because judicial interpretations, legislative history, and the framers’ purpose in drafting the clause support that it prohibits denying voting rights based solely on a person’s prior status of restricted liberty. This Article also argues that felony convictions inherently place criminal defendants in a subservient status because of the penalties associated with sentencing. Thus, if a law disenfranchises a person beyond the end of their criminal sentence—the moment marking the end of their conviction—it only does so because of that person’s previous status as a convicted felon.^[19]

To expound upon this point, the remainder of this Article proceeds from the perspective of a shadow justice on the United States Supreme Court, dissenting from a denial of certiorari in a hypothetical case presenting the question of whether the Fifteenth Amendment proscribes a state’s felony disenfranchisement laws.^[20]

Part II provides additional context by introducing a hypothetical petition for certiorari. Part III provides a comprehensive history of felony disenfranchisement in the United States by surveying state constitutions and analyzing how those documents illuminate state sentiments towards the practice. It also exposes a trend of states employing tougher disenfranchisement provisions as the right to vote expanded to various groups. It concludes by highlighting a rich moment of legislative debate that informs how members of the Reconstruction Congress debated the merits of felony disenfranchisement and its harm to Black Americans. As a whole, this history will provide insight into what the framers of the Fifteenth Amendment understood about criminal disenfranchisement at the time of its enactment. Part IV engages with jurisprudence and pieces of legal literature that have offered their own interpretations of the Fifteenth Amendment’s Previous Condition of Servitude Clause. Part V employs some traditional tools of constitutional analysis to offer a new interpretation of the “Previous Condition of Servitude” Clause. It reviews definitions from dictionaries compiled shortly after the Fifteenth Amendment’s ratification as well as modern dictionaries to determine the original and modern public understandings of the clause’s language. It also references Justice Stephen Johnson Field’s dissent in The Slaughterhouse Cases and analyzes his judicial interpretation of what constituted a “condition of servitude” only three years after the clause’s ratification. It then journeys back to the chambers of the United States Senate in 1869 to discover the motivations behind the Fifteenth Amendment and to offer key points from the debates surrounding its enactment. Part V concludes by proposing a new, unified rule of interpretation of the clause which is then applied to resolve the ultimate question: whether permanent felony disenfranchisement laws violate the Fifteenth Amendment of the United States Constitution.

II. PETITION FOR CERTIORARI

The question presented in the petition for writ of certiorari is one of first impression for our Court. Petitioner is among a class of people referred to as “Returning Citizens.” Over the years, our society has adopted colloquial terms such as “ex-cons” and “former offenders” to describe people who were at one point convicted of a felony, incarcerated in many cases, and ultimately freed of their legal bonds upon completing a sentence. Today, in recognition of society’s goal of welcoming those persons back into our communities, I refer to them by the increasingly used term, “Returning Citizens.” Petitioner is one of millions of Returning Citizens who have found themselves disenfranchised because of prior felony convictions. With a story common to many would-be voters across the nation, Petitioner was convicted of a felony over thirty years ago. Although she completed her sentence nearly two decades ago, she is presently denied the right to vote in consequence of her past conviction. Today, she challenges her state’s felony disenfranchisement law under the novel argument that any prohibition on her right to vote beyond the moment she completed her sentence would be based solely on her prior conviction and would amount to denying her the right to vote based on a “previous condition of servitude.” This, of course, requires us to answer two questions: what is a “previous condition of servitude” within the meaning of the Fifteenth Amendment of the United States Constitution? And do felony convictions fall within that meaning?

Petitioner argues that the reason for granting certiorari is a simple one; it presents a significant issue of federal law. I agree.^[21] Indeed, in the American criminal legal system, a defendant charged with a felony loses important freedoms the moment a court makes an official finding of guilt. Most Americans are familiar with the common visual of a criminal defendant being taken into the state’s custody immediately after they have been found guilty. This detention may happen before a court has even imposed a sentence for the crime.^[22] And when the time for sentencing a defendant comes, the law provides for a variety of restrictive sanctions that courts may impose.^[23] The American Bar Association’s Criminal Justice Standards on Sentencing provide a comprehensive summary of the types of sanctions imposed by courts across the country.^[24] These include: compliance programs that require control or supervision of defendants within their communities; economic sanctions which may include fines and mandatory community service; acknowledgment sanctions which may require public communications about a defendant’s crime; intermittent confinement at a local facility or a defendant’s home; and total confinement in a federal or state prison.^[25] Petitioner contends that these types of sentences place individuals with felony convictions within a subservient status in society amounting to a “condition of servitude” under the Fifteenth Amendment. She further argues that the imposition of these sentences is inseparable from, and intertwined with, a person’s conviction. In other words, a person’s conviction ends when their sentence is complete. Accordingly, under Petitioner’s view, once her sentence was completed, the State was no longer permitted to deny her right to vote because at that point, the State’s denial was based entirely on her past conviction. Thus, if the definition of “previous condition of servitude” does encompass past convictions, then the State’s disenfranchisement law would be unconstitutional under the Fifteenth Amendment.

The State argues that this issue has been resolved by our decision in Richardson v. Ramirez in which we held that the Fourteenth Amendment of the United States Constitution was not violated by California’s practice of felony disenfranchisement.^[26] Specifically, we held that Section Two of the Amendment directly authorized such practices. In dictum, then Justice Rehnquist, writing for the Majority, opined that this Court’s precedents have “strongly suggested . . . that exclusion of convicted felons from the franchise violates no constitutional provision.”^[27] Accordingly, the State, arguing against granting the petition, says that the constitutionality of felony disenfranchisement is a settled matter of law. In denying the petition, my colleagues in the Majority agree.

Because I believe the Fifteenth Amendment compels a contrary answer, I would grant the petition for a writ of certiorari and respectfully dissent from the Court’s majority. While I believe Richardson was wrongly decided, a proper analysis of the Fifteenth Amendment provides an independent basis as to why permanent felony disenfranchisement is unconstitutional, notwithstanding the Court’s decision in Richardson. I fully explain my reasoning below.

In so doing, I begin with a focus on the seventy-two years of history, ranging from the earliest days of the Republic to the start of the Civil War. I do so because when expounding upon the history of criminal disenfranchisement known to the Framers of the Fourteenth and Fifteenth Amendments, it is helpful to analyze the practices of the States of the Union at a time in which they were unencumbered by sentiments developed in the seven years immediately following the Civil War. Doing so allows for a clear-eyed analysis of whether some states chose to amend their criminal disenfranchisement laws considering the then-increasing likelihood of the right of suffrage for Black American men.

III. BACKGROUND AND FOUNDATION

A. THE FOUNDING GENERATION

It may come as a surprise to many that nearly none of the first thirteen states had laws within their state constitutions authorizing the practice of any form of criminal disenfranchisement at the time of the Federal Constitution’s ratification in 1788. In fact, the vast majority of the states only required that a qualified elector be (1) a male, (2) twenty-one years of age, (3) a property owner, and (4) an inhabitant of the district in which they would be voting.^[28] State constitutions varied between their use of the words “freeman” or “white male”, suggesting that free Black men had suffrage rights in those states that adopted race-neutral qualifications. Even so, it is likely that the property holding requirements in most states served to effectively disenfranchise some Black freemen. Perhaps the New York State Constitution, adopted in 1777, can arguably be said to have authorized some form of criminal disenfranchisement.^[29] It read, “no member of th[e] State shall be disfranchised, or deprived of any the rights or privileges secured to the subjects of th[e] State by this constitution, unless by the law of the land, or the judgment of his peers.”^[30] However, this short provision offered no guidance as to the type of crime a person would have to commit for their right to vote to be deprived. The limited language in this singular state constitution can hardly be suggested then to provide support for the idea that modern felony disenfranchisement has a deep history in the United States.

Nevertheless, for the sake of engaging with a thorough historical foundation, let us consider the possibility that early state constitutions did not mention any forms of disenfranchisement because such policies were practiced so extensively during the colonial period that states saw no need to enshrine the practice in their constitutions. We can deem this the “what is understood need not be explained” possibility. Such a possibility would not be entirely unfathomable considering criminal disenfranchisement had a place in the English Common Law that was adopted during the American colonial period.^[31] The fact that American chattel slavery existed in this way for the first half of the nation’s history lends further credence to this possibility. ^[32]

While the possibility of an enduring unspoken history of criminal disenfranchisement in the early days of the nation seems plausible, it is significantly undermined by the following considerations.

First, certain state constitutions, like that of New Jersey, made it explicitly clear that the English Common Law was still applicable in the jurisdiction except those parts that were, “repugnant to the rights and privileges contained in th[e] Charter.”^[33] Considering the voter qualifications enshrined in New Jersey’s 1776 charter accounted only for habitation, age, income, and property ownership, it is evident that any criminal disenfranchisement authorized by the English Common Law would be rendered as “repugnant” under the newly formed document.^[34] While other states were not as explicit in their rejection of certain English Common Law practices, the principle of lex posterior derogat priori,^[35] teaches us that their adoption of state constitutions including specific voter qualifications and excluding any mention of criminal disenfranchisement likely accomplished the same objective.

Second, the state constitutions of Massachusetts and Maryland adopted provisions that expressly disqualified men from holding public office upon being convicted for bribery in the process of obtaining their elections.^[36] Such provisions, in addition to the loose-fitted general disenfranchisement provision in the New York State Constitution, provide evidence that the States of the founding generation were very intentional about their voter qualifications and how those with criminal convictions could engage with their established polities. The rejection of this practice at the onset of American constitutional history cannot be ignored, particularly given that the States did so following over a millennia of criminal disenfranchisement practices beginning in antiquity in Ancient Greece and Rome, stretching across the Renaissance period in Europe, and culminating in the English Common Law prior to the American Revolution.^[37] Given the stringent voting qualifications already imposed by the newly minted state constitutions, it is likely that the framers of these documents envisioned no need to adopt criminal disenfranchisement provisions.

B. THE ANTEBELLUM GENERATION

1. ANTEBELLUM DISENFRANCHISMENT PROVISIONS

The Antebellum Period is generally regarded as the period of time preceding the American Civil War, which began in 1861.^[38] While there is no wide consensus among scholars as to when this period began, for the purpose of this dissent, the Antebellum Period will be broadly considered as the seventy years immediately following 1789, the year the United States Constitution came into effect.^[39] During that period of time, twenty-one states joined the Union, beginning with Vermont in 1791 and concluding with Kansas in 1861.

The State of Vermont joined the Union on March 4, 1791. Being perhaps the most progressive state at the time of it joining the Union, the Constitution of the State of Vermont boldly proclaimed that:

Every man of the full age of twenty one years, having resided in this State for the space of one whole year next before the election of Representatives, and is of a quiet and peaceable behaviour, and will take the [] oath or affirmation, shall be entitled to all the privileges of a freeman of this State.^[40]

The oath clarified that the right of suffrage was included within the “privileges of a freeman.”^[41] The State’s constitution continued in a nearby section to enumerate what seemed to be the only crime that would result in temporary disenfranchisement. Namely that, “any elector who shall receive any gift or reward for his vote, in meat, drink, monies, or otherwise, shall forfeit his right to elect at that time, and suffer such penalty as the law shall direct.”^[42] In doing so, Vermont arguably became the first state to implicitly enumerate bribery as a crime that would result in a person’s disenfranchisement. To be sure, bribery was a felony at common law; however, the framers of the Vermont Constitution seemingly made a conscious choice not to extend elector disqualifications to all felonies or infamous crimes, only to bribery.^[43]

If we fast forward a short twenty-eight years to 1819, when the State of Alabama joined the Union, we see a broader but still conservative use of criminal disenfranchisement as a tool. Article Six, Section 5 of Alabama’s 1819 Constitution granted the state legislature the authority to make laws, “to exclude from office, from suffrage, and from serving as Jurors, those who shall hereafter be convicted of bribery, perjury, forgery, or other high crimes or misdemeanors.”^[44] Alabama, perhaps more clearly than Vermont, delineated other felonies at common law that would disqualify electors, and included a term of art most famously known for its place in the Impeachment Clause in Article II of the United States Constitution.^[45] Alabama’s use of “other high crimes or misdemeanors” along with the other particular crimes further is one example of the historical importance of not conflating the terms “criminal disenfranchisement” and “felony disenfranchisement.”^[46] This is because Alabama’s Constitution established a very narrow class of crimes in which the state would exercise the power to strip its citizens of the right to vote. Thus, to suggest that this language was a historical precursor to modern felony disenfranchisement laws, which allow for any felony to be used as a basis for denying the right to vote, would be disingenuous.

