Political Illiberalism: The Paradox of Disenfranchisement and the Ambivalences of Rawlsian Justice

Yale Law Journal

Volumn 106, Issue 4, 1997, Pages 1197-1231

  Furman, Jesse ^a  

^a NONE

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[No Author keywords available]

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EID: 0007207580     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797152     Document Type: Article

References (230)

1. FYODOR DOSTOEVSKY, NOTES FROM UNDERGROUND 22-23 (Mirra Ginsburg trans., Bantam Books 1974) (1864).
2. SALMAN RUSHDIE, THE MOOR'S LAST SIGH 297 (1995).
3. Reynolds v. Sims, 377 U.S. 533, 565, 567 (1964).
4. See Richardson v. Ramirez, 418 U.S. 24, 41-56 (1974) (upholding disenfranchisement of felons).
5. See infra note 125. Conservative estimates indicate that there are as many as fifty million convicts in the United States, of whom almost fourteen million have been convicted of a felony. Of these fourteen million citizens, many have lost the right to vote. See Velmer S. Burton, Jr. et al., The Collateral Consequences of a Felony Conviction: A National Study of State Statutes, FED. PROBATION, Sept. 1987, at 52, 52; Andrew L. Shapiro, Note, Challenging Criminal Disenfranchisement Under the Voting Rights Act: A New Strategy, 103 YALE L.J. 537, 540 n.17 (1993) (estimating that there are four million disenfranchised criminals and ex-offenders).
6. See infra note 125. Conservative estimates indicate that there are as many as fifty million convicts in the United States, of whom almost fourteen million have been convicted of a felony. Of these fourteen million citizens, many have lost the right to vote. See Velmer S. Burton, Jr. et al., The Collateral Consequences of a Felony Conviction: A National Study of State Statutes, FED. PROBATION, Sept. 1987, at 52, 52; Andrew L. Shapiro, Note, Challenging Criminal Disenfranchisement Under the Voting Rights Act: A New Strategy, 103 YALE L.J. 537, 540 n.17 (1993) (estimating that there are four million disenfranchised criminals and ex-offenders).
7. See Wesberry v. Sanders, 376 U.S. 1, 17 (1964); see also infra notes 110-24 and accompanying text.
8. See Afroyim v. Rusk, 387 U.S. 253, 267-68 (1967); Trop v. Dulles, 356 U.S. 86, 101-02 (1958) (plurality opinion); see also infra notes 142-46 and accompanying text.
9. Linda R. Hirshman, Is the Original Position Inherently Male-Superior?, 94 COLUM. L. REV. 1860, 1861 (1994) (misquoting Brian Barry, Good for Us, but Not for Them, GUARDIAN (London), Aug. 14, 1993, at 23).
10. Linda R. Hirshman, Is the Original Position Inherently Male-Superior?, 94 COLUM. L. REV. 1860, 1861 (1994) (misquoting Brian Barry, Good for Us, but Not for Them, GUARDIAN (London), Aug. 14, 1993, at 23).
11. See JOHN RAWLS, POLITICAL LIBERALISM (1993) [hereinafter RAWLS, POLITICAL LIBERALISM]; JOHN RAWLS, A THEORY OF JUSTICE (1971) [hereinafter RAWLS, A THEORY OF JUSTICE].
12. See JOHN RAWLS, POLITICAL LIBERALISM (1993) [hereinafter RAWLS, POLITICAL LIBERALISM]; JOHN RAWLS, A THEORY OF JUSTICE (1971) [hereinafter RAWLS, A THEORY OF JUSTICE].
13. RAWLS, A THEORY OF JUSTICE, supra note 9, at 11.
14. I do not mean to suggest, of course, that Rawlsian liberalism is the only version of liberal theory, or even that it is somehow representative of all liberal theories. I focus on Rawls for two reasons. First, his philosophy bears a closer relationship to American liberalism than perhaps any other. See infra notes 13-17 and accompanying text. Second, he places more explicit emphasis on the goal of achieving toleration than many other liberal theorists, see, e.g., RAWLS, POLITICAL LIBERALISM, supra note 9, at 10 ("[P]olitical liberalism applies the principle of toleration to philosophy itself."), so an accusation of intolerance or exclusion against his theory has more significance. All liberal theorists are committed to the principle of toleration in some respect, but "comprehensive" liberals (to use Rawls's term) - like Ronald Dworkin or Robert Nozick - and "perfectionist" liberals - like Joseph Raz - give priority to other values, like "equal concern and respect," see RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 272-78 (1977), the ability to "shap[e one's] life in accordance with some overall plan," see ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 50 (1974), or autonomy, see JOSEPH RAZ, THE MORALITY OF FREEDOM 425 (1986). In doing so, I would argue, these theorists fall prey to even more significant problems of exclusion than does Rawls. For a critique of comprehensive liberalism and perfectionist liberalism along these and other lines, see William A. Galston, Two Concepts of Liberalism, 105 ETHICS 516, 523-24 (1995); Charles Larmore, Political Liberalism, 18 POL. THEORY 339, 342-46 (1990); and Chantal Mouffe, Political Liberalism. Neutrality and the Political, 7 RATIO JURIS 314, 323 (1994). In discussing disenfranchisement in Part II, I expand my analysis beyond Rawls's theory to explore the phenomenon of exclusion in the philosophical traditions of social contract theory and republicanism generally. See infra notes 155-78 and accompanying text.
15. I do not mean to suggest, of course, that Rawlsian liberalism is the only version of liberal theory, or even that it is somehow representative of all liberal theories. I focus on Rawls for two reasons. First, his philosophy bears a closer relationship to American liberalism than perhaps any other. See infra notes 13-17 and accompanying text. Second, he places more explicit emphasis on the goal of achieving toleration than many other liberal theorists, see, e.g., RAWLS, POLITICAL LIBERALISM, supra note 9, at 10 ("[P]olitical liberalism applies the principle of toleration to philosophy itself."), so an accusation of intolerance or exclusion against his theory has more significance. All liberal theorists are committed to the principle of toleration in some respect, but "comprehensive" liberals (to use Rawls's term) - like Ronald Dworkin or Robert Nozick - and "perfectionist" liberals - like Joseph Raz - give priority to other values, like "equal concern and respect," see RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 272-78 (1977), the ability to "shap[e one's] life in accordance with some overall plan," see ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 50 (1974), or autonomy, see JOSEPH RAZ, THE MORALITY OF FREEDOM 425 (1986). In doing so, I would argue, these theorists fall prey to even more significant problems of exclusion than does Rawls. For a critique of comprehensive liberalism and perfectionist liberalism along these and other lines, see William A. Galston, Two Concepts of Liberalism, 105 ETHICS 516, 523-24 (1995); Charles Larmore, Political Liberalism, 18 POL. THEORY 339, 342-46 (1990); and Chantal Mouffe, Political Liberalism. Neutrality and the Political, 7 RATIO JURIS 314, 323 (1994). In discussing disenfranchisement in Part II, I expand my analysis beyond Rawls's theory to explore the phenomenon of exclusion in the philosophical traditions of social contract theory and republicanism generally. See infra notes 155-78 and accompanying text.
16. I do not mean to suggest, of course, that Rawlsian liberalism is the only version of liberal theory, or even that it is somehow representative of all liberal theories. I focus on Rawls for two reasons. First, his philosophy bears a closer relationship to American liberalism than perhaps any other. See infra notes 13-17 and accompanying text. Second, he places more explicit emphasis on the goal of achieving toleration than many other liberal theorists, see, e.g., RAWLS, POLITICAL LIBERALISM, supra note 9, at 10 ("[P]olitical liberalism applies the principle of toleration to philosophy itself."), so an accusation of intolerance or exclusion against his theory has more significance. All liberal theorists are committed to the principle of toleration in some respect, but "comprehensive" liberals (to use Rawls's term) - like Ronald Dworkin or Robert Nozick - and "perfectionist" liberals - like Joseph Raz - give priority to other values, like "equal concern and respect," see RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 272-78 (1977), the ability to "shap[e one's] life in accordance with some overall plan," see ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 50 (1974), or autonomy, see JOSEPH RAZ, THE MORALITY OF FREEDOM 425 (1986). In doing so, I would argue, these theorists fall prey to even more significant problems of exclusion than does Rawls. For a critique of comprehensive liberalism and perfectionist liberalism along these and other lines, see William A. Galston, Two Concepts of Liberalism, 105 ETHICS 516, 523-24 (1995); Charles Larmore, Political Liberalism, 18 POL. THEORY 339, 342-46 (1990); and Chantal Mouffe, Political Liberalism. Neutrality and the Political, 7 RATIO JURIS 314, 323 (1994). In discussing disenfranchisement in Part II, I expand my analysis beyond Rawls's theory to explore the phenomenon of exclusion in the philosophical traditions of social contract theory and republicanism generally. See infra notes 155-78 and accompanying text.