Alabama’s 1819 Constitution was not alone in using this very narrow language. Just two years prior, Mississippi’s 1817 Constitution used identical language, as did Louisiana’s Constitution five years before that.^[47] The State of Florida, admitted to the Union in 1845, continued to operate under its territorial constitution adopted in 1839.^[48] Texas was admitted to the Union in December of that same year.^[49] Both states employed constitutional language that was identical the narrow class of crimes articulated by their sister states in Alabama, Mississippi, and Louisiana.

The State of California was admitted to the Union in 1850 under its 1849 constitution. The constitutional language used in that document proclaimed that, “[n]o idiot or insane person, or person convicted of any infamous crime, shall be entitled to the privileges of an elector.”^[50] The State of Arkansas, admitted in 1836, similarly employed the infamous crime disqualification in its state constitution declaring, “[t]he General Assembly shall exclude from every office of trust or profit, and from the right of suffrage, within this State, all persons convicted of bribery, perjury, or other infamous crime.”^[51]

2. DEFINING INFAMOUS CRIMES

What did these states mean, however, by the phrase infamous crime? Law dictionaries suggest that the phrase related to a class of severe offenses. For example, a law dictionary, published in 1792, defined “infamous persons” as those who were:

[D]isabled either to be witnesses or jurors. A conviction of treason or felony, or judgment for any heinous crime to stand on the pillory, or to be whipped, or branded, are good causes of exception. But no such conviction or judgment [could] be made use of for such disability, unless the record be actually produced in court.^[52]

The same dictionary defined the term “felony” as “a technical term” that, “signifie[d] in a more restrained sense an offence of an high nature, yet it [was] not limited to capital offences only, but still retain[ed] somewhat of this larger acceptation; for petit larceny is a felony although it [was] not capital.”^[53] Other contemporaneous legal dictionaries shared similar views. For example John Bouvier’s law dictionary, published in 1839, defined infamy as, “that state which is produced by the conviction of crime and the loss of honor, which renders the infamous person incompetent as a witness.”^[54] It went on to define an infamous crime as, “an offence which is inconsistent with the common principles of honesty and humanity” including “treason,” “felony,” “all offences founded in fraud, and which come within the notion of the crimen falsi of the Roman law,” “perjury and forgery,” “piracy,” “swindling, cheating,” “barretry,” “and the bribing a witness to absent himself from a trial, in order to get rid of his evidence.”^[55] The term felony was defined as, “an offense which occasions a total forfeiture of either lands or goods or both at common law; and to which capital or other punishment may be superadded according to the degree of guilt.”^[56]

These contemporaneous interpretive aids are necessary to understand the meaning of those state constitutions that, like California and Arkansas, employed “infamous crimes” disenfranchisement provisions. They demonstrate that constitutions employing “infamous crimes” provisions encompassed an exhaustive realm of the type of crimes that could result in one’s vote being denied. In other words, state legislatures were not free, as they are today, to define any activity as a crime, whereupon a person could lose their vote if convicted. States who employed this language understood that denying the right of the citizen to participate in her government was such a severe sanction that only offenses of a “high nature” or those that called into question one’s honest character should merit the penalty.

3. APPLICATION OF THE INFAMOUS CRIME DEFINITION

It is with this backdrop in mind that the Ramirez Court’s use of history to conclude that the Fourteenth Amendment permitted modern felony disenfranchisement was at least questionable if not entirely flawed.^[57] At its best, the “infamous crime” language of the Antebellum Period gives support to the proposition that some states permitted the disenfranchisement of citizens convicted of felonies and other severe crimes. However, crimes constituting a felony were cabined by the traditional common law understanding and were not able to be expanded upon by state legislatures. This view was shared and ratified by members of the Reconstruction Congresses as discussed infra Part III.C.

Though these criminal disenfranchisement provisions were constrained to penalizing a very particular class of severe crimes, their use was likely still a result of mischievous intentions on the part of state lawmakers. Disenfranchisement provisions appeared more frequently in state constitutions as the right to vote was expanded to more people. This is evidenced by the fact that from 1791, when Vermont joined the Union, to 1856, nearly every state removed property ownership as a requirement for exercising the right to vote, also known as universal white male suffrage.^[58] In fact, some state constitutions removed the property ownership requirement and provided for disenfranchisement all in one breath. Take a prior example of a founding state with no disenfranchisement provisions, New Jersey. In its 1776 charter, only those who were inter alia, “worth fifty pounds proclamation money, clear estate in the same,” could exercise the right to vote.^[59] However, in its 1844 constitution extending the right to “every white male citizen,” it simultaneously disenfranchised any “person convicted of a crime which [then] exclude[d] him from being a Witness unless pardoned or restored by law.”^[60] Another example of this tradeoff between property ownership requirements and disenfranchisement was seen in Maryland. In exchange for dropping its property-holding voting requirement enshrined in its 1776 charter,^[61] Maryland’s 1851 Constitution disenfranchised persons convicted of bribery and other election-related crimes.^[62] Virginia’s 1850 Constitution similarly made a tradeoff by removing the property owner requirement from its 1776 constitution and permitting disenfranchisement for bribery and infamous crimes.^[63] What is important for purposes of constitutional analysis is that the Framers of the Fourteenth and Fifteenth Amendments were aware of this historical correlation between the expansion of suffrage and tougher disenfranchisement laws. And it was precisely because of this practice that they worked to intentionally restrain its uses among the states.

C. THE CIVIL WAR AND BEYOND

The turning point in the use of criminal disenfranchisement rightfully can be demarcated by the admittance of Kansas into the Union, which coincided with the beginning of the Civil War. In January 1861, the State of Kansas was admitted into the Union as a free state.^[64] But, its state constitution employed language much less in alignment with its sister states and more in line with the language employed in modern state constitutions; namely, it declared that “no person under guardianship, non compos mentis, or insane, shall be qualified to vote; nor any person convicted of treason or felony, unless restored to civil rights.”^[65] This broad language permitting disenfranchisement on the basis of conviction for any felony began the trend toward the modern weaponization of felony disenfranchisement. One immediate difference between the State of Kansas and the aforementioned states, excluding Vermont, is that in those states, the institution of slavery was legal. In Kansas, it was not. In slave states, there was no need to employ language that disenfranchised across a broad class of felonies to prevent Black Americans from voting because neither those enslaved nor free were considered citizens.^[66] However, in a free state like Kansas, where Black Americans could potentially enjoy few freedoms—even if not the right to vote—it made sense to have a broad disenfranchisement tool available to exclude them in the event that the rights of full citizenship became available. But why would a state adopt strict felony disenfranchisement laws for a class of people who, only four years prior, were declared to not be citizens of either the states or the nation?^[67] The answer is that the thought of Black Americans attaining the rights of citizenship in the near future was not far-fetched.

To provide context, this Court handed down the now infamous decision in Dred Scott v. Sandford in 1857—only four years before Kansas’ entry into the Union.^[68] There, Chief Justice Taney, writing for the Court, held that, “[Black Americans] [were] not included, and were not intended to be included, under the word “citizens” in the Constitution, and [could] therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”^[69] This abhorrent decision, since expelled from the Court’s canon of jurisprudence, was largely regarded as a precipitant for the Civil War.^[70]

Moreover, the election of Abraham Lincoln to the presidency in 1860 was regarded as being the proverbial “straw that broke the camel’s back,” marking the beginning of the Civil War. In fact, in January 1861—during the interregnum preceding Lincoln’s inauguration in March of that year—the South Carolina State Legislature convened a convention calling for secession.^[71] Of the many reasons listed for seceding from the Union, the Convention lamented:

A geographical line has been drawn across the Union, and all the States north of that line have united in the election of a man to the high office of President of the United States, whose opinions and purposes are hostile to slavery. He is to be entrusted with the administration of the common Government, because he has declared that that “Government cannot endure permanently half slave, half free,” and that the public mind must rest in the belief that slavery is in the course of ultimate extinction . . . . The guaranties of the Constitution will then no longer exist; the equal rights of the States will be lost. The slaveholding States will no longer have the power of self-government, or self-protection, and the Federal Government will have become their enemy.^[72]

As the war raged on, President Lincoln was placed under pressure by his military officials, cabinet members, and Northerners to make emancipation the central strategy of the war.^[73] These stakeholders believed that the emancipation of enslaved people in the South would open the door for Black men to join the Union Army in a moral crusade against slavery and oppression.^[74] Responding to this pressure, President Lincoln issued the Emancipation Proclamation on January 1, 1863. As a result, at the war’s end, the Union army boasted of 180,000 Black soldiers and 24,000 sailors in its navy.^[75] The enlistment of Black Americans in the Civil War signaled the beginning of the fulfillment of prophecy contemplated by Kansas’ disenfranchisement law–that civil rights were on the horizon. Reconstruction expert, Eric Foner, described in his renowned book that:

[B]lack soldiers played a crucial role not only in winning the Civil War, but in defining the war’s consequences. Their service helped transform the nation’s treatment of blacks and blacks’ conception of themselves. The ‘logical result’ of their military service, one Senator observed in 1864, was that ‘the black man [was] henceforth to assume a new status among us.’ For the first time in American history, large numbers of blacks were treated as equals before the law—if only military law. . . . and former slaves for the first time saw the impersonal sovereignty of the law supersede the personal authority of a master.^[76]

After the war, Americans could no longer ignore the increasing likelihood that Black Americans, especially in the South, would be the beneficiaries of new legal protections. Indeed, as expected, the United States Congress moved swiftly to constitutionalize and legislate upon the advancement of minimal civil rights for Black Americans. In 1865, it formally abolished slavery via the Thirteenth Amendment, and in the following year, passed the Civil Rights Act of 1866—the first in the nation’s history. This Act, thought by some to be the product of an unconstitutional exercise of congressional power, established birthright citizenship and provided Black Americans with the rights “to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as [was] enjoyed by white citizens . . . .”^[77] While the Act created no right of suffrage for Black Americans, it certainly signaled that the right was on its way. Southern states responded in kind. In an early 1867 edition of Harper’s Weekly, a prominent political magazine, the editors published an article titled “Whipping and Selling American Citizens.”^[78] The article described the process by which Black Americans were convicted in state courts and sentenced to public whippings that served to pre-disenfranchise them of their right to vote even though no right had yet been extended.^[79] Testimony offered by a man in North Carolina described the tactic:

[E]very day during about a month, while the State court was recently sitting at Raleigh, there was a crowd of nearly five hundred people outside the court-house witnessing the public whipping of colored men as fast as they were convicted and sentenced to be whipped by the court . . . . [T]his sentence of whipping operates in North Carolina as a civil disqualification, so that none of these victims, according to the local law, could ever vote, even if the suffrage were extended to colored men. They are disqualified in advance.^[80]

The article went on to summarize the effects of such practices: “[t]hus the freedmen are still pursued and sacrificed by the ancient laws of Slavery, and thus the rage of the baffled rebellion expends itself upon the most helpless and unfortunate of the population.”^[81] Such concerns about the “advanced disqualification” of Black Americans was the subject of debate in Congress just five days before the Harper’s Weekly article was published. When called to speak on the Reconstruction Act of 1867, Representative Thaddeus Stevens, the influential leader of the “Radical” Republicans in the House of Representatives, led a debate on the conditions to be imposed on Southern states seeking readmission into the Union.^[82] In this debate, the House was discussing a requirement for Southern states to provide for the suffrage of Black Americans. Representative Stevens offered this amendment: “And no person shall be deprived of the right to vote or otherwise disfranchised by reason of conviction or punishment for any crime other than for insurrection or treason or misprision of treason.”^[83] He then provided his rationale for offering the amendment:

I have received information from gentlemen connected with the Freedmen’s Bureau—I knew it for weeks past, but only yesterday received the information officially—that in North Carolina and other States where punishment at the whipping-post deprives the person of the right to vote, they are now every day whipping negroes for a thousand and one trivial offenses; and one of the lieutenants . . . told me last Saturday that they are taking them up in the different counties and in one county before he left they had whipped every adult male negro whom they knew of. They were all convicted and sentenced at once, and he ascertained by intermingling with the people that it was for the purpose of preventing these negroes from voting under the bills which have been passed.^[84]

Stevens’ proposal was met with fierce opposition. Representative John Bingham, the author of what became Section One of the Fourteenth Amendment, colorfully referred to the amendment as a “monstrous atrocity.”^[85] He criticized Representative Stevens’ amendment as one that would grant the elective franchise to “thieves, robbers, and assassins.”^[86] Representative Andrew Ward of Kentucky critiqued that the amendment would place “every man who ever committed manslaughter, rape, arson, or burglary,” who “was thus rendered infamous and disfranchised by a judgment of conviction . . . to be a prominent and qualified voter in the reconstruction of these States.”^[87] Representative Baker of Illinois opined that he did not “suppose it would be a very difficult thing to provide for the [objective of the amendment] without adopting the extraordinary and unheard-of provision that robbers, thieves, murderers, and criminals in general may be empowered to exercise the elective franchise in laying anew the foundations of a State government.”^[88] Representative Thomas Eliot of Massachusetts offered the final objection to the amendment arguing he did not “think we want to admit to vote those who have been disfranchised by reason of crimes heretofore committed, such as murder, robbery, etc.”^[89] This prompted a brief final defense from Representative Stevens who again explained that “throughout the South they are whipping negroes under pretended conditions for crime, so as to render them, under their laws, disqualified from ever voting. It is to meet such cases as those that this provision was inserted.”^[90] Representative Eliot expressed his support of the object of the amendment but maintained his concerns.^[91] The bill, with Representative Stevens’ amendment, was ultimately approvingly referred to the Joint Committee on Reconstruction with eighty-nine members in support, sixty-five opposed, and thirty-eight not voting.

The Joint Committee ultimately reported to the full House a compromise in which Southern states were permitted to deny the franchise to people convicted—not of any felony—but of a “felony at common law[.]”^[92] Limiting disenfranchisement to felonies at common law meant that states could not simply define any activity as a felony and disenfranchise Black Americans in consequence of such.^[93] An exchange between Representatives Nathaniel Prentice Banks and John Bingham on the House floor confirmed this compromise. When Representative Banks insinuated that the Southern state governments could get around the legislation by defining felonies at common law, Representative Bingham argued, “[t]he governments of the rebel states cannot make a man a felon by statute who is not such at common law.”^[94]

What story does this legislative history tell? It tells the story of how even in 1867, Congress was aware of the harmful and disproportionate impact felony disenfranchisement had on Black Americans. Congress, through the legislative process, eventually landed on a compromise that would limit the ability of Southern states to use legislation to deny the franchise to new Black citizens. Some states, like South Carolina, in which Black delegates made up the majority of its 1868 constitutional convention, provided more constitutional protections than Congress.^[95] Others, like Florida–whose constitutional convention made a successful last-minute bid to change its voting laws–were quick to build a disenfranchisement regime that would run afoul of Congress’s intentions.^[96] Whatever the case, the record clearly demonstrates that protecting the voting rights of Black Americans from the schemes of Southern legislatures was a priority for the Congress who authored the Reconstruction Act—many of whose members played a role in framing the Fifteenth Amendment as well. Congress’s understanding of the disproportionate harms of felony disenfranchisement thus must be accounted for when interpreting the Previous Condition of Servitude Clause and the types of practices it proscribes.

This legislative history reveals another piece in the interpretive puzzle. It provides a direct line into the values held by members of the Congress that would ultimately enact the Fifteenth Amendment. As discussed supra, the Ramirez Court relied on the following history of criminal disenfranchisement laws to support its claim that the Constitution permitted the practice:

Further light is shed on the understanding of those who framed and ratified the Fourteenth Amendment, and thus on the meaning of § 2, by the fact that at the time of the adoption of the Amendment [in 1868], 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.^[97]

As previously mentioned, the Ramirez Court’s analysis was already undermined by the fact that “felonies or infamous crimes” as used within state constitutions at that time were terms of art that could not be conflated with the modern understanding of felonies.^[98] However, even assuming arguendo that Ramirez was correct in its premise that historic criminal disenfranchisement laws were the precursors to modern felony disenfranchisement, Congress’s value judgments cannot go ignored. A majority of the House of Representatives was willing to abrogate, or seriously undermine, the disenfranchisement provisions of these twenty-nine states for the sake of protecting the right of Black Americans to vote. A majority of the House of Representatives was willing to place a total ban on this practice, at least in the South, despite vociferous opposition of members who saw such a decision as a “monstrous atrocity”^[99] expanding the franchise to “thieves, robbers, and assassins.”^[100] It bears repeating that they were willing to make such a decision for the sole purpose of eliminating disenfranchisement as a scheme to deny Black Americans the full right to participate as citizens in their government. While Congress ultimately opted for the compromise language of limiting disenfranchisement to “felonies at common law,” its initial willingness to go as far as ending disenfranchisement altogether is a testament to the values underlying the Reconstruction legislation and accompanying amendments. It is with these values in mind that I proceed to discussing the Fifteenth Amendment’s Previous Condition of Servitude Clause and the rights that the phrase embodies.

IV. WHAT HAVE OTHERS SAID OF THE PREVIOUS CONDITION OF SERVITUDE CLAUSE?

Few courts and scholars have ever opined on the meaning of the Previous Condition of Servitude Clause. This Court has certainly never offered an interpretation. However, the handful of lower courts and legal scholars who have attempted to give meaning to this clause have contributed important perspectives to the conversation.

A. COURT RULINGS ON FELONY DISENFRANCHISEMENT

Courts, both state and federal, having occasion to interpret the clause, have never engaged in a meaningful analysis of its commands. For example, in People v. DeStefano, an Illinois State Court of Appeals upheld the guilty verdict of a man convicted of illegal voting. His conviction arose out of Illinois’ felony disenfranchisement law permanently prohibiting persons convicted of a felony from voting.^[101] The defendant had a prior rape conviction from nearly four decades earlier that made him ineligible under the state statute.^[102] He argued before the Court of Appeals that “a convicted felon [was] no less a citizen of the United States. And although the Fifteenth Amendment was adopted after the Civil War primarily to insure [sic] the right to Negroes to vote in southern states, the plain language of the Amendment applie[d] to the defendant here. His ‘previous condition of servitude’ in a penitentiary [was] held to bar his voting; but that is a condition prohibited by the Amendment.”^[103] The Court of Appeals, relying on dicta from this Court’s holding in Lassiter v. Northampton Cnty. Bd. of Elections, concluded that states may consider “previous criminal record[s]” when determining voter qualifications and thus, held that the defendant’s argument was “without merit.”^[104] In so holding, the Court of Appeals relied on dicta from this Court not addressing the specific constitutional question before us today. However, this Court has repeatedly held that we are “not bound to follow [our] dicta in a prior case in which the point at issue was not fully debated.”^[105] Accordingly, the Court of Appeals’ decision in Lassiter provides no persuasive answer to the question we must decide today: whether the Previous Condition of Servitude Clause proscribes permanent felony disenfranchisement laws.

Few federal district courts have had occasion to hear claims under the provision, but those that have, have erroneously interpreted its meaning without clear instruction from this Court. Take, for example, a case arising out of the United States District Court for the Eastern District of Wisconsin. The District Court’s analysis of the provision was as follows:

Finally, the proposed second amended complaint reiterates the plaintiff’s claim, made in earlier cases, that Wisconsin’s prohibition on his right to vote violates his rights under the Fifteenth Amendment (the amendment that prohibits federal and state governments from abridging citizens’ right to vote based on, among other things, “previous condition of servitude”) and the Thirteenth Amendment (which prohibits slavery and involuntary servitude). The judges in the plaintiff’s prior cases have rejected these claims, and they were right to do so. The Thirteenth Amendment states that “[n]either slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States . . . .” It specifically excepts convictions from the definitions of “slavery” and “involuntary servitude.” For the same reason, Wisconsin’s law prohibiting felons to vote does not violate the Fifteenth Amendment, because it is not a law prohibiting people from voting based on a previous condition of “servitude.”^[106]

Like the scholarly articles referenced below, the federal district court conflated the meaning of “involuntary servitude” within the Thirteenth Amendment to give meaning to the phrase “condition of servitude” within the Fifteenth Amendment. However, it defies logic and history to apply such an analysis of the Thirteenth Amendment to define the Fifteenth Amendment. To be sure, thorough constitutional analysis encourages reading provisions with similar history and language together.^[107] But that method of interpretation does not demand a particular result simply because those provisions share history and language. In other words, the shared history and language of the Thirteenth and Fifteenth Amendments can inform how the provisions should be interpreted, but they do not necessarily dictate equivalent meanings.

As a starting point, the district court reasoned that because the Thirteenth Amendment’s “Exception Clause” limits the text’s general prohibition whenever a person has been convicted of a crime, the same must be true for the Fifteenth Amendment.^[108] This is true, the district court held, because the Fifteenth Amendment also uses the word “servitude.”^[109] The district court thus implicitly conceded that if the Exception Clause in the Thirteenth Amendment is of no relevance, then a colorable argument could be made that criminal convictions might constitute “condition[s] of servitude” within the meaning of the Fifteenth Amendment. A brief textual and historical analysis proves why the Thirteenth Amendment’s Exception Clause is of no relevance here.

As discussed infra, legislative history shows that the Senate overwhelmingly rejected a version of the Amendment that included an Exception Clause. While the reasons for rejecting an exception clause in the Fifteenth Amendment are not entirely clear, it bears mentioning that Congress also included a criminal exception clause in the statutory precursor to the Fifteenth Amendment. In the Reconstruction Act of 1867-1868, Congress provided the terms by which the former Confederate States could reenter the Union. Section Five of the Act included a requirement that those states’ constitutions enshrined a right to vote for:

[T]he male citizens of [each] State, twenty-one years old and upward, of whatever race, color, or previous condition, who have been resident in said State for one year previous to the day of such election, except such as may be disfranchised for participation in the rebellion or for felony at common law . . . .^[110]

The district court’s superimposition of a criminal exception in the Fifteenth Amendment is then seriously weakened, given that Congress could have used identical legislative language to achieve that end, yet chose not to. Accordingly, if the district court’s implied concession is true—that criminal convictions may be considered a “condition of servitude” in the absence of a criminal exception clause—then Congress’s affirmative legislative choice suggests that they do fall within that meaning.^[111] Additionally, as discussed below, it simply does not logically follow that the definition of “involuntary servitude” as used in the Thirteenth Amendment should be superimposed onto the meaning of “condition of servitude” as used within the Fifteenth. The Thirteenth Amendment imposes clear limits on what “involuntary servitude” is: forced labor as a punishment for a crime. The interpretive analysis I pursue within Part IV demonstrates that a “condition of servitude” is much more than forced labor or a particular punishment. Rather, it encompasses an entire state of being.

B. LEGAL LITERATURE

Some works of legal scholarship seeking to interpret the clause as proscribing felony disenfranchisement have similarly attempted to do so by anchoring its meaning in the “involuntary servitude” provision of the Thirteenth Amendment.^[112] One article suggested that the Thirteenth Amendment should be used to define the Fifteenth Amendment because: (1) the amendments were ratified within four years of each other and thus, their common drafters likely did not intend the same word to have two different meanings; (2) both amendments had the same purpose of securing the civil rights of African Americans; and (3) Congress used the word “servitude” in the Fifteenth Amendment after using and defining it within the Thirteenth Amendment.^[113] As the scholars acknowledge, this Court has interpreted “involuntary servitude” both in the statutory and constitutional contexts to be “limited to cases involving the compulsion of services by the use or threatened use of physical or legal coercion.”^[114] In other words, “involuntary servitude” is defined as forced labor. The Thirteenth Amendment merely describes the process a government must undergo to legally impose the punishment of forced labor on a person (i.e. criminal conviction in a court of law). Thus, conflating the meaning of the phrases “involuntary servitude” and “condition of servitude” does more to harm than help the argument being offered by the scholars. Their interpretation would limit the protection of the Fifteenth Amendment’s prohibition only to those who have been incarcerated and forced into labor. At the same time, their interpretation leaves those who have been convicted of crimes but not incarcerated and forced into labor without a constitutional remedy. When the meanings of the amendments are conflated, use of the Fifteenth Amendment to proscribe felony disenfranchisement becomes susceptible to the following criticism:

[S]ervitude is not coterminous with a felony conviction, and felon exclusion is based on a conviction, not servitude. Put another way, exclusion does not stem from servitude as forbidden by the Fifteenth Amendment; rather, exclusion and servitude both stem from conviction.^[115]

However, when the Fifteenth Amendment is interpreted under the lights of textual analysis and history, as I do in the next section, this criticism falls short. When the amendments are read only to inform each other, but defined independently, the Fifteenth Amendment lends itself more to an interpretation that likely proscribes permanent felony disenfranchisement. Professor Daniel Correa offers a clearer view of how the Thirteenth Amendment can inform our reading of the Fifteenth Amendment without defining the Amendment:

The Thirteenth Amendment placed every person in the United States on an equal footing; every person is considered free, regardless of race, and every person is equally subject to a condition of servitude, regardless of race, for punishment of crime. When a person completes her sentence, she is no longer under a condition of servitude; she is untainted by her previous condition of servitude and on an equal footing with every other citizen in the polity. Even as a nonpenal sanction, a state cannot extend disenfranchisement beyond the sentence without imbuing the citizen with that previous condition. The problem is not only that the state adjudges the citizen as morally and politically irredeemable, but also that the state reintroduces the worst aspects of the former slave system, which treated even freed slaves as incapable and unworthy of self-governance.^[116]

While Professor Correa recognizes that a person punished with “involuntary servitude” under the Thirteenth Amendment can amount to a form of servitude under the Fifteenth Amendment, he does not suggest that this is the only way in which a person can find themselves placed in a condition of servitude. In distinguishing between the meanings of the provisions, Professor Correa comes closer to the conclusion that I endorse: a person is placed within a condition of servitude when they are convicted of a crime. When that person is no longer convicted (i.e. when their sentence has ended), disenfranchisement must also end. In the following section, I offer a thorough analysis to buttress this conclusion.