17. I do not mean to suggest, of course, that Rawlsian liberalism is the only version of liberal theory, or even that it is somehow representative of all liberal theories. I focus on Rawls for two reasons. First, his philosophy bears a closer relationship to American liberalism than perhaps any other. See infra notes 13-17 and accompanying text. Second, he places more explicit emphasis on the goal of achieving toleration than many other liberal theorists, see, e.g., RAWLS, POLITICAL LIBERALISM, supra note 9, at 10 ("[P]olitical liberalism applies the principle of toleration to philosophy itself."), so an accusation of intolerance or exclusion against his theory has more significance. All liberal theorists are committed to the principle of toleration in some respect, but "comprehensive" liberals (to use Rawls's term) - like Ronald Dworkin or Robert Nozick - and "perfectionist" liberals - like Joseph Raz - give priority to other values, like "equal concern and respect," see RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 272-78 (1977), the ability to "shap[e one's] life in accordance with some overall plan," see ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 50 (1974), or autonomy, see JOSEPH RAZ, THE MORALITY OF FREEDOM 425 (1986). In doing so, I would argue, these theorists fall prey to even more significant problems of exclusion than does Rawls. For a critique of comprehensive liberalism and perfectionist liberalism along these and other lines, see William A. Galston, Two Concepts of Liberalism, 105 ETHICS 516, 523-24 (1995); Charles Larmore, Political Liberalism, 18 POL. THEORY 339, 342-46 (1990); and Chantal Mouffe, Political Liberalism. Neutrality and the Political, 7 RATIO JURIS 314, 323 (1994). In discussing disenfranchisement in Part II, I expand my analysis beyond Rawls's theory to explore the phenomenon of exclusion in the philosophical traditions of social contract theory and republicanism generally. See infra notes 155-78 and accompanying text.
18. I do not mean to suggest, of course, that Rawlsian liberalism is the only version of liberal theory, or even that it is somehow representative of all liberal theories. I focus on Rawls for two reasons. First, his philosophy bears a closer relationship to American liberalism than perhaps any other. See infra notes 13-17 and accompanying text. Second, he places more explicit emphasis on the goal of achieving toleration than many other liberal theorists, see, e.g., RAWLS, POLITICAL LIBERALISM, supra note 9, at 10 ("[P]olitical liberalism applies the principle of toleration to philosophy itself."), so an accusation of intolerance or exclusion against his theory has more significance. All liberal theorists are committed to the principle of toleration in some respect, but "comprehensive" liberals (to use Rawls's term) - like Ronald Dworkin or Robert Nozick - and "perfectionist" liberals - like Joseph Raz - give priority to other values, like "equal concern and respect," see RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 272-78 (1977), the ability to "shap[e one's] life in accordance with some overall plan," see ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 50 (1974), or autonomy, see JOSEPH RAZ, THE MORALITY OF FREEDOM 425 (1986). In doing so, I would argue, these theorists fall prey to even more significant problems of exclusion than does Rawls. For a critique of comprehensive liberalism and perfectionist liberalism along these and other lines, see William A. Galston, Two Concepts of Liberalism, 105 ETHICS 516, 523-24 (1995); Charles Larmore, Political Liberalism, 18 POL. THEORY 339, 342-46 (1990); and Chantal Mouffe, Political Liberalism. Neutrality and the Political, 7 RATIO JURIS 314, 323 (1994). In discussing disenfranchisement in Part II, I expand my analysis beyond Rawls's theory to explore the phenomenon of exclusion in the philosophical traditions of social contract theory and republicanism generally. See infra notes 155-78 and accompanying text.
19. I do not mean to suggest, of course, that Rawlsian liberalism is the only version of liberal theory, or even that it is somehow representative of all liberal theories. I focus on Rawls for two reasons. First, his philosophy bears a closer relationship to American liberalism than perhaps any other. See infra notes 13-17 and accompanying text. Second, he places more explicit emphasis on the goal of achieving toleration than many other liberal theorists, see, e.g., RAWLS, POLITICAL LIBERALISM, supra note 9, at 10 ("[P]olitical liberalism applies the principle of toleration to philosophy itself."), so an accusation of intolerance or exclusion against his theory has more significance. All liberal theorists are committed to the principle of toleration in some respect, but "comprehensive" liberals (to use Rawls's term) - like Ronald Dworkin or Robert Nozick - and "perfectionist" liberals - like Joseph Raz - give priority to other values, like "equal concern and respect," see RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 272-78 (1977), the ability to "shap[e one's] life in accordance with some overall plan," see ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 50 (1974), or autonomy, see JOSEPH RAZ, THE MORALITY OF FREEDOM 425 (1986). In doing so, I would argue, these theorists fall prey to even more significant problems of exclusion than does Rawls. For a critique of comprehensive liberalism and perfectionist liberalism along these and other lines, see William A. Galston, Two Concepts of Liberalism, 105 ETHICS 516, 523-24 (1995); Charles Larmore, Political Liberalism, 18 POL. THEORY 339, 342-46 (1990); and Chantal Mouffe, Political Liberalism. Neutrality and the Political, 7 RATIO JURIS 314, 323 (1994). In discussing disenfranchisement in Part II, I expand my analysis beyond Rawls's theory to explore the phenomenon of exclusion in the philosophical traditions of social contract theory and republicanism generally. See infra notes 155-78 and accompanying text.
20. I do not mean to suggest, of course, that Rawlsian liberalism is the only version of liberal theory, or even that it is somehow representative of all liberal theories. I focus on Rawls for two reasons. First, his philosophy bears a closer relationship to American liberalism than perhaps any other. See infra notes 13-17 and accompanying text. Second, he places more explicit emphasis on the goal of achieving toleration than many other liberal theorists, see, e.g., RAWLS, POLITICAL LIBERALISM, supra note 9, at 10 ("[P]olitical liberalism applies the principle of toleration to philosophy itself."), so an accusation of intolerance or exclusion against his theory has more significance. All liberal theorists are committed to the principle of toleration in some respect, but "comprehensive" liberals (to use Rawls's term) - like Ronald Dworkin or Robert Nozick - and "perfectionist" liberals - like Joseph Raz - give priority to other values, like "equal concern and respect," see RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 272-78 (1977), the ability to "shap[e one's] life in accordance with some overall plan," see ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 50 (1974), or autonomy, see JOSEPH RAZ, THE MORALITY OF FREEDOM 425 (1986). In doing so, I would argue, these theorists fall prey to even more significant problems of exclusion than does Rawls. For a critique of comprehensive liberalism and perfectionist liberalism along these and other lines, see William A. Galston, Two Concepts of Liberalism, 105 ETHICS 516, 523-24 (1995); Charles Larmore, Political Liberalism, 18 POL. THEORY 339, 342-46 (1990); and Chantal Mouffe, Political Liberalism. Neutrality and the Political, 7 RATIO JURIS 314, 323 (1994). In discussing disenfranchisement in Part II, I expand my analysis beyond Rawls's theory to explore the phenomenon of exclusion in the philosophical traditions of social contract theory and republicanism generally. See infra notes 155-78 and accompanying text.
21. For other observations and criticisms of the exclusionary nature of modern liberal theory and politics, see WILLIAM E. CONNOLLY, IDENTITY\DIFFERENCE: DEMOCRATIC NEGOTIATIONS OF POLITICAL PARADOX (1991); THOMAS L. DUMM, DEMOCRACY AND PUNISHMENT: DISCIPLINARY ORIGINS OF THE UNITED STATES (1987); BONNIE HONIG, POLITICAL THEORY AND THE DISPLACEMENT OF POLITICS (1993); J. DONALD MOON, CONSTRUCTING COMMUNITY (1993); and Mouffe, supra note 11. My argument in this Note draws on each of these theorists' work, especially that of Bonnie Honig, see infra Part I, but it also differs in key ways. First, to a greater or lesser extent, each of these theorists argues for the abandonment of traditional liberal theories. See, e.g., CONNOLLY, supra, at 80 (calling for notion of politics called "agonistic democracy," embodying extreme politicization of identity); DUMM, supra, at 152 (calling for new "rhetoric of freedom, one grounded in a new right, a right to fear"); MOON, supra, at 8 (rejecting traditional conceptions of liberalism, including Rawls's, for his own "political liberalism"). In contrast, the premise of my argument is that Rawlsian liberalism itself can provide a secure foundation for a more tolerant, and less exclusive, version of liberalism. Where the above critics see only exclusion, I see ambivalence. Thus, while Rawls's reliance on consensus leads to exclusion, justice as fairness simultaneously provides the resources with which to overcome this reliance. The task, I argue, is to shift the theory so as to privilege toleration over consensus, rather than the reverse. See infra Part III. The second way in which my analysis differs from those of the above critics is in its effort to explore the dynamics of exclusion not only in liberal theory but in liberal politics as well, through the "paradox of disenfranchisement." At least one other scholar has attempted to look at the role of felon disenfranchisement in American society, see Note, The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and "The Purity of the Ballot Box", 102 HARV. L. REV. 1300 (1989), and our analyses overlap in a number of ways. There are, however, crucial differences between that author's conclusions and my own. See infra note 179.