V. CORE ANALYSIS

This Court is tasked with giving meaning to constitutional text that has laid dormant for the entirety of its 150-plus-year history. The Fifteenth Amendment of the United States Constitution declares:

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.^[117]

The question we must resolve is whether the Fifteenth Amendment’s prohibition on denying the franchise based on a “previous condition of servitude” proscribes state laws that permanently disenfranchise citizens. The fact that this Court has never been asked to interpret this portion of the Amendment does not suggest that its meaning is either settled or simple. We have ourselves explained on multiple occasions that “the first century of congressional enforcement of the Fifteenth Amendment . . . can only be regarded as a failure.”^[118] Surely, if in a century, both the Congress and this Court have struggled with giving full force to the primary race and color provisions of the Amendment, it is no surprise that we have also failed to give effect to its secondary provision.

As discussed below, the provision was the product of Congress’s intention to include a color-blind catchall to protect voters from race-neutral discrimination that relies on a person’s previous status as a basis of disenfranchisement. It does not require litigants to prove that the government’s actual reason for disenfranchisement was to discriminate on the basis of race or color. It only requires proof that the government is discriminating against a person or class of people because they once held a status of servitude. In that sense, it arguably goes further than some protections of the Fourteenth Amendment. Once the meaning of “condition of servitude” has been affixed, the only role left for the Court is to determine whether the person or class of people are in fact being discriminated against on that basis.

A. A PATH FORWARD UNDER THE FIFTEENTH AMENDMENT

This analysis begins with recognition that, on its face, the Amendment provides little clarity as to the meaning of the Previous Condition of Servitude Clause. As noted supra, state and federal courts seeking to interpret this phrase have attempted to tie its meaning to the “involuntary servitude” language of the Thirteenth Amendment.^[119] Such approaches by those courts are unsupported by either history or logic. Accordingly, before fully explaining the deficiencies of their approach, my dissent will provide the proper and independent constitutional explication of the Fifteenth Amendment that is due.

1. ORDINARY MEANING

As this Court articulated in our decision in District of Columbia v. Heller, “the Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.”^[120] The Merriam-Webster Dictionary proves to be insightful in the endeavor to determine the clause’s ordinary meaning both near the time of its ratification and at present. The 1878 publication of the Merriam-Webster dictionary defined the word “previous” to mean “prior” or “antecedent.”^[121] It defined “condition” as a “state or situation as regards external circumstances.”^[122] It primarily defined the term “servitude” to mean “the state of voluntary or involuntary subjugation to a master.”^[123] The term “master” was defined as “one exercising authority; a person having a right to control or dispose.”^[124] And finally, the term “subjugate” was defined as meaning “to subdue and bring under the yoke of power or dominion.”^[125] A fair and natural reading of these terms thus suggests that the ordinary meaning of “previous condition of servitude” shortly after the Amendment’s ratification was a “prior state in which a person was voluntarily or involuntarily subdued under the power or dominion of one exercising the authority to control or dispose.” Today’s definitions provide for an equally, if not more expansive interpretation.

In the most recent publication of the Merriam-Webster Dictionary, the word “previous” is defined as “going before in time or order.”^[126] The word “condition” is defined as a “state of being” or “social status.”^[127] Finally, the word “servitude” is presently defined as “a condition in which one lacks liberty especially to determine one’s course of action or way of life.”^[128] Accordingly, the most natural reading of these terms suggests a modern ordinary meaning of “previous condition of servitude” as a “prior state or social status in which one lacked liberty especially to determine one’s course of action or way of life.”

The ordinary meanings of the clause from 1878 and 2025 share a common theme. They both describe conditions in which a person’s autonomy is substantially limited. The 1878 definition focused on who or what served as a limit on a person—namely, the power of one who exercises authority. The modern definition focuses on the particular aspect of the person that is being limited—namely, their ability to determine their course of action or way of life. Understanding who is doing the limiting and what is being limited is pertinent to developing the clause’s meaning. Thus, a harmonized ordinary meaning of “previous condition of servitude” is a prior status in which a person lacked the liberty to determine their course of action or way of life and was voluntarily or involuntarily subdued to the power or dominion of one who possessed the authority to control. This harmonized ordinary meaning is consistent with the approach and understanding of Supreme Court Justice Stephen Johnson Field, who understood the term to encompass more than just forced labor.

2. JUSTICE FIELD’S DISSENT

The extensive legislative history discussed infra Part V.A.3, evidenced a congressional intent to pass an amendment that would reach beyond the then-present concern of African American slavery. The limits of this reach, however, were first described inadvertently by Justice Stephen Johnson Field’s dissent in the infamous Slaughter-House Cases decided in 1872—only two years after the Fifteenth Amendment’s ratification.^[129] In his dissent, Justice Field offered the first, and only, judicial construction of “condition of servitude,” notably unencumbered by the definition of “involuntary servitude.” Under Justice Field’s definition:

A prohibition to [a person] to pursue certain callings, open to others of the same age, condition, and sex, or to reside in places where others are permitted to live, would so far deprive [said person] of the rights of a freeman, and would place [them], as respects others, in a condition of servitude.^[130]

True, Justice Field’s explication was being offered to address the question of whether a state sanitation law that required butchers to conduct their work at a particular slaughterhouse constituted “involuntary servitude” within the Thirteenth Amendment.^[131] However, in answering this question, Justice Field was clear not to conflate the meaning of “involuntary servitude” with “condition of servitude.” In fact, he explicitly stated that practices compelling a person to forced labor for the pleasure of another (involuntary servitude) could be considered an “element of servitude.”^[132] This important characterization served to explain that while all forms of “involuntary servitude” fell within his provided definition of “condition of servitude,” it did not necessarily follow that forced labor was the only form of servitude to exist." For example, under the Justice’s definition, a restriction on the places where a person could live could also amount to a “condition of servitude,” separate and apart from any labor requirements. While Justice Field’s definition of “condition of servitude” was arguably incomplete, given its applicability only to labor in this context, the importance of his interpretation was in its fundamental premise that the term encompassed more than just forced labor.

This logic is sound. When considered within the context of each amendment, conflating the meaning of “involuntary servitude” and “previous condition of servitude” would make little sense. The shared history of these phrases reveals that they were both employed to define the social status of newly emancipated African Americans relative to their condition before the ratification of both Amendments. The Thirteenth Amendment employed the phrase “involuntary servitude” to prohibit people from effectively re-enslaving African Americans under forced labor systems similar to slavery under the guise of different names. The only time such servitude would be permitted would be as a “punishment for [a] crime.”^[133] Similarly, the Fifteenth Amendment employed the phrase “condition of servitude” to prevent states from denying African Americans, and others, the right to vote based on oppressive caste systems that operated like slavery, under the guise of different names. The important difference between the phrases, however, is that the Thirteenth Amendment describes a prohibited act and the limited occasion in which it may be employed as a punishment, whereas the Fifteenth Amendment contemplates a status and a prohibition on states from denying the vote in consequence of such status. Justice Field’s definition of “condition of servitude” supports my contention that just two years after the Fifteenth Amendment was ratified, there was an early understanding of the difference between an act described in one amendment and a status described in the other. The Fifteenth Amendment’s legislative history, discussed below, sheds further insight on just how far the Amendment’s framers thought this status could reach.

3. LEGISLATIVE HISTORY

The Fifteenth Amendment, like most legal provisions, did not start out in its present form. It only came to be written as is through the efforts of different political factions within the Congress and across the country.^[134] One leading authority described the factions as:

[T]he politicians, who aimed at congressional control over Southern elections, the nationalists, who desired a strong central government, and the universal suffragists, or humanitarians, as they may be called who were laboring to base the enjoyment of political rights upon no distinction less comprehensive than humanity itself. Over against all three of these, and opposed to a suffrage amendment of any kind, were the local autonomists, proud of local tradition and jealous of national interference in local concerns.^[135]

When the House Judiciary Committee submitted the first joint resolution proposing the Fifteenth Amendment on January 11, 1869, the universal suffragists opposed it for being too narrow.^[136] That proposal included language which declared:

The right of any citizen of the United States to vote shall not be denied or abridged by the United States or any State by reason of the race, color, or previous condition of slavery of any citizen or class of citizens of the United States.^[137]

This proposed language ultimately passed in the House by a vote of 150 to 42.^[138] In the other wing of the Capitol, the Senate Judiciary Committee proposed language on January 15, 1869, which declared:

The right of citizens of the United States to vote and hold office shall not be denied or abridged by the United States or by any State, on account of race, color, or previous condition of servitude.^[139]

According to Mathews, this proposal also faced opposition from the universal suffragists who believed a constitutional amendment should go beyond providing protections solely based on race.^[140] Specifically, they objected on the grounds that amending the Constitution “should be done in the name of humanity, not of a race.”^[141]

Additionally, the nationalist faction believed that the Federal Government should take a more direct approach and affirmatively grant all citizens the right to vote rather than prohibit the abridgement of the right based on certain qualities.^[142] Accordingly, the nationalists and humanitarians collaborated to offer a substitute amendment to the one offered by the Senate Judiciary Committee that declared:

All male citizens of the United States, residents of the several States . . ., of the age of twenty-one years and upward shall be entitled to an equal vote in all elections in the State wherein they shall reside; the period of such residence as a qualification for voting to be decided by each State, except such citizens as shall engage in rebellion, or be convicted of infamous crime.^[143]

This proposed substitute lost overwhelmingly by a vote of nine to thirty-five.^[144] It is important to note that while none of this language made it into the final version of the Amendment, the proposal’s exception clause—which was similar to the language of the exception clause already contained within section two of the Fourteenth Amendment—never reappeared in the subsequent amendments to be offered. It is telling that in rejecting this substitute and its exception clause, the members in opposition reasoned that no “inflexible rule” on the subject of suffrage should have been codified in the Constitution.^[145] The opposition to an inflexible rule was likely an acknowledgement that Congress would have liked to maintain some control over who would have the ability to participate in the democratic process in a nation with rapidly changing demographics. As discussed supra, Congress included a criminal exception clause in the Fifteenth Amendment’s statutory precursor in the Reconstruction Act of 1867-1868. It begs the question: aside from not wanting to constitutionalize an inflexible rule, why would Congress reverse course on including a criminal exception clause only two years later in the Fifteenth Amendment? One answer may lie in a fact mentioned briefly above.

At the time when Congress was drafting the Reconstruction Act of 1867-1868, it became aware of allegations that in North Carolina, felony disenfranchisement was being used as a tool to explicitly deny African American men the right to vote. While Congress had yet to enshrine such a right for African American men, state officials were convicting them of petty felony offenses in full anticipation that the franchise was coming soon. Aware of this fact, the House of Representatives heavily debated and submitted a version of the act to the Joint Committee on Reconstruction that only permitted states to pass disenfranchisement laws for the crime of treason over the passionate opposition of many in the House. Ultimately, that language was removed from the Act, and compromise language was inserted, allowing states to disenfranchise persons convicted of felonies at common law. Thus, another reason why Congress may have removed a criminal exception clause from the Fifteenth Amendment was because of its belief that Black Americans should receive constitutionalized protections for the right of suffrage free from any disenfranchisement language that had historically been wielded as a tool against them.