22. For other observations and criticisms of the exclusionary nature of modern liberal theory and politics, see WILLIAM E. CONNOLLY, IDENTITY\DIFFERENCE: DEMOCRATIC NEGOTIATIONS OF POLITICAL PARADOX (1991); THOMAS L. DUMM, DEMOCRACY AND PUNISHMENT: DISCIPLINARY ORIGINS OF THE UNITED STATES (1987); BONNIE HONIG, POLITICAL THEORY AND THE DISPLACEMENT OF POLITICS (1993); J. DONALD MOON, CONSTRUCTING COMMUNITY (1993); and Mouffe, supra note 11. My argument in this Note draws on each of these theorists' work, especially that of Bonnie Honig, see infra Part I, but it also differs in key ways. First, to a greater or lesser extent, each of these theorists argues for the abandonment of traditional liberal theories. See, e.g., CONNOLLY, supra, at 80 (calling for notion of politics called "agonistic democracy," embodying extreme politicization of identity); DUMM, supra, at 152 (calling for new "rhetoric of freedom, one grounded in a new right, a right to fear"); MOON, supra, at 8 (rejecting traditional conceptions of liberalism, including Rawls's, for his own "political liberalism"). In contrast, the premise of my argument is that Rawlsian liberalism itself can provide a secure foundation for a more tolerant, and less exclusive, version of liberalism. Where the above critics see only exclusion, I see ambivalence. Thus, while Rawls's reliance on consensus leads to exclusion, justice as fairness simultaneously provides the resources with which to overcome this reliance. The task, I argue, is to shift the theory so as to privilege toleration over consensus, rather than the reverse. See infra Part III. The second way in which my analysis differs from those of the above critics is in its effort to explore the dynamics of exclusion not only in liberal theory but in liberal politics as well, through the "paradox of disenfranchisement." At least one other scholar has attempted to look at the role of felon disenfranchisement in American society, see Note, The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and "The Purity of the Ballot Box", 102 HARV. L. REV. 1300 (1989), and our analyses overlap in a number of ways. There are, however, crucial differences between that author's conclusions and my own. See infra note 179.
23. For other observations and criticisms of the exclusionary nature of modern liberal theory and politics, see WILLIAM E. CONNOLLY, IDENTITY\DIFFERENCE: DEMOCRATIC NEGOTIATIONS OF POLITICAL PARADOX (1991); THOMAS L. DUMM, DEMOCRACY AND PUNISHMENT: DISCIPLINARY ORIGINS OF THE UNITED STATES (1987); BONNIE HONIG, POLITICAL THEORY AND THE DISPLACEMENT OF POLITICS (1993); J. DONALD MOON, CONSTRUCTING COMMUNITY (1993); and Mouffe, supra note 11. My argument in this Note draws on each of these theorists' work, especially that of Bonnie Honig, see infra Part I, but it also differs in key ways. First, to a greater or lesser extent, each of these theorists argues for the abandonment of traditional liberal theories. See, e.g., CONNOLLY, supra, at 80 (calling for notion of politics called "agonistic democracy," embodying extreme politicization of identity); DUMM, supra, at 152 (calling for new "rhetoric of freedom, one grounded in a new right, a right to fear"); MOON, supra, at 8 (rejecting traditional conceptions of liberalism, including Rawls's, for his own "political liberalism"). In contrast, the premise of my argument is that Rawlsian liberalism itself can provide a secure foundation for a more tolerant, and less exclusive, version of liberalism. Where the above critics see only exclusion, I see ambivalence. Thus, while Rawls's reliance on consensus leads to exclusion, justice as fairness simultaneously provides the resources with which to overcome this reliance. The task, I argue, is to shift the theory so as to privilege toleration over consensus, rather than the reverse. See infra Part III. The second way in which my analysis differs from those of the above critics is in its effort to explore the dynamics of exclusion not only in liberal theory but in liberal politics as well, through the "paradox of disenfranchisement." At least one other scholar has attempted to look at the role of felon disenfranchisement in American society, see Note, The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and "The Purity of the Ballot Box", 102 HARV. L. REV. 1300 (1989), and our analyses overlap in a number of ways. There are, however, crucial differences between that author's conclusions and my own. See infra note 179.
24. For other observations and criticisms of the exclusionary nature of modern liberal theory and politics, see WILLIAM E. CONNOLLY, IDENTITY\DIFFERENCE: DEMOCRATIC NEGOTIATIONS OF POLITICAL PARADOX (1991); THOMAS L. DUMM, DEMOCRACY AND PUNISHMENT: DISCIPLINARY ORIGINS OF THE UNITED STATES (1987); BONNIE HONIG, POLITICAL THEORY AND THE DISPLACEMENT OF POLITICS (1993); J. DONALD MOON, CONSTRUCTING COMMUNITY (1993); and Mouffe, supra note 11. My argument in this Note draws on each of these theorists' work, especially that of Bonnie Honig, see infra Part I, but it also differs in key ways. First, to a greater or lesser extent, each of these theorists argues for the abandonment of traditional liberal theories. See, e.g., CONNOLLY, supra, at 80 (calling for notion of politics called "agonistic democracy," embodying extreme politicization of identity); DUMM, supra, at 152 (calling for new "rhetoric of freedom, one grounded in a new right, a right to fear"); MOON, supra, at 8 (rejecting traditional conceptions of liberalism, including Rawls's, for his own "political liberalism"). In contrast, the premise of my argument is that Rawlsian liberalism itself can provide a secure foundation for a more tolerant, and less exclusive, version of liberalism. Where the above critics see only exclusion, I see ambivalence. Thus, while Rawls's reliance on consensus leads to exclusion, justice as fairness simultaneously provides the resources with which to overcome this reliance. The task, I argue, is to shift the theory so as to privilege toleration over consensus, rather than the reverse. See infra Part III. The second way in which my analysis differs from those of the above critics is in its effort to explore the dynamics of exclusion not only in liberal theory but in liberal politics as well, through the "paradox of disenfranchisement." At least one other scholar has attempted to look at the role of felon disenfranchisement in American society, see Note, The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and "The Purity of the Ballot Box", 102 HARV. L. REV. 1300 (1989), and our analyses overlap in a number of ways. There are, however, crucial differences between that author's conclusions and my own. See infra note 179.
25. For other observations and criticisms of the exclusionary nature of modern liberal theory and politics, see WILLIAM E. CONNOLLY, IDENTITY\DIFFERENCE: DEMOCRATIC NEGOTIATIONS OF POLITICAL PARADOX (1991); THOMAS L. DUMM, DEMOCRACY AND PUNISHMENT: DISCIPLINARY ORIGINS OF THE UNITED STATES (1987); BONNIE HONIG, POLITICAL THEORY AND THE DISPLACEMENT OF POLITICS (1993); J. DONALD MOON, CONSTRUCTING COMMUNITY (1993); and Mouffe, supra note 11. My argument in this Note draws on each of these theorists' work, especially that of Bonnie Honig, see infra Part I, but it also differs in key ways. First, to a greater or lesser extent, each of these theorists argues for the abandonment of traditional liberal theories. See, e.g., CONNOLLY, supra, at 80 (calling for notion of politics called "agonistic democracy," embodying extreme politicization of identity); DUMM, supra, at 152 (calling for new "rhetoric of freedom, one grounded in a new right, a right to fear"); MOON, supra, at 8 (rejecting traditional conceptions of liberalism, including Rawls's, for his own "political liberalism"). In contrast, the premise of my argument is that Rawlsian liberalism itself can provide a secure foundation for a more tolerant, and less exclusive, version of liberalism. Where the above critics see only exclusion, I see ambivalence. Thus, while Rawls's reliance on consensus leads to exclusion, justice as fairness simultaneously provides the resources with which to overcome this reliance. The task, I argue, is to shift the theory so as to privilege toleration over consensus, rather than the reverse. See infra Part III. The second way in which my analysis differs from those of the above critics is in its effort to explore the dynamics of exclusion not only in liberal theory but in liberal politics as well, through the "paradox of disenfranchisement." At least one other scholar has attempted to look at the role of felon disenfranchisement in American society, see Note, The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and "The Purity of the Ballot Box", 102 HARV. L. REV. 1300 (1989), and our analyses overlap in a number of ways. There are, however, crucial differences between that author's conclusions and my own. See infra note 179.
26. In a constitutional democracy like the United States, the relationship between theory and practice is particularly close when one looks beyond day-to-day politics and (in Rawls's words) "ordinary law" to focus on matters of constitutional import and "higher law." See RAWLS, POLITICAL LIBERALISM, supra note 9, at 231; see also infra Part II. The line between theory and practice in such cases - in legal opinions on constitutional matters, for instance - while not invisible, is certainly blurred.
27. See, e.g., United States v. Lucas, 2 M.J. 834, 838 (A.C.M.R. 1976) (Costello, J., concurring) (citing Rawls's view of punishment in well-ordered society as support for affirming criminal sentence); Barnes v. Tools & Machinery Builders, Inc., 715 S.W.2d 518, 523-24 (Mo. 1986) (Donnelly, J., dissenting) (quoting at length from Rawls in products liability case); K Mart Corp. v. Ponsock, 732 P.2d 1364, 1368 n.4 (Nev. 1987) (citing Rawls in support of tort judgment); see also Peter F. Lake, Liberalism Within the Limits of the Reasonable Alone: Developments of John Rawls' Political Philosophy, Its Political Positivism, and the Limits on Its Applicability, 19 VT. L. REV. 603, 603 n.2 (1995) (citing over 40 cases in which Rawls has been invoked).
28. See Richard B. Parker, The Jurisprudential Uses of John Rawls, in NOMOS XX: CONSTITUTIONALISM 269, 269 (J. Roland Pennock & John W. Chapman eds., 1979).
29. Michael J. Sandel, The Procedural Republic and the Unencumbered Self, 12 POL. THEORY 81, 82 (1984); see also id. ("[S]eeing how [Rawls's philosophy] goes wrong as philosophy may help us to diagnose our present political condition.").
30. Alan Ryan, How Liberalism, Politics Come to Terms, WASH. TIMES, May 16, 1993, at B8.
31. In urging Rawlsian liberalism further toward toleration, my aim is to make the theory live up to its own ideals and commitments and to those of liberalism generally. As Rawls himself notes, liberalism and toleration are closely linked, both historically and conceptually. See RAWLS, POLITICAL LIBERALISM, supra note 9, at xxii-xxvii; see also Will Kymlicka, Two Models of Pluralism and Tolerance, 13 ANALYSE & KRITIK 33, 33-34 (1992) (arguing that modern liberalism is closely linked to individual-based view of toleration). Indeed, toleration is, in Will Kymlicka's words, a "cardinal liberal virtue." WILL KYMLICKA, LIBERALISM, COMMUNITY AND CULTURE 9 (1989).
32. In urging Rawlsian liberalism further toward toleration, my aim is to make the theory live up to its own ideals and commitments and to those of liberalism generally. As Rawls himself notes, liberalism and toleration are closely linked, both historically and conceptually. See RAWLS, POLITICAL LIBERALISM, supra note 9, at xxii-xxvii; see also Will Kymlicka, Two Models of Pluralism and Tolerance, 13 ANALYSE & KRITIK 33, 33-34 (1992) (arguing that modern liberalism is closely linked to individual-based view of toleration). Indeed, toleration is, in Will Kymlicka's words, a "cardinal liberal virtue." WILL KYMLICKA, LIBERALISM, COMMUNITY AND CULTURE 9 (1989).
33. In urging Rawlsian liberalism further toward toleration, my aim is to make the theory live up to its own ideals and commitments and to those of liberalism generally. As Rawls himself notes, liberalism and toleration are closely linked, both historically and conceptually. See RAWLS, POLITICAL LIBERALISM, supra note 9, at xxii-xxvii; see also Will Kymlicka, Two Models of Pluralism and Tolerance, 13 ANALYSE & KRITIK 33, 33-34 (1992) (arguing that modern liberalism is closely linked to individual-based view of toleration). Indeed, toleration is, in Will Kymlicka's words, a "cardinal liberal virtue." WILL KYMLICKA, LIBERALISM, COMMUNITY AND CULTURE 9 (1989).
34. See generally Samuel Freeman, Reason and Agreement in Social Contract Views, 19 PHIL. & PUB. AFF. 122 (1990) (discussing role of consent in social contract theories).
35. RAWLS, A THEORY OF JUSTICE, supra note 9, at 12.
36. Id. at 141. The "desired solution" is the now famous two principles of justice as fairness: first, that each person is to have an equal right to the most extensive total system of basic liberties, including the right to vote; and second, that economic inequalities are to be arranged for the greatest benefit of the least advantaged. Priority is given to the first principle, so that greater social or economic advantages can neither justify nor compensate for a deviation from institutions of equal liberty. See id. at 60-61, 302;
37. RAWLS, POLITICAL LIBERALISM, supra note 9, at 5-6, 291.
38. The parties in the original position are mutually disinterested, rational, and know very little about themselves or their society. The parties know that they have some conception of the good and they know that the "circumstances of justice" - a conflict of interests and moderate scarcity - hold in their society. All other knowledge of their particular circumstances, including their places in society, their class or social status, their fortunes in the distribution of natural assets and abilities, their sex, race, religion, and ethnicity, is covered by a "veil of ignorance" on the grounds that it is "irrelevant from the standpoint of justice." RAWLS, A THEORY OF JUSTICE, supra note 9, at 18-19. To give the parties in the original position some theory of the good on the basis of which to deliberate, Rawls develops a "thin" theory based on a set of primary goods that it is "supposed a rational man wants whatever else he wants," Id. at 92; see also RAWLS, POLITICAL LIBERALISM, supra note 9, at 308-09.
39. The parties in the original position are mutually disinterested, rational, and know very little about themselves or their society. The parties know that they have some conception of the good and they know that the "circumstances of justice" - a conflict of interests and moderate scarcity - hold in their society. All other knowledge of their particular circumstances, including their places in society, their class or social status, their fortunes in the distribution of natural assets and abilities, their sex, race, religion, and ethnicity, is covered by a "veil of ignorance" on the grounds that it is "irrelevant from the standpoint of justice." RAWLS, A THEORY OF JUSTICE, supra note 9, at 18-19. To give the parties in the original position some theory of the good on the basis of which to deliberate, Rawls develops a "thin" theory based on a set of primary goods that it is "supposed a rational man wants whatever else he wants," Id. at 92; see also RAWLS, POLITICAL LIBERALISM, supra note 9, at 308-09.
40. The parties in the original position are mutually disinterested, rational, and know very little about themselves or their society. The parties know that they have some conception of the good and they know that the "circumstances of justice" - a conflict of interests and moderate scarcity - hold in their society. All other knowledge of their particular circumstances, including their places in society, their class or social status, their fortunes in the distribution of natural assets and abilities, their sex, race, religion, and ethnicity, is covered by a "veil of ignorance" on the grounds that it is "irrelevant from the standpoint of justice." RAWLS, A THEORY OF JUSTICE, supra note 9, at 18-19. To give the parties in the original position some theory of the good on the basis of which to deliberate, Rawls develops a "thin" theory based on a set of primary goods that it is "supposed a rational man wants whatever else he wants," Id. at 92; see also RAWLS, POLITICAL LIBERALISM, supra note 9, at 308-09.
41. See. e.g., HONIG, supra note 12, at 132-33; MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE 128-32 (1982); IRIS MARION YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE 101 (1990). Rawls himself writes that "the parties have no basis for bargaining in the usual sense." RAWLS, A THEORY OF JUSTICE, supra note 9, at 139.
42. See. e.g., HONIG, supra note 12, at 132-33; MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE 128-32 (1982); IRIS MARION YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE 101 (1990). Rawls himself writes that "the parties have no basis for bargaining in the usual sense." RAWLS, A THEORY OF JUSTICE, supra note 9, at 139.
43. See. e.g., HONIG, supra note 12, at 132-33; MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE 128-32 (1982); IRIS MARION YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE 101 (1990). Rawls himself writes that "the parties have no basis for bargaining in the usual sense." RAWLS, A THEORY OF JUSTICE, supra note 9, at 139.
44. RAWLS, A THEORY OF JUSTICE, supra note 9, at 263. A number of critics, notably feminists, have taken issue with Rawls's exclusion of multiple perspectives from the original position. See, e.g., SUSAN MOLLER OKIN, JUSTICE, GENDER, AND THE FAMILY 89-109 (1989); Hirshman, supra note 8, at 1860-97.
45. RAWLS, A THEORY OF JUSTICE, supra note 9, at 263. A number of critics, notably feminists, have taken issue with Rawls's exclusion of multiple perspectives from the original position. See, e.g., SUSAN MOLLER OKIN, JUSTICE, GENDER, AND THE FAMILY 89-109 (1989); Hirshman, supra note 8, at 1860-97.