In opposition to any inflexible suffrage provision, some of the nationalists offered another proposal declaring:

Congress shall have power to abolish or modify any restrictions upon the right to vote or hold office prescribed by the constitution or laws of any State.^[146]

This Amendment was seen as overly flexible in that it would have given Congress the power to expand the rights of the electorate but never place any restrictions on that right.^[147] It too was overwhelmingly rejected by a vote of six to thirty-eight.^[148] In order to appease the local autonomists who believed the subject of any constitutional amendments should be limited to redressing the principle evil that existed at the time—the denial of African American suffrage—a substitute was proposed declaring:

Citizens of the United States of African descent shall have the same right to vote and hold office as other citizens.^[149]

Senator Howard of Michigan defended the proposition and argued that “[t]he sole object of this whole proceeding is to impart by a constitutional amendment to the colored man the ordinary right of citizens of the United States.”^[150] As expected, this proposal was opposed by the universal suffragists, who did not believe in amending the Constitution to protect one race.^[151] Accordingly, the substitution was defeated by a vote of sixteen to thirty-five.^[152] The universal suffragists made one final attempt at offering a substitute by proposing that states be prohibited from denying the right to vote based on “race, color, nativity, property, education, or creed.”^[153] This version was ultimately adopted by the Senate but rejected by the House—forcing the two chambers to turn to a conference committee which would iron out the details.^[154] The committee drafted the Fifteenth Amendment as it is known today, declaring:

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.^[155]

This proposed version notably excluded the right to “hold office” included in the previous version reported by the Senate Judiciary Committee. This angered many senators; however, realizing this would likely be the strongest protection that political feasibility would allow, the Senate approved the Amendment by a vote of thirty-nine to thirteen.^[156] The House similarly supported the Amendment by an overwhelming vote of 144 to 44.^[157]

The legislative history of the Fifteenth Amendment demonstrates that, like most law, it was the product of compromises. There are many inferences one could make about the motives and reasoning of members who voted for the ultimate version of the Amendment. Yet, one thing appears strikingly clear from the legislative history—members of Congress adopted an amendment that went further than the principal concern of protecting the right to vote for enslaved African Americans. They rejected language that confined protections to those whose rights were abridged due to their “previous condition of slavery,” and they rejected language that confined protections to citizens of “African descent.” While the legislative history of the Amendment does not provide a clear definition of the meaning of the Previous Condition of Servitude Clause, it does make clear that the Amendment’s protections would reach beyond the principal class of persons in the minds of legislators at that time.

Additional legislative history from the Senate provides further support for this claim. Senator William Stewart of Nevada clarified that “[i]f there [was] anything growing out of [a] person’s condition of servitude, such as [denying the franchise to the descendants of enslaved persons], or such as former slavery of this class of persons, the States are prohibited from disenfranchising in consequence of it. This amendment would receive judicial construction, and there would be no doubt about it.”^[158] Senator Stewart’s comments establish that the framers of the Amendment understood that even today, a state could not deny a person, regardless of their race, of the right to vote based upon their being a descendant of an enslaved person. This legislative history further supports my contention that a person’s condition of servitude is not limited to a definition that is tied to forced labor. Senators’ beliefs that the clause could provide constitutional protections against laws seeking to disenfranchise the descendants of enslaved people are indicative that a “condition of servitude” encompasses much more than labor. Senator Stewart’s comments, while focused on the immediate concerns of slavery, nevertheless provided a baseline for the idea that the Fifteenth Amendment’s protections extended beyond that of African Americans who had previously been enslaved. This Court has positively acknowledged this history, explaining that:

[T]he immediate concern of the [Fifteenth] Amendment was to guarantee to the emancipated slaves the right to vote, lest they be denied the civil and political capacity to protect their new freedom. Vital as its objective remains, the Amendment goes beyond it. Consistent with the design of the Constitution, the Amendment is cast in fundamental terms, terms transcending the particular controversy which was the immediate impetus for its enactment. The Amendment grants protection to all persons, not just members of a particular race.^[159]

The legislative history of the Amendment sheds light on a remarkable truth. The Fifteenth Amendment’s framers understood the racial and ethnic groups who were forced to live on the fringes of society would often find themselves facing race-neutral oppression; especially at the hands of former Confederate state governments. Indeed, when proponents of the Fifteenth Amendment were questioned as to how it would prevent state governments from evading its racial provisions, they offered the Previous Condition of Servitude Clause as providing the answer.^[160] This is because the clause serves as a catchall that sees through race-neutral pretexts used to disenfranchise citizens. The framers likely included this protection because their understanding of race dynamics in the Reconstruction South informed them that there was a need for a flexible suffrage amendment that could protect classes of people from pretextual conditions on their voting rights. That they adopted an amendment that expanded its protections beyond formerly enslaved persons demonstrates their understanding that African Americans and other marginalized groups would be subjected to constant attempts to deny their full citizenship—often in forms of oppression seemingly different than slavery. Whether that oppression took the form of peonage, indentured servitude, or, as I argue, criminal conviction, the clause’s broad language ensured that such adversity could not be used to justify a person’s disenfranchisement.^[161] How then, in light of the text, past interpretations, legislative history, and the expressed concerns of Congress, should the Previous Condition of Servitude Clause ultimately be interpreted? I offer a definition below.

4. THE UNIFIED RULE

Considering the ordinary meaning of the text, legislative history, a credible contemporaneous judicial interpretation, and congressional value judgments, I would hold that a “previous condition of servitude” within the meaning of the Fifteenth Amendment is defined as:

Any prior status in which a person or class, subject to the power, control, dominion, or authority of another, was deprived of the liberty shared by others in a free society, to make decisions about their course of action or way of life.

This definition incorporates elements from both the 1878 and modern dictionary definitions. It also incorporates elements of Justice Field’s opinion that the phrase encompasses more than forced labor and considers a person’s liberty relative to others. And most importantly, it is faithful to Congress’s intent that the Fifteenth Amendment would reach beyond the principal objective of securing the right of suffrage for formerly enslaved Black American men. The only question remaining is whether this definition reaches far enough to proscribe permanent felony disenfranchisement laws.

B. THE ANSWER

Congress adopted the Fifteenth Amendment with a vast history in mind. To recap, at the time of the Amendment’s enactment, Congress was aware that criminal disenfranchisement had no long-standing history in the United States.^[162] Congress was privy to a historical record that demonstrated how disenfranchisement laws became farther reaching and served to disqualify more citizens as the right to vote expanded beyond property holding white men to eventually Black American men.^[163] Congress also made a bold statement about its values when it demonstrated a willingness to abrogate all forms of disenfranchisement for the sake of protecting the right to vote for newly freed Black Americans.^[164] In recognition of the fact that Black Americans could always be vulnerable to the schemes of states wanting to limit their political participation, Congress passed the Reconstruction Act of 1867 along with the Fourteenth and Fifteenth Amendments, cast in broad, fundamental terms, to ensure sufficient protections were offered. ^[165] Congress also included a broad, catchall provision in the form of the Previous Condition of Servitude Clause, whose text provides far-reaching protections to people who may be denied the vote the vote solely because at one point in time they were denied the full liberties that accompany citizenship. It is with these considerations in mind that I conclude that the Fifteenth Amendment’s Previous Condition of Servitude Clause proscribes permanent felony disenfranchisement laws.

Permanent felony disenfranchisement laws are those which deny persons who were convicted of a felony offense of their right to vote, solely because of that conviction. The state constitutions of Florida, Kentucky, and Virginia illustrate the point. Florida’s State Constitution provides:

(a) No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability. Except as provided in subsection (b) of this section, any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation. (b) No person convicted of murder or a felony sexual offense shall be qualified to vote until restoration of civil rights.^[166]

Kentucky’s Constitution provides:

Persons convicted in any court of competent jurisdiction of treason, or felony, or bribery in an election, or of such high misdemeanor as the General Assembly may declare shall operate as an exclusion from the right of suffrage, but persons hereby excluded may be restored to their civil rights by executive pardon.^[167]

Virginia’s Constitution provides:

No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority.^[168]

Per these state constitutions, only when a person has been adjudicated guilty of a felony offense do the disenfranchisement provisions kick in. In other words, the only way these states may constitutionally deprive one of their citizens of their right to vote is to convict them of any crime the state’s legislature has designated as a felony. Consistent with the insidious trend discussed supra, these state constitutions contain the broadest disenfranchisement provisions to exist within American history.^[169] In a multiracial democracy where the franchise has been extended to people of every race, every sex, and every age eighteen years and older, it makes sense that many state disenfranchisement provisions have expanded to penalize people who have participated in any type of felonious offense.^[170] This vast expansion has proven to be fatal to the concerns of the framers of the Reconstruction Amendments because states are now empowered to define any crime as a felony and disenfranchise in consequence of such. Even members of this Court have acknowledged the ease at which states may now define crimes as felonies.^[171] Justice Neil Gorsuch, speaking in oral arguments relating to the warrant requirement under the Fourth Amendment, argued:

[W]e live in a world in which everything has been criminalized. And some professors have even opined that there’s not an American alive who hasn’t committed a felony in some – -- under some state law. . . . [And that] what qualified as a felony at common law was – -- were very few crimes and they were all punished by the death penalty usually, and today pretty much again anything or everything can be called a felony.^[172]

Consequently, disenfranchisement laws have devolved from provisions that originally only applied to severe crimes such as bribery or forgery, to provisions that may now strip people of their right to vote for being convicted of varying felony offenses. These offenses can include computer hacking,^[173] drug possession offenses,^[174] driving on a suspended license,^[175] and even harvesting sea turtle eggs.^[176] Simply put, legislatures empowered by broad felony disenfranchisement provisions have nearly unfettered discretion to determine what types of crimes may result in a person’s disqualification from voting. But how might these felony convictions place a person within a condition of servitude?

Black’s Law Dictionary defines “conviction” as “[t]he act or process of judicially finding someone guilty of a crime” and “the state of having been proved guilty.”^[177] Importantly, the definition contemplates that a conviction is both a singular act that happens at a set moment in time as well as a status. And in the American criminal legal system, a person’s liberty becomes subject to some form of constraint at the moment they are adjudged guilty by a court of competent jurisdiction.^[178] In that sense, a felony conviction places a person within a condition of servitude. This is the hook upon which Petitioner bases her argument that felony disenfranchisement laws violate the Previous Condition of Servitude Clause. I am compelled to agree. Consider the interpretation provided supra:

A previous condition of servitude is any prior status in which a person or class, subject to the power, control, dominion, or authority of another, was deprived of the liberty shared by others in a free society, to make decisions about their course of action or way of life.^[179]

Following the logic of the definition, if a state law denies a person of the right to vote because that person was previously subject to the power, control, dominion, or authority of another, and was materially deprived of the liberty shared by others in a free society, it has run afoul of the Fifteenth Amendment. Permanent felony disenfranchisement laws deny voting rights solely due to a person’s prior felony conviction. Felony convictions subject criminal defendants to a materially subservient status. It follows then, at least textually, that felony convictions are “conditions of servitude” that cannot be used as a basis to deny the franchise under the Fifteenth Amendment. Here’s why:

A person adjudged guilty of a felony offense is, within a matter of seconds, made subject to the power, control, dominion, and authority of the state in which they were convicted.^[180] Before a sentence is even imposed, a defendant may be held in confinement or even subjected to travel restrictions.^[181] Moreover, as discussed supra, such a conviction can be accompanied by a range of sentences including, but not limited to:

• Compliance programs that require control or supervision of defendants within their communities;

• economic sanctions which may include fines and mandatory community service;

• acknowledgment sanctions which may require a public communication about a defendant’s crime;

• intermittent confinement at a local facility or a defendant’s home;

• and total confinement in a federal or state prison.^[182]

Take a compliance program, or probation, for instance. This sentence is not a mere “get out of jail free” card. It involves a level of state control and supervision that may at times include monitoring, regular check-ins with a probation officer, and restrictions, which may include curfews and required abstinence from certain drugs and alcohol.^[183] Consider also incarceration. It certainly takes no lengthy explanation for one to know that in prison, inmates lose a substantial amount of liberties.^[184] This includes losing the ability to control one’s activities,^[185] the ability to choose who to live with,^[186] the freedom of movement, and even those liberties that would otherwise be protected by the Constitution of the United States.^[187] Whatever the case, what unites all persons convicted of a felony is their subjection to the authority of an adjudicator who may legally impose certain constraints on their liberty.^[188] This power of the state to restrain one’s liberty in such a meaningful way is only activated upon a defendant’s conviction.^[189]

A short hypothetical illustrates this point clearly. Imagine, for example, that two defendants stand in a joint trial for a felony charge: robbery. Defendant A is found guilty by a jury of his peers. Despite all the evidence pointing to the contrary, Defendant B is ultimately found not guilty by the same jury. At that moment, the only thing permitting the court to legally constrain Defendant A’s liberty is his conviction. The two defendants, who only minutes ago, shared the same rights and privileges of citizenship, are thus instantaneously situated in differing statuses. One person, no longer a defendant, is free to continue living his life as he had prior to being charged. The other is forced to live in a new subservient reality, legally constrained in his ability to make decisions about his course of actions and way of life.

Another important point is the fact that felony convictions are, by design, intertwined with their associated sentences. As the definition of “conviction” makes clear, a formal adjudication of guilt instantaneously places a defendant in a status.^[190] A defendant remains in this convicted status until they have served out the terms of their sentence. Common parlance confirms this understanding, as it was once common to refer to people who have completed their sentences as “ex-cons.” States with disenfranchisement provisions understand this, too. For example, in both Florida and Virginia, no person can petition the states’ governors for the restoration of their voting rights following a felony conviction until they have completed all the terms of their sentence.^[191] This further lends credence to the point that a conviction is a status with a firm start date and end date.