46. RAWLS, A THEORY OF JUSTICE, supra note 9, at 121.
47. Id. at 139 (emphasis added).
48. See HONIG, supra note 12, at 135-36.
49. As I discuss infra in text accompanying notes 38-40, Rawls no longer justifies political liberalism on the basis of truth, but relies on reasonableness instead. But see Robert Justin Lipkin, In Defense of Outlaws: Liberalism and the Role of Reasonableness, Public Reason, and Tolerance in Multicultural Constitutionalism, 45 DEPAUL L. REV. 263, 284-85 (1996) (arguing that Rawls still relies on truth, though "camouflage[d]" by reasonbleness).
50. For a similar observation, see HONIG, supra note 12, at 136-37.
51. See Stephen Mulhall, Reply to Alain Boyer on "Democracy and Disagreement", 8 RATIO JURIS 9, 9-10 (1995).
52. See RAWLS, A THEORY OF JUSTICE, supra note 9, at 195-201.
53. See RAWLS, POLITICAL LIBERALISM, supra note 9, at 340.
54. See HONIG, supra note 12, at 131-37. Honig argues that the effectiveness of the original position lies in its drift "from a contractual situation, to a perspectival position . . . to a self-ordering mantra." Id. at 132. As I have suggested, see supra text accompanying notes 27-32, I do not think that the original position moves cleanly from any one formulation to another; ambivalence characterizes its very structure.
55. RAWLS, POLITICAL LIBERALISM, supra note 9, at xvi.
56. Id. at xvii.
57. Id. at xvi. A comprehensive doctrine, Rawls explains, "includes conceptions of what is of value in human life, as well as ideals of personal virtue and character, that are to inform much of our nonpolitical conduct (in the limit our life as a whole)." Id. at 175.
58. Id. at xvi. A comprehensive doctrine, Rawls explains, "includes conceptions of what is of value in human life, as well as ideals of personal virtue and character, that are to inform much of our nonpolitical conduct (in the limit our life as a whole)." Id. at 175.
59. Id. at 94.
60. Cf. Paul F. Campos, Secular Fundamentalism, 94 COLUM. L. REV. 1814, 1820 (1994) (arguing that, "for Rawls, 'reason' and 'reasonable' fill the lexical space that in many other discourses would be filled by 'God,' or 'the scriptures,' or 'moral insight'").
61. RAWLS, POLITICAL LIBERALISM, supra note 9, at 127. But see supra note 28.
62. RAWLS, POLITICAL LIBERALISM, supra note 9, at 94.
63. For an extensive consideration of Rawls's idea of the reasonable, see Lipkin, supra note 28, at 279-302. See also Miriam Galston, Rawlsian Dualism and the Autonomy of Political Thought, 94 COLUM. L. REV. 1842, 1846-48 (1994) (discussing Rawls's idea of the reasonable and its connection to political principle of toleration); Gary C. Leedes, Rawls's Excessively Secular Political Conception, 27 U. RICH. L. REV. 1083, 1091-95 (1993) (arguing that Rawls's idea of the reasonable does not adequately deal with problem of motivation).
64. For an extensive consideration of Rawls's idea of the reasonable, see Lipkin, supra note 28, at 279-302. See also Miriam Galston, Rawlsian Dualism and the Autonomy of Political Thought, 94 COLUM. L. REV. 1842, 1846-48 (1994) (discussing Rawls's idea of the reasonable and its connection to political principle of toleration); Gary C. Leedes, Rawls's Excessively Secular Political Conception, 27 U. RICH. L. REV. 1083, 1091-95 (1993) (arguing that Rawls's idea of the reasonable does not adequately deal with problem of motivation).
65. RAWLS, POLITICAL LIBERALISM, supra note 9, at 49.
66. Id. at 54. By burdens of judgment Rawls means the "sources, or causes, of disagreement between reasonable persons so defined," including conflicting or complex evidence, the indeterminacy of concepts and the consequent reliance on interpretation, and different citizens' total experiences. See id. at 55. For a more comprehensive list, see id. at 56-57.
67. Id. at 58.
68. See supra text accompanying note 42.
69. For definition of a comprehensive doctrine, see supra note 36.
70. RAWLS, POLITICAL LIBERALISM, supra note 9, at 38.
71. Id. at 223.
72. Id. at 227.
73. See Campos, supra note 38, at 1826; Galston, supra note 41, at 1859; Lipkin, supra note 28, at 300.
74. Though it is only "a device of representation," Rawls writes, "the idea of the original position serves as a means of public reflection and self-clarification." RAWLS, POLITICAL LIBERALISM, supra note 9, at 26 (emphasis added).
75. Id. at 39.
76. Id. at 10.
77. Id.
78. See Galston, supra note 41, at 1849-51; Lipkin, supra note 28, at 289; see also Elizabeth H. Wolgast, The Demands of Public Reason, 94 COLUM. L. REV. 1936, 1941-42 (1994) (questioning belief that reasonableness is separable from comprehensive doctrine).
79. Cf. Mouffe, supra note 11, at 321-22 (discussing exclusionary elements of political liberalism).
80. For an explication of Rawls's conception of the person, see Frank I. Michelman, The Subject of Liberalism, 46 STAN. L. REV. 1807, 1818-20 (1994) (book review). See also WILLIAM A. GALSTON, LIBERAL PURPOSES: GOODS, VIRTUES, AND DIVERSITY IN THE LIBERAL STATE 118-39 (1991) (criticizing Rawls's conception of the person).
81. For an explication of Rawls's conception of the person, see Frank I. Michelman, The Subject of Liberalism, 46 STAN. L. REV. 1807, 1818-20 (1994) (book review). See also WILLIAM A. GALSTON, LIBERAL PURPOSES: GOODS, VIRTUES, AND DIVERSITY IN THE LIBERAL STATE 118-39 (1991) (criticizing Rawls's conception of the person).
82. RAWLS, POLITICAL LIBERALISM, supra note 9, at 71.
83. See id. at 71, 81.
84. Id. at 50.
85. While Rawls presumes strict compliance with his principles of justice and considers almost exclusively issues of ideal theory, I base much of my argument on an application of his ideal theory to nonideal circumstances. There are two reasons for this. First, an essential part of my argument is that Rawls's failure to consider partial compliance theory is one of the weaknesses in his account of justice as fairness. Cf. RAWLS, A THEORY OF JUSTICE, supra note 9, at 575 (acknowledging lack of theory of punishment as weakness). On the rare occasions when he does consider it (for example, the few pages of A Theory of Justice devoted to discussion of punishment), Rawls fails to grasp the problems raised for his ideal theory. Second, the test of any ideal theory is how well it can explain and withstand the complexities of a nonideal world, that of everyday life.
86. My analysis in this Section of the punitive tendency in the second stage of Rawls's theory bears many similarities to Bonnie Honig's analysis, see HONIG, supra note 12, with two principal differences. First, she considers justice as fairness only in the context of A Theory of Justice (even though the ideas contained in Political Liberalism had appeared in essays prior to Honig's writing). Her analysis, therefore, does not take into account Rawls's revised version of stability or, for that matter, the introduction of his idea of the reasonable. More importantly, Honig does not identify an ambivalence in Rawls's theory; she sees only exclusion where I also see the possibility of toleration. It is on the basis of this ambivalence, I believe, that the liberal nature of justice as fairness can be redeemed. See infra Part III.
87. RAWLS, A THEORY OF JUSTICE, supra note 9, at 177.
88. Id. at 245. Rawls does think that even ideal theory should provide an account of a "public system of penalties." Id. at 240. The purpose of this system, however, is not to punish violations of the law (in ideal theory, after all, there are no violations of the law) but rather to solve an assurance problem. See id.
89. Id. at 245. Rawls does think that even ideal theory should provide an account of a "public system of penalties." Id. at 240. The purpose of this system, however, is not to punish violations of the law (in ideal theory, after all, there are no violations of the law) but rather to solve an assurance problem. See id.
90. Id. at 572.
91. See George Klosko, Rawls's Argument from Political Stability, 94 COLUM. L. REV. 1882, 1883-89 (1994) (contrasting views of stability in A Theory of Justice with views in Political Liberalism).
92. RAWLS, POLITICAL LIBERALISM, supra note 9, at 142.
93. Id.
94. Id.
95. Id. at 143 (emphasis added).
96. Id. (emphasis added).
97. Id. at 142-43.
98. Id. at 143.
99. See Galston, supra note 11, at 518-19 (criticizing Rawls for focusing on fact of reasonable pluralism rather than fact of pluralism).
100. RAWLS, POLITICAL LIBERALISM, supra note 9, at xvi-xvii.
101. Id. at 64 n.19.
102. It is important to note that the second aspect of the reasonable is itself biased toward exclusion in that Rawls defines the burdens of judgment as the "sources, or causes, of disagreement between reasonable persons so defined." Id. at 55 (emphasis added); see supra text accompanying note 43.
103. Cf. CONNOLLY, supra note 12, at 80 (arguing that modern liberals fail to acknowledge cruelty in forcing human beings to conform to liberal conception of individual because liberals presume - wrongly - that humans do so naturally).
104. RAWLS, POLITICAL LIBERALISM, supra note 9, at xvii.
105. See id. at 64 n.19.
106. Id. at 142 (emphasis added); see supra text accompanying notes 67-68.
107. RAWLS, POLITICAL LIBERALISM, supra note 9, at 136.
108. See Mouffe, supra note 11, at 321-22.
109. Rawls does not consider the institutions of punishment and criminal law in Political Liberalism. For a discussion of punishment in a Rawlsian liberal state, see Jean Hampton, Retribution and the Liberal State, 1994 J. CONTEMP. LEGAL ISSUES 117, 132-35.
110. RAWLS, A THEORY OF JUSTICE, supra note 9, at 314-15 (emphasis added) (footnote omitted).
111. Some critics, notably Honig and Sandel, argue that passages like the one quoted above contradict Rawls's earlier rejection of moral desert. See HONIG, supra note 12, at 138-39; SANDEL, supra note 23, at 82-90. As Honig writes, "From Rawls's perspective, the bad character is so bewilderingly deviant that Rawls is forced back into a discourse he disavowed: the discourse of antecedent moral worth." HONIG, supra note 12, at 138. I do not believe that this criticism is correct. The moral worth that Rawls rejects is antecedent: It is based on criteria outside of or prior to the selection of a conception of justice. The judgment of moral worth at issue in the case of criminals is not antecedent in the sense that it is determined after the selection of principles of justice, not before. Honig and Sandel seem to be suggesting that Rawls's rejection of desert means justice as fairness may not make moral judgments about individuals at all; this is clearly not the case and simply weakens Rawls's theory unnecessarily.
112. HONIG, supra note 12, at 139.
113. RAWLS, POLITICAL LIBERALISM, supra note 9, at 185 (discussing those with incapacitating tastes and preferences).
114. RAWLS, A THEORY OF JUSTICE, supra note 9, at 575.
115. Id.
116. Id. at 576.
117. MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON 90 (Alan Sheridan trans., 1979). In shifting the right to punish from the sovereign to the defense of society, Foucault argues, social contract theory had aimed to limit and control the possible exercise of coercive power. See id. But paradoxically, it achieved just the opposite: The right to punish "finds itself recombined with elements so strong that it becomes almost more to be feared. . . . It [becomes] a terrible 'super power.'" Id.
118. MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON 90 (Alan Sheridan trans., 1979). In shifting the right to punish from the sovereign to the defense of society, Foucault argues, social contract theory had aimed to limit and control the possible exercise of coercive power. See id. But paradoxically, it achieved just the opposite: The right to punish "finds itself recombined with elements so strong that it becomes almost more to be feared. . . . It [becomes] a terrible 'super power.'" Id.
119. See id.
120. For an observation of this phenomenon in the context of American politics, see infra note 183. If there is a maximum level of punishment in Rawls's society, it is extremely high: It must threaten the compliant citizens' own senses of liberty or be of excessive cost. See RAWLS, A THEORY OF JUSTICE, supra note 9, at 240-41 ("The establishment of a coercive agency is rational only if these disadvantages are less than the loss of liberty from instability."). The reasonableness of such a system is conspicuously absent as a consideration.
121. RAWLS, A THEORY OF JUSTICE, supra note 9, at 576 (emphasis added). Based on his argument in Political Liberalism, Rawls would call incorrect an appeal that solely referred to the "collective rationality of the principles." See RAWLS, POLITICAL LIBERALISM, supra note 9, at 53 n.7. This does not affect my immediate point, however, which is that the principles, whatever their origin, would not be reconsidered even in the face of a reliance on widespread punishment to enforce stability. For a kindred observation, see HONIG, supra note 12, at 144.
122. RAWLS, A THEORY OF JUSTICE, supra note 9, at 576 (emphasis added). Based on his argument in Political Liberalism, Rawls would call incorrect an appeal that solely referred to the "collective rationality of the principles." See RAWLS, POLITICAL LIBERALISM, supra note 9, at 53 n.7. This does not affect my immediate point, however, which is that the principles, whatever their origin, would not be reconsidered even in the face of a reliance on widespread punishment to enforce stability. For a kindred observation, see HONIG, supra note 12, at 144.
123. RAWLS, POLITICAL LIBERALISM, supra note 9, at 136-37 (discussing "liberal principle of legitimacy").
124. Id. at 195.
125. Id. at 197.
126. RAWLS, A THEORY OF JUSTICE, supra note 9, at 576 (emphasis added).
127. Cf. Heidi M. Hurd, The Levitation of Liberalism, 105 YALE L.J. 795, 819 (1995) (book review) (criticizing Rawls for preaching to converted and excluding those who hold "unreasonable" views).
128. As Honig rightly concludes: "Rawls comes as close as he ever does to admitting that justice as fairness is built on an ineliminable moment of arbitrariness: some will feel at home, completed and realized by the constructions of justice as fairness, and others will not." HONIG, supra note 12, at 141.
129. Cf. Mouffe, supra note 11, at 322 ("No state or political order, even a liberal one, can exist without some form of exclusion . . . . But it is very important to acknowledge those forms of exclusion for what they are and the violence that they imply, instead of concealing them under the guise of rationality.").
130. The punitive tendency in justice as fairness belies a fundamental insecurity in the theory: If "just institutions" truly offered "sufficient motivation of the appropriate kind" for persons to comply voluntarily, as Rawls argues, the stabilization of society through punishment would be unnecessary. See RAWLS, POLITICAL LIBERALISM, supra note 9, at 142-43.
131. My argument is not that Rawls supports disenfranchisement; in fact, he does not mention it at all. See infra note 109. Rather, it is first that the ambivalence in Rawls's theory can be seen in American law, and second that this ambivalence permits actions like disenfranchisement that are contradictory with other elements of both Rawls's theory and American liberalism, including the strict protection of basic rights and liberties.
132. I focus in this Part on the case of permanent disenfranchisement, not disenfranchisement during time spent in prison. Citizens in 47 states lose the right to vote while serving time for a felony conviction, whereas felons lose the right to vote permanently in only 14 states. See infra note 125. My analysis could easily extend to the case of disenfranchisement in prison, but the loss of one's voting rights for life makes the issues I am discussing clearer. For a discussion of voting rights while in prison, see generally Shapiro, supra note 5.
133. See supra note 21.
134. RAWLS, POLITICAL LIBERALISM, supra note 9, at 5 (emphasis added).
135. Id. at 327.
136. RAWLS, A THEORY OF JUSTICE, supra note 9, at 221. If Rawls has an opinion on disenfranchisement, this passage suggests that it is in opposition to the practice. On the other hand, at another point in A Theory of Justice, Rawls writes that "[a]ll sane adults, with certain generally recognized exceptions, have the right to take part in political affairs."
137. Id. at 222 (emphasis added). Rawls does not specify the exceptions but it is not inconceivable that criminals are among them. In any event, as I have mentioned, Rawls's actual views on disenfranchisement are incidental to my analysis. See supra note 104. It is more than enough to point out that his relevant views are ambiguous.
138. JUDITH N. SHKLAR, AMERICAN CITIZENSHIP: THE QUEST FOR INCLUSION 64 (1991). The other right that Shklar cites is earning. See id. at 63-101.
139. Fortson v. Morris, 385 U.S. 231, 250 (1966) (Fortas, J., dissenting) (arguing that state constitutional provision, providing that legislature select governor from two candidates receiving most votes where no candidate receives majority, violates Equal Protection Clause).
140. RAWLS, POLITICAL LIBERALISM, supra note 9, at 330.
141. Id.
142. Id. at 329.
143. 118 U.S. 356 (1886) (holding city ordinance unconstitutional where official is empowered to deny arbitrarily permission to conduct lawful business).
144. Id. at 370.
145. 376 U.S. 1 (1964) (holding that disparity among congressional districts presents justiciable claim under Fourteenth Amendment).
146. Id. at 17.
147. SHKLAR, supra note 110, at 2.
148. Id.; see also Adam Winkler, Note, Expressive Voting, 68 N.Y.U. L. REV. 330 (1993) (arguing for view of voting as meaningful participatory act as opposed to "instrumental" view espoused by Supreme Court).