In opposition, the State contends that Petitioner cannot prove that its felony disenfranchisement law denies people the right to vote because of the restraint on their liberties associated with a felony conviction. Rather, according to the State, the law serves to disenfranchise people because they have participated in a crime deemed worthy of the penalty. This argument is unpersuasive simply because that is not how the State’s disenfranchisement provision operates. Defendants are not disenfranchised because they have participated or engaged in a particular crime. If that were the case, felony disenfranchisement laws would read “any person who has participated in a felony” instead of “any person convicted of a felony.” Defendants rather are disenfranchised solely because they were adjudicated guilty of a felony. The process of convicting a person such that the state may exercise authority over their liberty is the crux of the disenfranchisement scheme. The State’s argument suffers a severe blow by the mere fact that its own laws authorize courts to “withhold adjudication” by not formally convicting a defendant of a felony, even where their actions amounted to one. However, defendants who receive a “withhold of adjudication” from courts are not disqualified from voting because they were never formally convicted of a felony.^[192] As we have determined, only upon a conviction can a felony disenfranchisement provision come into operation against a defendant.^[193] It appears then, at least on a textual basis, that a felony conviction logically falls within the definition of “condition of servitude.” But constitutional interpretation involves more than a textual or logical fit. It also requires an acknowledgment of the history and values that may be embodied within the language of the provision.^[194] As former Associate Justice Stephen Breyer opined, “[o]f the many different tools that judges can use in a difficult case to interpret or to apply a constitutional provision, the basic values that underlie the provision are important. Reference to, and an understanding of, those values is particularly important when there is little but an ambiguous text and perhaps conflicting precedent to which the judge can otherwise turn.”^[195] It is with these additional considerations in mind that I base my conclusion.

VI. CONCLUSION

The Reconstruction Congresses that authored the Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution had a noble vision in mind. They envisioned a new nation fully recovered from a war that threatened to upend its young experiment in democracy. They envisioned a nation and crafted constitutional provisions that would rectify its original sin of slavery. However, in doing so, they were intentional to continue in the tradition of constitutional development by casting these provisions in fundamental terms that would address issues beyond the principal concerns of the time.^[196] As the history discussed above revealed, Congress remained silent on the issue of state criminal disenfranchisement laws for much of the nineteenth century.^[197] It was privy to the fact that states enacted broader disenfranchisement provisions as more people gained access to the franchise.^[198] And yet, Congress took no action until it became abundantly clear that the practice of disenfranchisement could be used as a tool to undermine the values undergirding Reconstruction.^[199] Disenfranchisement threatened to stand in the way of Congress’s hopes to build a new functioning multiracial democracy. So, Congress acted. It enacted legislation that limited the ability of Southern states to enact broad disenfranchisement provisions, based on the active concern that such provisions would disproportionately harm Black voters.^[200] Realizing that legislation was not enough, Congress took the extraordinary step of amending the Federal Constitution to prohibit states from developing schemes that would undermine the rights of Black voters.^[201] Although Congress went to great lengths to protect Black voters from disenfranchisement schemes, it was fully aware that the racial dynamics of the country were so entrenched that states would likely develop new, creative schemes to deny the franchise to Black voters.^[202] Schemes that would be racially neutral but written in such a way as to always deny the citizenship of Black Americans. Constitution-making was in order. The Previous Condition of Servitude Clause was the answer. With a sense of remarkable foresight, Congress authored an amendment containing fundamental language that would protect voters beyond the principal evil of slavery. The clause was birthed from the idea that the nation needed a flexible rule of suffrage.^[203] One that could be construed by courts to strike down state legislative schemes that would turn people into perpetual second-class citizens.^[204]

As previously discussed supra, some Southern states were quick to ignore Congress’s legislative command that disenfranchisement provisions be limited to felonies at common law.^[205] Instead, those states enacted felony disenfranchisement provisions, like the one being challenged here today, that permitted denying the right to vote for people convicted of any crime the state enumerated to be a felony.^[206] It is because these states enacted disenfranchisement provisions that flew in the face of Congress’s concerns that the Previous Condition of Servitude Clause should be interpreted to prohibit their use. The value judgment the Reconstruction Congress’s made about felony disenfranchisement has been hindered in two ways. First, the principal concern of protecting Black voters from the disproportionate harm felony disenfranchisement would impose has gone unresolved. Today, it is estimated that one in twenty-two Black Americans are disenfranchised—a rate that is three times higher than that of non-Black Americans.^[207] Second, as mentioned, states have enacted disenfranchisement provisions far beyond the narrowing class of crimes that had historically been deemed justified for imposing such a penalty.^[208] The ability of states to thus disenfranchise in consequence of these broad classes of felonies has created a fractured democracy. Returning Citizens who have otherwise paid their debt to society are consigned to a permanent second-class citizenship in which they are permanently punished for past mistakes. This fractured democracy violates the foundational principle of justice that every person has the right to be tried by a jury of their peers, and that once they have paid their debt, they can move on with becoming productive members of society.

Accordingly, it would be consistent with the values and the purposes of the Fifteenth Amendment for this Court to find that “previous conditions of servitude” extends to felony convictions; thereby proscribing felony disenfranchisement. If the framers of the Fifteenth Amendment were willing to use legislation to fully proscribe felony disenfranchisement in 1867, surely, they would have agreed that the constitutional amendment charged with protecting the Black vote should be interpreted to proscribe the practice at a time when so many crimes are considered felonious. In fact, their insistence upon authoring a flexible rule of suffrage indicates that they expected it to be reserved for such a time as this. A time when states now exercise their lawmaking authority in such a way that creates a hierarchy of citizenship contrary to the Reconstruction Congress’s noble vision of a thriving democracy.

The Previous Condition of Servitude Clause was authored to serve as a flexible, race-neutral protection against states and their tendency to disenfranchise marginalized groups of people deemed unworthy of exercising the elective franchise. Its text, history, traditional understanding, and purpose thus all support an interpretation today that would eliminate the second-class citizenship that permanent felony disenfranchisement imposes on Returning Citizens. I look forward to revisiting this question when a majority of this Court is ready to breathe new life into the Fifteenth Amendment and restore the promises of democracy its framers envisioned. For these reasons, I respectfully dissent.

---

1. See, e.g., Harvard Law Review, VI. One Person, No Vote: The Laws of Felon Disenfranchisement, 115 Harv. L. Rev. 1939 (2002) (“The United States has a long history of denying convicted felons the right to vote.”); see also Farrakhan v. Gregoire, 623 F.3d 990, 993 (9th Cir. 2010) (“[felony disenfranchisement] laws have a long history in the United States. . . . [t]hese laws predate the Jim Crow era . . . .”).

2. See infra Part III.A.

3. Id.

4. See infra Part III.A note 35.

5. See Johnson v. Governor of State of Fla., 405 F.3d 1214, 1218 (11th Cir. 2005) (“Florida’s policy of criminal disenfranchisement has a long history, tracing back well before the Civil War.”).

6. Conn. Const. of 1818, art. VI § 3.

7. See Alan Flurry, Study estimates U.S. population with felony convictions, UGA Today (Oct. 1, 2017), https://news.uga.edu/total-us-population-with-felony-convictions/ [https://perma.cc/XQ8C-8T3R].

8. Christopher Uggen et al., Locked Out 2024: Four Million Denied Voting Rights Due to a Felony Conviction, The Sentencing Project (Oct. 10, 2024), https://www.sentencingproject.org/reports/locked-out-2024-four-million-denied-voting-rights-due-to-a-felony-conviction/ [https://perma.cc/TSC9-A6AR].

9. Press Release, The Sentencing Project, New Sentencing Project Report Reveals 4 Million Americans Denied Voting Rights Due to Felony Convictions (Oct. 10, 2024), https://www.sentencingproject.org/press-releases/new-sentencing-project-report-reveals-4-million-americans-denied-voting-rights-due-to-felony-convictions/ [https://perma.cc/J4KP-3XT6].

10. The words “paid their debt” as used here are used colloquially to describe the process of serving out one’s sentence imposed by a court of law. They are not used to reference Florida legislation, Senate Bill 7066, which required former felons to pay all “restitution, fines, fees, and costs” associated with their sentence before being permitted to register to vote. See Jones v. Governor of Fla., 975 F.3d 1016, 1026, 1028 (11th Cir. 2020) (upholding Senate Bill 7066 as constitutional under the Equal Protection Clause, the Twenty Fourth Amendment, and the Due Process Clause of the Fourteenth Amendment).

11. Disenfranchisement Laws, Brennan Ctr. for Just., https://www.brennancenter.org/issues/ensure-every-american-can-vote/voting-rights-restoration/disenfranchisement-laws [https://perma.cc/U4FG-GTQB] (last visited Sep. 1, 2025). These states include: Florida, Alabama, Mississippi, Tennessee, Kentucky, Virginia, Delaware, Arizona, Wyoming, and Iowa.

12. Rachel L. Swarns, Man convicted of bigamy, Tampa Bay Times (Aug. 28, 1990), https://www.tampabay.com/archive/1990/08/28/man-convicted-of-bigamy/ [https://perma.cc/2J3W-74QD]. It bears noting that states in the South were known to enumerate bigamy as a crime resulting in a person’s disenfranchisement because of the belief that Black men were more likely to be convicted of it. This is likely because during slavery, the marriages of many enslaved people were not legally recognized and many couples were separated by being sold to other slave owners. In some cases, if a formerly enslaved person then remarried, they could be convicted of bigamy due to their first unrecognized or separated marriage. See Katherine M. Franke, Becoming a Citizen: Reconstruction Era Regulation of African American Marriages, 11 Yale J.L. & Human. 251, 283–84 (1999).

13. Fla. Stat. § 826.01 (2024).

14. Swarns, supra note 12.

15. Fla. Stat. § 98.0751 (2025); Fla. Const. art. VI § 4 (amended 1968).

16. Accordingly, if a person is convicted of a felony but is not sentenced with incarceration, they will not lose their right to vote. New York Courts, Find Help You Need to Represent Yourself in NY Courts: Voting, New York State Unified Court Sys., https://www.nycourts.gov/courthelp/criminal/votingConsequences.shtml [https://perma.cc/P9BM-KGS6] (last visited Sep. 1, 2025). The hush money trial of Donald Trump serves as a high-profile example. Although Trump was convicted of 34 felony counts, he was not sentenced to incarceration. Under the law of the state where he resided at the time of his conviction, Florida, Trump would not lose his right to vote unless he would lose it under the laws of the state where he was convicted. Because New York law preserved his right to vote in the absence of incarceration, it was also preserved in Florida. This outcome was particularly interesting in light of the fact that had Trump been convicted of 34 felonies in Florida, he would have lost his right to vote regardless of whether he was incarcerated. See Patrick Berry, Can Trump Vote Now That he Has Felony Convictions?, Brennan Ctr. For Just. (July 29, 2024), https://www.brennancenter.org/our-work/research-reports/can-trump-vote-now-he-has-felony-convictions [https://perma.cc/2J2K-CEWG].

17. Id.

18. U.S. Const. amend. XV.

19. As discussed infra Part V.B, the word “conviction” is both a verb and an adjective. In other words, the word is defined by both the moment in which a criminal defendant is pronounced guilty of a felony and the status the defendant takes on while they serve out their sentence. For purposes of felony disenfranchisement laws, both parts of speech are essential to the examination of the laws’ constitutionality.

20. In my dissent, I refer to a “Petitioner” and a “State.” Neither term describes an actual person or state but is used generally to reflect the common experience of Returning Citizens and the common policies of states that still practice felony disenfranchisement.

21. Sup. Ct. R. 10(c) (“The following, although neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers . . . a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court.”).

22. See, e.g., 18 U.S.C. § 3143(a)(1):

    Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and who is awaiting imposition or execution of sentence, other than a person for whom the applicable guideline promulgated pursuant to 28 U.S.C. 994 does not recommend a term of imprisonment, be detained, unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c).

23. American Bar Association, Criminal Justice Standards: Sentencing, Standard 18.2-2, A.B.A. Crim. Just. Section, https://www.americanbar.org/groups/criminal_justice/resources/standards/sentencing/ [https://perma.cc/CPK9-WPPB] (last visited Mar. 10, 2025).

24. Id.

25. Id.

26. Richardson v. Ramirez, 418 U.S. 24, 56 (1974).

27. Id. at 53.

28. See infra note 35.

29. N.Y. Const. art. XIII, § 1 (1777).

30. Id.

31. See Alec C. Ewald, “Civil Death”: The Ideological Paradox of Criminal Disenfranchisement Laws in the United States, 2002 Wis. L. Rev. 1045, 1061 (2002) (recognizing the adoption of English common law through disenfranchisement statutes in the Plymouth Colony, Massachusetts Bay Colony, Maryland Colony, Connecticut Colony, and Rhode Island Colony.).

32. See Paul Finkelman, Slavery in the Courtroom 4 (1985) (“From the first statutes concerning slavery in the English colonies one [could] deduce the system’s unplanned nature. There [were] no early Virginia or Maryland laws creating slavery per se. Rather, there [were] laws acknowledging that slavery exist[ed].”)

33. N.J. Const. of 1776 art. XXII.

34. Id. at art. IV, § 1 (“All inhabitants of this Colony, of full age, who are worth fifty pounds proclamation money, clear estate in the same, and have resided within the county in which they claim a vote for twelve months immediately preceding the election, shall be entitled to vote . . .”)

35. Lex Posterior Derogat Priori, Black’s Law Dictionary (11th ed. 2019) (“A later law prevails over an earlier one” The principle that a later statute negates the effect of a prior one if the later statute expressly repeals, or is obviously repugnant to, the earlier law); See e.g., Albert Stillman Batchellor, Early State Papers of New Hampshire: Including the Constituion of 1784, Journals of the Senate and House of Representatives, and Records of the President and Council from June 1784 to June 1787, vol. XX, 16–17 (Machester: John B. Clark, Public Printer 1891). According to art. II § 3 of New Hampshire’s 1784 Constitution:

    Every male inhabitant of each town and parish with town privileges in the several counties in this state, of twenty-one years of age and upwards, paying for himself a poll tax, shall have a right at the annual or other meetings of the inhabitants of said towns and parishes . . . to vote in the town or parish wherein he dwells, for the senators in the county or district whereof he is a member.

    Id.; see also S.C. Const. art. I § 4 (amended 1895). According to South Carolina’s pre-amended constitution:

    [(1)] Every free white man, [(2)] of the age of twenty-one years, [(3)] being a citizen of this State, [(4)] and having resided therein two years previous to the day of election, [(5)] and who hath a freehold of fifty acres of land or a town lot, [(6)] of which he hath been legally seized and possessed at least six months before such election, or, not having such freehold or town lot, hath been a resident in the election district in which he offers to give his vote six months before the said election, [(7)] and hath paid a tax the preceding year of three shillings sterling towards the support of this government, shall have a right to vote for a member or members to serve in either branch of the legislature for the election district in which he holds such property or is so resident.

    Id. (numerals added).

36. Mass. Const. of 1780 ch. VI art. II (“And no person shall ever be admitted to hold a seat in the legislature, or any office of trust or importance under the government of this commonwealth, who shall, in the due course of law, have been convicted of bribery or corruption in obtaining an election or appointment.”); see also Md. Const. of 1776 art. LIV. Article LIV states:

    That if any person shall give any bribe, present, or reward, or any promise, or any security for the payment or delivery of any money, or any other thing, to obtain or procure a vote to be Governor, Senator, Delegate to Congress or Assembly, member of the Council, or Judge, or to be appointed to any of the said offices, or to any office of profit or trust, now created or hereafter to be created in this State-the person giving, and the person receiving the same (on conviction in a court of law) shall be forever disqualified to hold any office of trust or profit in this State.

    Id.

37. Ewald, supra note 31, at 1059–61 (describing criminal disenfranchisement practices in Ancient Greece, Rome, Renaissance Europe, and England. Noting further that early European criminal disenfranchisement “seem[ed] to have been limited to very serious crimes, and were implemented only upon judicial pronouncement in individual cases.”).

38. The Founders’ Library, Antebellum Era, The Const. Ctr., https://constitutioncenter.org/the-constitution/historic-document-library/time-period/antebellum-era [https://perma.cc/Y4TA-R8UV] (last visited Apr. 2, 2025).

39. Id.

40. Vt. Const. ch. II, § 18 (1786).

41. Id. (“You solemnly swear, (or affirm) that whenever you give your vote or suffrage, touching any matter that concerns the State of Vermont, you will do it so as in your conscience you shall judge [what] will most conduce to the best good of the same, as established by the Constitution, without fear or favour of any man.”).

42. Id. at § 31.

43. Today, Vermont has repealed even the bribery disqualification and permits registration to vote regardless of being convicted of a crime. Vt. Stat. Ann. tit. 28, § 807(a) (“Notwithstanding any other provision of law, a person who is convicted of a crime shall retain the right to vote by early voter absentee ballot in a primary or general election at the person’s last voluntary residence during the term of the person’s commitment under a sentence of confinement provided the person otherwise fulfills all voting requirements.”). It’s friendly posture towards disenfranchisement is likely not a coincidence as its population is 93.6 percent white. U.S. Census Bureau, QuickFacts: Vermont, https://www.census.gov/quickfacts/fact/table/VT/PST045224 [https://perma.cc/6MKF-DMQN] (last visited Apr. 2, 2025). Consistent with my secondary thesis, a state with a predominantly white homogenous population would likely be disincentivized to impose harsh restrictions on the right to vote because there are very few “undesirables” in the state to be prevented from voting in the first place.

44. Ala. Const. art. VI, § 5 (amended 1901).

45. U.S. Const. art. II, § 4.

46. See supra Part I; Robert G. Natelson, New Evidence on the Constitution’s Impeachment Standard: “high . . . Misdemeanors” Means Serious Crimes, 21 Federalist Soc. Rev. 24, 29 (2020) (“‘High misdemeanors’ is a higher standard than abuse of power, violation of the public trust, or disregard of the national interest—even though, of course, criminal behavior may breach those standards as well.”).

47. Miss. Const. of 1817, art. VI, § 5 (“Laws shall be made to exclude from office, and from suffrage, those who shall thereafter be convicted of bribery, perjury, forgery, or other high crimes or misdemeanors.”); see also La. Const. of 1812, art. VI, § 4 (same).

48. Fla. Const. of 1839, art. VI, § 13 (same).

49. Tex. Const. of 1845, art. VII, § 4 (same).

50. Cal. Const. of 1849, art. II, § 5.

51. Ark. Const. of 1836, art. IV, § 12.

52. Richard Burn & John Burn, New Law Dictionary: Intended For General Use as Well as For Gentleman of the Profession 383 (1792) available at https://babel.hathitrust.org/cgi/pt?id=njp.32101071952160&seq=6 [https://perma.cc/ESF5-M254].

53. Id. at 302.

54. John Bouvier, A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union; with References to The Civil and Other Systems of Foreign Law 500 (1839) available at https://babel.hathitrust.org/cgi/pt?id=mdp.35112104912631&seq=5 [https://perma.cc/MZ8W-JQH3].

55. Id.

56. Id. at 404. According to Blackstone’s Commentaries of the Laws of England:

    [T]he only adequate definition of felony seems to be that which is before laid down; viz. an offence which occasions a total forfeiture of either lands, or goods or both, at the common law; and to which capital or other punishment may be superadded, according to the degree of guilt.

    4 William Blackstone, Commentaries *95. At common law, felonies were confined to an exhaustive list that included: felonious homicide, robbery, rape, treason, mayhem, sodomy, arson, burglary, and larceny. See generally id. at *176–230 (explaining the historial roots of the various felonies at common law).

57. The Ramirez Court relied on criminal disenfranchisement language in state constitutions at the time of the Fourteenth Amendment’s ratification to claim:

    Further light is shed on the understanding of those who framed and ratified the Fourteenth Amendment, and thus on the meaning of [§] 2, by the fact that at the time of the adoption of the Amendment, 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.

    Ramirez, 418 U.S. at 48.

58. Al Jazeera, Who got the right to vote when? A history of voting rights in America, https://interactive.aljazeera.com/aje/2016/us-elections-2016-who-can-vote/index.html [https://perma.cc/EXC9-YG3P] (last visited Mar. 31, 2025).

59. N.J. Const. art. IV § 1 (amended 1844).

60. N.J. Const. art II § 1 (amended 1947).

61. Md. Const. art. II (amended 1851).

62. Md. Const. art. I § 2 (amended 1864).

63. Va. Const. (amended 1851) (naming “freeholders” as qualified voters) https://rosetta.virginiamemory.com/delivery/DeliveryManagerServlet?​dps_pid=​IE2​924​481&_ga​=2.26​620​853.941​380​02​7.174​34​347​86-384​70​99​71.1743​43​478​6 [https://perma.cc/XN9Q-9W46]; Va. Const. art III. § 1 (amended 1869) https://rosetta.virginiamemory.com/delivery/DeliveryManagerServlet?​dps_​pid=​IE3​7982​90&_ga=​2.68​366​617.94​138​00​27.174​34​347​86-38​470​99​71.17​434​34​786 [https://perma.cc/LHP5-JAKP].

64. Kansas Statehood, Kansas Regents, https://www.kansasregents.gov/resources/Civics_Test_Study_Guide.pdf [https://perma.cc/X76G-XQLQ] (last visited Sep. 1, 2025).

65. Kan. Const. art. V § 2 (amended 1867).

66. Dred Scott v. Sandford, 60 U.S. 393, 422 (1857).

67. Id.

68. Id.

69. Id. at 404.

70. Dr. Roberta Alexander, Dred Scott: The Decision That Sparked a Civil War, 34 N. Ky. L. Rev. 63 (2007).

71. South Carolina Declaration of Succession, Nat’l Const. Ctr. (last visited Apr. 2, 2025), https://constitutioncenter.org/the-constitution/historic-document-library/detail/south-carolina-declaration-of-secession-1860 [https://perma.cc/4S9N-8UPM].

72. Id.

73. Philip Dray, Capitol Men 10–14 (2008).

74. Id. at 10.

75. Id. at 16.

76. Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877 8 (Henry Steele Commager & Richard B. Harris eds., HarperCollins Publishers Inc., Updated ed., 2014) (emphasis in original).

77. Civil Rights Act of 1866, ch. 31, 14 Stat. 27 (codified at 42 U.S.C. §§ 1981–1982).

78. Whipping and Selling American Citizens, Harper’s Weekly (N.Y.), Jan. 12, 1867, at 18–19, available at https://archive.org/details/sim_harpers-weekly_1867-01-12_11_524/mode/1up?view=theater [https://perma.cc/ZVU7-4QRC].

79. Id. at 18.

80. Id.

81. Id.

82. Cong. Globe, 39th Cong., 2d Sess. 324 (1867) (statement of Rep. Thaddeus Stevens).

83. Id.

84. Id.

85. Cong. Globe, 39th Cong., 2d Sess. 503 (1867) (statement of Rep. John Bingham).

86. Id. at 504.

87. Cong. Globe, 39th Cong., 2d Sess. 61–62 (1867) (statement of Rep. A. H. Ward).

88. Cong. Globe, 39th Cong., 2d Sess. 76 (1867) (statement of Rep. Jehu Baker).

89. Cong. Globe, 39th Cong., 2d Sess. 815 (1867) (statement of Rep. Thomas Eliot).

90. Id. at 816 (statement of Rep. Thaddeus Stevens).

91. Id. (statement of Rep. Thomas Eliot).

92. Reconstruction Act of 1867, ch. 153, 14 Stat. 428–29, available at https://constitutioncenter.org/the-constitution/historic-document-library/detail/reconstruction-acts-1867-1868 [https://perma.cc/GXR5-DB7M].

93. See Blackstone, supra note 56.

94. Cong. Globe, 39th Cong., 2d Sess. 1328 (1867) (exchange between Reps. Nathaniel Banks and John Bingham).

95. The state constitution produced by South Carolina’s constitutional convention was truly a biproduct of its esteemed membership. The constitution went further than the Reconstruction Act of 1867 by providing that “[n]o person shall be disfranchised for felony, or other crimes committed while such person was a slave.” S.C. Const. art. 8 § 12 (amended 1895). This convention, composed of 76 Black and 48 white delegates, boasted the talents and contributions of Black trailblazers including: Richard “Daddy” Cain, Robert Smalls, Robert C. De Large, Alonzo Ransier, and Robert Brown Elliot. Each one of these men went on to represent South Carolina as among the first Black members of the United States House of Representatives. Dray, supra note 73, at 42–43. It is no surprise that a convention made up of majority-Black delegates would ban felony disenfranchisement, fully understanding its use as a tool to hinder the Black elective franchise.

96. States like Florida were quick to embrace the broad felony disenfranchisement language employed by states like Kansas in 1861. Following its 1868 constitutional convention, Florida ratified a constitution that provided “[n]o person under guardianship, non compos mentis, or insane, shall be qualified to vote it any election; nor shall any person convicted of felony be qualified to vote at any election unless restored to civil rights.” Fla. Const. art. 14 § 2 (amended 1885); This was a notable departure from the language embodied in its 1865 constitution which extended the franchise only to “every free white male person” and only permitted the disenfranchisement of people convicted of “bribery, perjury, or other infamous crime.” Fla. Const. art. VI §§ 1, 2 (amended 1868).