149. RAWLS, POLITICAL LIBERALISM, supra note 9, at 318.
150. Id.
151. RAWLS, A THEORY OF JUSTICE, supra note 9, at 545 (emphasis added). One advantage of this over the pragmatic justification is its emphasis on the importance of the right to vote rather than of its exercise. The pragmatic justification does not account adequately for the fact that so many citizens regularly fail to vote. See SHKLAR, supra note 110, a, 27 ("It was the denial of the suffrage . . . that made the right to vote such a mark of social standing. . . . [O]nce one possessed the right, it conferred no other personal advantages. Not the exercise, only the right, signified deeply.").
152. See, e.g., U.S. CONST. amend. XV (granting blacks right to vote); id. amend. XIX (granting women right to vote); id. amend. XXIV (prohibiting poll tax in federal elections); id. amend. XXVI (granting 18-year-olds right to vote); Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966) (prohibiting poll tax in state elections).
153. The states that continue disenfrachisement are: Alabama (ALA. CONST. art. VIII, § 182), Arizona (ARIZ. CONST. art. VII, § 2; ARIZ. REV. STAT. ANN. §§ 13-912(a), 16-101(a)(5) (West 1989)), Florida (FLA. CONST. art. VI, § 4; FLA. STAT. ANN. ch. 944.292 (Harrison 1991)), Iowa (IOWA CONST. art. II, § 5), Kentucky (KY. CONST. § 145), Maryland (MD. CONST. art. I, § 4; MD. ANN. CODE OF 1957 art. 33, §§ 3-4 (1993)), Mississippi (MISS. CONST. art. 12, § 241), Nevada (NEV. CONST. art. II, § 1), New Mexico (N.M. CONST. art. VII, § 1), Tennessee (TENN. CONST art. I, § 5; TENN. CODE ANN. § 2-19-143 (1985), § 40-20-112 (1990)), Utah (UTAH CONST. art. IV, § 6), Virginia (VA. CONST. art. II, § 1; VA. CODE ANN. § 24.1-42 (Michie 1985)), Washington (WASH. CONST. art. VI, §§ 1, 3), and Wyoming (WYO. STAT. ANN. § 6-10-106 (Michie 1977)).
154. In addition to losing the right to vote, those convicted of crimes suffer a whole range of other civil disabilities, from the right to serve on a jury, to the right to hold public office, to parental rights. These laws vary widely from state to state (in no state is the number of disabilities zero) as do the procedures by which one's rights are restored. In some, rights are automatically restored after prison, parole or probation while in others restoration comes only after explicit pardon by the governor or state legislature. See OFFICE OF THE PARDON ATTORNEY, CIVIL DISABILITIES OF CONVICTED FELONS: A STATE-BY-STATE SURVEY (1992); Burton et al., supra note 5, at 54-58.
155. See Burton et al., supra note 5, at 54-55.
156. 471 U.S. 222 (1985).
157. See id. at 229-32.
158. See id. at 233.
159. 418 U.S. 24 (1974).
160. Id. at 41-56. Section 2 of the Fourteenth Amendment reads in relevant part: "[W]hen the right to vote . . . is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced . . . ." U.S. CONST. amend. XIV, § 2 (emphasis added).
161. Arguments have been made that the Court's decision in Richardson is flawed on the constitutional question itself. See, e.g., David L. Shapiro, Mr. Justice Rehnquist: A Preliminary View, 90 HARV. L. REV. 293, 303 (1976) ("[T]here is not a word in the [F]ourteenth [A]mendment suggesting that the exemptions in section two's formula are in any way a barrier to the judicial application of section one in voting rights cases, whether or not they involve the rights of ex-convicts."). Disenfranchisement has also been criticized on Eighth Amendment grounds. See, e.g., Gary L. Reback, Note, Disenfranchisement of Ex-Felons: A Reassessment, 25 STAN. L. REV. 845, 858-60 (1973). The constitutional question is secondary for my project, however, as I am more interested in the theoretical foundations of the practice of disenfranchisement.
162. Arguments have been made that the Court's decision in Richardson is flawed on the constitutional question itself. See, e.g., David L. Shapiro, Mr. Justice Rehnquist: A Preliminary View, 90 HARV. L. REV. 293, 303 (1976) ("[T]here is not a word in the [F]ourteenth [A]mendment suggesting that the exemptions in section two's formula are in any way a barrier to the judicial application of section one in voting rights cases, whether or not they involve the rights of ex-convicts."). Disenfranchisement has also been criticized on Eighth Amendment grounds. See, e.g., Gary L. Reback, Note, Disenfranchisement of Ex-Felons: A Reassessment, 25 STAN. L. REV. 845, 858-60 (1973). The constitutional question is secondary for my project, however, as I am more interested in the theoretical foundations of the practice of disenfranchisement.
163. In 1875, the Supreme Court did actually reject the claim, made on behalf of women, that voting was connected to citizenship. See Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875). The Court stated that the "Constitution, when it conferred citizenship, did not necessarily confer the right of suffrage." Id. at 177. This conclusion flowed from the "separate sphere" argument regarding women's correct place in society: Motherhood, not political participation, was thought to be the appropriate activity of a woman. This confirms the thesis that suffrage is the sign of membership in the political community. Women were not extended the right to vote because they were not considered to be a part of that community. See Sandra Day O'Connor, The History of the Women's Suffrage Movement, 49 VAND. L. REV. 657, 658 (1996); Jennifer K. Brown, Note, The Nineteenth Amendment and Women's Equality, 102 YALE L.J. 2175, 2178-81 (1993). Furthermore, Minor is in conflict with Ex parte Yarbrough, also known as the Ku Klux Klan Cases, which "made it clear that the right to vote . . . is a privilege of national citizenship derived from the Constitution." United States v. Original Knights of the Ku Klux Klan, 250 F. Supp. 330, 353 (E.D. La. 1965) (citing Ex parte Yarbrough, 110 U.S. 651 (1884)).
164. In 1875, the Supreme Court did actually reject the claim, made on behalf of women, that voting was connected to citizenship. See Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875). The Court stated that the "Constitution, when it conferred citizenship, did not necessarily confer the right of suffrage." Id. at 177. This conclusion flowed from the "separate sphere" argument regarding women's correct place in society: Motherhood, not political participation, was thought to be the appropriate activity of a woman. This confirms the thesis that suffrage is the sign of membership in the political community. Women were not extended the right to vote because they were not considered to be a part of that community. See Sandra Day O'Connor, The History of the Women's Suffrage Movement, 49 VAND. L. REV. 657, 658 (1996); Jennifer K. Brown, Note, The Nineteenth Amendment and Women's Equality, 102 YALE L.J. 2175, 2178-81 (1993). Furthermore, Minor is in conflict with Ex parte Yarbrough, also known as the Ku Klux Klan Cases, which "made it clear that the right to vote . . . is a privilege of national citizenship derived from the Constitution." United States v. Original Knights of the Ku Klux Klan, 250 F. Supp. 330, 353 (E.D. La. 1965) (citing Ex parte Yarbrough, 110 U.S. 651 (1884)).
165. See, e.g., Sam Andrews' Sons v. Mitchell, 457 F.2d 745, 749 (9th Cir. 1972) ("Any person within the United States, citizen or alien, resident or non-resident, is protected by the guarantees of the Constitution.").
166. At one point during the nineteenth century, 22 states or territories actually did grant the right to vote to aliens, a practice that continued in some places until 1926. See Jamin B. Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage, 141 U. PA. L. REV. 1391, 1397-417 (1993).
167. 377 U.S. 533 (1964).
168. Id. at 565.
169. Id. at 567.
170. 405 U.S. 330 (1972).
171. Id. at 336.
172. 356 U.S. 86 (1958) (plurality opinion).
173. Id. at 87 (plurality opinion). Trop had been gone for less than one day and willingly surrendered when met by an army vehicle while walking back in the direction of his station. See id. at 87-88 (plurality opinion).
174. See id. at 101 (plurality opinion). In dicta, the Court distinguished denationalization from disenfranchisement on the ground that the latter is permissible as a "nonpenal exercise of the power to regulate the franchise." Id. at 97 (plurality opinion) (citing Davis v. Beason, 133 U.S. 333 (1890); Murphy v. Ramsey, 114 U.S. 15 (1885)).
175. Id. at 92-101 (plurality opinion).
176. See Afroyim v. Rusk, 387 U.S. 253, 267-68 (1967). This rule extends only to citizenship procured lawfully; naturalization obtained through fraud or other illegal means may be stripped. See id. at 267 n.23; Knauer v. United States, 328 U.S. 654, 673-74 (1946).
177. See supra text accompanying note 145.
178. 380 F.2d 445 (2d Cir. 1967).
179. Id. at 451.
180. 327 F. Supp. 71 (N.D. Ga. 1971).