    Following the trend of states employing stricter felony disenfranchisement laws as more citizens gained the right to vote, it comes as no surprise that this language change was intentional. The journal of the proceedings of Florida’s 1868 constitutional convention show that the delegates initially adopted a provision that provided “[n]o idiot, or insane person, or person convicted of infamous crime, shall be entitled to the privileges of an elector except when such convicted person shall have been pardoned in the manner prescribed by this Constitution.” State of Florida, Journal of the Proceedings of the Constitutional Convention 1868 of the State of Florida 89 (1868), available at https://njlaw.rutgers.edu/cgi-bin/constitution.cgi?funct=1&document=FL007&state=FL&document=FL007&page=0064&zoom=120 [https://perma.cc/483C-WTBP].

    In effect, this provision modified the 1865 provision only by permitting the disenfranchisement of people with certain mental disabilities. However, a last-minute amendment was offered to reconsider this provision in favor of the final version that permitted the disenfranchisement of people convicted of any felony. Id. at 124–25. This was the final act the convention of 1868 ever took. This version was adopted by a vote of 26 in favor to 15 opposed. Id. at 126. Among the fifteen in opposition was future United States Representative, Josiah T. Walls, the first Black congressman elected from Florida. Id.

97. Ramirez, 418 U.S. at 48.

98. See supra Part III.B.3

99. Cong. Globe, 39th Cong., 2d Sess. 503 (1867) (statement of Rep. John Bingham).

100. Id. at 504.

101. People v. DeStefano, 64 Ill. App. 2d 389 (Ill. App. Ct. 1965).

102. Id. at 392.

103. Id. at 396.

104. Id. at 397; Lassiter v. Northampton Cnty. Bd. of Elections, 360 U.S. 45, 51 (1959).

105. Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 363 (2006) (citing Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 399–400 (1821)).

106. See Smith v. U.S. Cong., No. 18-CV-988-PP, 2019 WL 6037582, at *6 (E.D. Wis. Nov. 14, 2019), aff’d, No. 20-2283, 2021 WL 3642340 (7th Cir. Mar. 17, 2021); see also Malnes v. Arizona, 705 F. App’x 499, 500–01 (9th Cir. 2017) (affirming the district court’s dismissal of plaintiff’s Fifteenth Amendment “previous condition of servitude” claim based on an interpretation of the Thirteenth Amendment’s Exception Clause).

107. Laurence H. Tribe & Michael C. Dorf, On Reading the Constitution 20 (Harv. Univ. Press 1991) (“[R]eading [the Constitution] by dis-integration . . . mean[s] approaching the Constitution in ways that ignore the salient fact that its parts are linked to a whole—that it is a Constitution, and not merely an unconnected bunch of separate clauses and provisions with separate histories that must be interpreted.” (alterations in original)).

108. Smith, 2019 WL 6037582, at *6, aff’d 2021 WL 3642340.

109. Id.

110. The Reconstruction Act of 1867, ch. 153, 14 Stat. 428–29 (1867) (emphasis added). Available at https://constitutioncenter.org/the-constitution/historic-document-library/detail/reconstruction-acts-1867-1868 [https://perma.cc/DGK9-X648].

111. The Reconstruction Act of 1867-1868 required Congress to approve the state constitutions of former Confederate States before their reentry into the Union. Some of these state constitutions included felony disenfranchisement provisions. The argument that Congress therefore endorsed modern felony disenfranchisement because it approved of these state constitutions is unpersuasive. If this dissent’s central premise is correct, then Congress approved of these state constitutions with an understanding that felony disenfranchisement, while permissible, could not be permanent. It confirmed this understanding and removed all criminal exceptions with its framing of the Fifteenth Amendment.

112. See Marc Edward Rivera & Shimica D. Gaskins, Previous Conditions of Servitude: A Fifteenth Amendment Challenge to Ex-Felon Disenfranchisement Laws, 1 Geo. J. L. & Mod. Critical Race Persp. 153, 158 (2009) (“Case law further suggests that the meaning of ‘condition of servitude’ should be derived from the Thirteenth Amendment’s conception of involuntary servitude”); see also Dori Elizabeth Martin, Lifting the Fog: Ending Felony Disenfranchisement in Virginia, 47 U. Rich. L. Rev. 471, 481 (2012) (“The language of the Thirteenth Amendment gives further credence to an interpretation of the phrase ‘previous condition of servitude’ that also applies to former prisoners.”)

113. Rivera & Gaskins, supra note 112, at 158–59.

114. United States v. Kozminski, 487 U.S. 931, 948 (1988).

115. Brian C. Kalt, The Exclusion of Felons From Jury Service, 53 Am. U. L. Rev. 65, 96 (2003).

116. Daniel R. Correa, The Slavery Clause and Criminal Disenfranchisement: How the Thirteenth Amendment Informs the Debate on Crime-Based Franchise Restrictions, 53 Loy. U. Chi. L.J. 89, 153 (2021) (emphasis added).

117. U.S. Const. amend. XV, § 1 (emphasis added).

118. Shelby Cnty., Ala. v. Holder, 570 U.S. 529, 536 (2013).

119. U.S. Const. amend. XIII, § 1.

120. District of Columbia v. Heller, 554 U.S. 570, 576 (2008) (quoting U.S. v. Sprague, 282 U.S. 716, 731 (1931)).

121. Noah Webster, An American Dictionary of he English Language 1035 (Chauncey A. Goodrich & Noah Porter, eds., G.&C. Merriam, State Street 1878).

122. Id. at 269.

123. Id. at 1207.

124. Id. at 817.

125. Id. at 1315.

126. Previous, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/previous [https://perma.cc/487N-S3E8] (last visited Mar. 17, 2025).

127. Condition, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/condition [https://perma.cc/87TE-KEBD ] (last visited Mar. 17, 2025).

128. Servitude, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/servitude [https://perma.cc/FC8Z-YBLE] (last visited Mar. 17, 2025).

129. The Slaughter-House Cases, 83 U.S. 36, 83 (1872) (Field, J., dissenting).

130. Id. at 89–90 (Field, J., dissenting).

131. See generally The Slaughter-House Cases, 83 U.S. at 83 (Field, J., dissenting) (discussing whether a state law requiring butchers to use a particular slaughterhouse constituded “involuntary servitude”).

132. Id. at 90–91 (emphasis added).

133. U.S. Const. amend. XIII, § 1.

134. John Mabry Mathews, Legislative and Judicial History of the Fifteenth Amendment 22 (1909).

135. Id.

136. Id. at 23.

137. Id.

138. Id. at 25.

139. Id.

140. Id. at 25–26.

141. Id. at 26.

142. Id. at 28.

143. Id. at 28–29.

144. Id. at 29.

145. Id.

146. Id.

147. Id. at 29–30.

148. Id. at 30.

149. Id. at 32.

150. Id.

151. Id. at 33.

152. Id.

153. Id. at 34.

154. Id.

155. Id. at 23.

156. Id. at 34.

157. Id.

158. Cong. Globe, 40th Cong., 3d Sess. 1317 (1869) (statement of Sen. Stewart).

159. Rice v. Cayetano, 528 U.S. 495, 512 (2000).

160. Cong. Globe, 40th Cong., 3d Sess. 1317 (1869) (statement of Senator William M. Stewart of Nevada) (“Again, he says, suppose [states] should undertake to exclude them because they were descended from slaves. No honest judge would give this amendment such a construction as that.”).

161. Under the broad protections of the Amendment, a state legislature in 1950 would have likely been precluded from enacting a facially neutral law seeking to deny the right to vote to “any person who has been subjected to military internment within the United States.” While such a law would be an obvious attempt to disenfranchise the victims of Japanese internment and arguably void under the Fourteenth Amendment’s Equal Protection Clause, an equally valid claim could be made under the Fifteenth Amendment’s Previous Condition of Servitude Clause. See Korematsu v. United States, 323 U.S. 214, 234–35 (1944) (Murphy, J., dissenting) (“Civilian Exclusion Order No. 34, banishing from a prescribed area of the Pacific Coast ‘all persons of Japanese ancestry,’ . . . further deprive[d] these individuals of their constitutional rights to live and work where they [would], to establish a home where they [would choose], and to move about freely.”).

     It may also be worth exploring, at a later time, the applicability of the clause to a future possible situation where states begin disenfranchising immigrants who may have lacked legal status in the past but were offered a pathway to citizenship as a result of immigration reform. I do not have the answer to that question but I believe it is one that voting rights experts and immigrant rights activists ought to be prepared to address.

162. See supra Part III.

163. Id.

164. Id. at Part III.C.

165. See generally Rice, 528 U.S. at 512 (noting that the terms are fundamental in purpose and self-executing in operation).

166. Fla. Const. art. VI § 4 as amended (1968) (emphasis added).

167. Ky. Const. § 145 (1955) (emphasis added).

168. Va. Const. art. II § 1 (1971) (emphasis added).

169. See supra Part III.

170. Id.

171. Transcript of Oral Argument at 52, 54, Lange v. Cal., 594 U.S. 295 (2021) (No. 20-18).

172. Id. (alternations in original).

173. Fla. Stat. § 815.06 (2024).

174. Fla. Stat. § 893.149 (2024).

175. Va. Code § 18.2-272 (2024).

176. Press Release, U.S. Attorney’s Office Southern District of Florida, Poachers of 93 Protected Sea Turtle Eggs Sentenced to Prison (Mar. 11, 2023), https://www.justice.gov/usao-sdfl/pr/poachers-93-protected-sea-turtle-eggs-sentenced-prison [https://perma.cc/Y7FM-SYFG].

177. Conviction, Black’s Law Dictionary (12th ed. 2024).

178. See Penalty Phase, Black’s Law Dictionary (12th ed. 2024) (“The part of a criminal trial in which the factfinder determines the punishment for a defendant who has been found guilty. — Also termed sentencing phase.”); see generally Due Process, Black’s Law Dictionary (12th ed. 2024) (“The minimal requirements of notice and a hearing guaranteed by the Due Process Clauses of the 5th and 14th Amendments, [especially] if the deprivation of a significant life, liberty, or property interest may occur.”).

179. See supra Part V.A.4.

180. See supra note 177.

181. See, e.g., 18 U.S.C. § 3143(a)(1).

182. Criminal Justice Standards: Sentencing, Standard 18.2-2, A.B.A. Crim. Just. Section (last visited Mar. 10, 2025), https://www.americanbar.org/groups/criminal_justice/resources/standards/sentencing [https://perma.cc/W28R-CCKN].

183. United States Courts, Post Conviction Supervision (last visited Apr. 1, 2025), https://www.uscourts.gov/about-federal-courts/probation-and-pretrial-services/post-conviction-supervision [https://perma.cc/M49A-SV4N].

184. Overton v. Bazzetta, 539 U.S. 112, 131 (2003) (“Many of the liberties and privileges enjoyed by other citizens must be surrendered by the prisoner. An inmate does not retain rights consistent with proper incarceration.”).

185. See e.g., Fla. Admin. Code Ann. R. 33-502.101.

186. Sandin v. Conner, 515 U.S. 472, 486 (1995) (finding that prisoner’s disciplinary segregation did not create a liberty interest protected by the Due Process Clause).

187. See Hudson v. Palmer, 468 U.S. 517, 526 (1984) (holding that the Fourth Amendment does not proscribe searches and seizures of a prison cell because an inmate has no reasonable expectation of privacy in confinement).

188. See supra note 177.

189. Id.

190. See supra note 178.

191. State of Florida, Off. of Exec. Clemency, Clemency Info. Sheet (2021); see also Commonwealth of Virginia, Restoration of Rights: Are your rights restored? (last visited Apr. 1, 2025), https://www.restore.virginia.gov [https://perma.cc/BFE5-FKU8].

192. See Voting with a Criminal Record in Florida (last visited Aug. 2022), https://www.aclufl.org/app/uploads/drupal/sites/default/files/field_documents/florida_voting_rights_amendment_4_one_pager_august_2022_final.pdf [https://perma.cc/Y3SX-MH43].

193. See supra Part V.B.

194. See Stephen Breyer, Reading the Constitution: Why I Chose Pragmatism, Not Textualism 219 (2024).

195. Id.

196. See generally Rice, 528 U.S. at 512 (noting that the terms would transcend particular controversies which were the immediate impetus for their enactment by prohibiting any provisions which denied or abridged the right to vote based upon one’s race).

197. See generally supra Part III (noting the historical existence of disenfranchisement provisions on the state level).

198. Id.

199. Id. at Part III.C

200. Cf. Carl Schurz, Report on the Condition of the South (1865) (“The only manner in which, in my opinion, the southern people can be induced to grant to the freedman some measure of self-protecting power in the form of suffrage, is to make it a condition precedent to ‘readmission.’”).

201. See supra Part V.A.3.

202. See supra Part III.C.

203. See supra Part V.A.3.

204. Id.

205. See supra note 96.

206. Id.

207. See supra, note 9

208. See supra Part V.B.