181. Id. at 73.
182. For similar criticisms of the policy justifications for disenfranchisement, see Note, supra note 12, at 1302-03.
183. This justification is also constitutionally questionable given the Supreme Court decision in Carrington v. Rash, which declared that "'fencing out' from the franchise a sector of the population because of the way they may vote is constitutionally impermissible." 380 U.S. 89, 94 (1965); see also Dunn v. Blumstein, 405 U.S. 330, 355-56 (1972).
184. Cf. Richardson v. Ramirez, 418 U.S. 24, 79 (1974) (Marshall, J., dissenting) ("[D]isenfranchisement provisions are patently both overinclusive and underinclusive. The provision is not limited to those who have demonstrated a marked propensity for abusing the ballot by violating election laws.").
185. For a detailed elaboration of the two philosophical arguments used to justify disenfranchisement, see Note, supra note 12, at 1304-09.
186. Shepherd v. Trevino, 575 F.2d 1110, 1115 (5th Cir. 1978) (emphasis added).
187. Green v. Board of Elections, 380 F.2d 445, 451 (2d Cir. 1967) (quoting JOHN LOCKE, AN ESSAY CONCERNING THE TRUE ORIGINAL, EXTENT AND END OF CIVIL GOVERNMENT ¶ 89 (1698)).
188. Id.
189. 605 F. Supp. 802 (M.D. Tenn. 1985).
190. Id. at 813 (emphasis added).
191. FOUCAULT, supra note 92, at 90.
192. Id.
193. JOHN LOCKE, TWO TREATISES OF GOVERNMENT 394 (Peter Laslett ed., Cambridge Univ. Press 1988) (1690).
194. JEAN-JACQUES ROUSSEAU, ON THE SOCIAL CONTRACT 65 (Roger D. Masters ed. & Judith R. Masters trans., St. Martin's Press 1978) (1762) (emphasis added). Similarly, Locke writes: In transgressing the Law of Nature, the Offender declares himself to live by another Rule, than that of reason and common Equity, which is that measure God has set to the actions of Men, for their mutual security: and so he becomes dangerous to Mankind, the tye, which is to secure them from injury and violence, being slighted and broken by him. LOCKE, supra note 163, at 272.
195. See, e.g., Ruffin v. Commonwealth, 62 Va. (21 Gratt.) 790, 796 (1871) ("[D]uring his term of service in the penitentiary, [a prisoner] is in a state of penal servitude to the State. . . . He is for the time being the slave of the State."). In at least one instance, disenfranchisement was (unsuccessfully) challenged as a violation of the Fifteenth Amendment on the theory that imprisonment was a "'previous condition of servitude.'" See People v. DeStefano, 212 N.E.2d 357, 361 (Ill. App. Ct. 1965) (quoting U.S. CONST. amend. XV).
196. Price v. Johnston, 334 U.S. 266, 285 (1948).
197. Coffin v. Reichard, 143 F.2d 443, 445 (6th Cir. 1944).
198. See FOUCAULT, supra note 92, at 90; cf. text accompanying notes 92-93.
199. FOUCAULT, supra note 92, at 90.
200. Id.
201. The line between social contract theory and republicanism is in fact not so clear. Rawls himself writes that "justice as fairness as a form of political liberalism has no fundamental opposition" to civic republicanism. RAWLS, POLITICAL LIBERALISM, supra note 9, at 205. Civic republicanism simply renders the exclusionary tendency in liberalism even more explicit. See Frank Michelman, Law's Republic, 97 YALE L.J. 1493, 1495 (1988) (arguing that republicanism is tainted with "legacy of excluding from the political community all those whose voices would . . . threaten disruption of a community's normative unity").
202. The line between social contract theory and republicanism is in fact not so clear. Rawls himself writes that "justice as fairness as a form of political liberalism has no fundamental opposition" to civic republicanism. RAWLS, POLITICAL LIBERALISM, supra note 9, at 205. Civic republicanism simply renders the exclusionary tendency in liberalism even more explicit. See Frank Michelman, Law's Republic, 97 YALE L.J. 1493, 1495 (1988) (arguing that republicanism is tainted with "legacy of excluding from the political community all those whose voices would . . . threaten disruption of a community's normative unity").
203. RAWLS, POLITICAL LIBERALISM, supra note 9, at 205. Rawls defines the political virtues as "the virtues of fair social cooperation such as the virtues of civility and tolerance, of reasonableness and the sense of fairness." Id. at 194.
204. RAWLS, POLITICAL LIBERALISM, supra note 9, at 205. Rawls defines the political virtues as "the virtues of fair social cooperation such as the virtues of civility and tolerance, of reasonableness and the sense of fairness." Id. at 194.
205. RAWLS, A THEORY OF JUSTICE, supra note 9, at 315.
206. See supra note 103.
207. 75 Ala. 582 (1884).
208. Id. at 585 (emphasis added).
209. See supra text accompanying note 80.
210. The origin of Section 2 of the Fourteenth Amendment suggests that there is a strong connection between the practice of disenfranchisement and feelings of insecurity on the part of the body politic; after all, it was passed in the wake of America's most profound domestic crisis, the Civil War.
211. In recognizing that both the opinions on disenfranchisement and liberal theory function to protect society's standards from contestation, my argument differs dramatically from that in the Note cited above. See Note, supra note 12. Its author makes similar observations to mine about the "true impulse" behind disenfranchisement. But the author fails to recognize that the exclusionary impulse afflicts liberal theory as well. In fact, the author cites Rawls in arguing that disenfranchisement runs counter to liberal principles. See id. at 1306. Bid see id. at 1306 n.35 (noting Rawls's reference to "certain generally recognized exceptions" to universal suffrage discussed supra in note 109). In essence, the author does what I have argued liberalism itself does: displace blame for the "dissonance" of disenfranchisement onto the practice itself, shielding liberalism from blame. My argument is that the existence of disenfranchisement stems from a problem immanent to liberalism, from an ambivalence in the theory itself.
212. Justice Marshall, dissenting in Richardson, came close to recognizing the depoliticizing implications of disenfranchisement when he wrote: "The ballot is the democratic system's coin of the realm. To condition its exercise on support of the established order is to debase that currency beyond recognition." Richardson v. Ramirez, 418 U.S. 24, 83 (1974) (Marshall, J., dissenting).
213. FRANK TANNENBAUM, CRIME AND THE COMMUNITY 19-20 (1938).
214. As if the connection between disenfranchisement and the defense of society's norms were not clear enough, the earliest Supreme Court decisions on disenfranchisement appealed directly to a threat against society's moral standards. See Davis v. Beason, 133 U.S. 333, 341 (1890) (upholding disenfranchisement for violation of laws against bigamy and polygamy because "[t]o extend exemption from punishment for such crimes would be to shock the moral judgment of the community"); Murphy v. Ramsey, 114 U.S. 15, 45 (1885) (describing marriage as "best guaranty of that reverent morality which is the source of all beneficient progress in social and political improvement" in upholding disenfranchisement for bigamy and polygamy).
215. As I have argued repeatedly in this Note, the displacement of blame prevents introspection on the part of society into the cause of dissonance or the justifiability of its exercises of power. This dynamic can be seen in society's general response to crime. As William Connolly notes, the spread of crime in America rarely provokes introspection or arguments for the reform of society's institutions: "Rather, it constantly renews the cry for law and order, or, when that cycle has exhausted itself, for the rehabilitation of delinquents." William E. Connolly, Discipline, Politics and Ambiguity, 11 POL. THEORY 325, 332 (1983). An ambivalence similar to the one I have discussed in the paradox of disenfranchisement, between toleration and exclusion, can also be seen in the recent welfare reform act, particularly in its provisions taking away benefits from legal immigrants. See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, §§ 400-51, 110 Stat. 2105, 2260-77.
216. RAWLS, POLITICAL LIBERALISM, supra note 9, at 337-38 (emphasis added).
217. RAWLS, A THEORY OF JUSTICE, supra note 9, at 576 (emphasis added).
218. American legal discourse, obviously, does not rely explicitly on the so-called second aspect of the reasonable; as I have attempted to show, however, the two aspects of the reasonable are implicit in this discourse.
219. Cf. RAWLS, POLITICAL LIBERALISM, supra note 9, at 10 (describing task as "appl[ying] the principle of toleration to philosophy itself"). I am indebted to David Peritz for suggesting this phrase.
220. It is beyond the scope of this Note to argue that Rawls's theory could sustain these changes, although I believe it could. It suffices here only to suggest a direction in which one might take Rawls's theory in order to address the problems analyzed in Part I. I should note, in addition, that I do not think that the changes for which I have argued in the idea of the reasonable would necessitate a major revision of the original position itself, or of its outcome (i.e., the two principles of justice as fairness discussed supra in note 21). The purpose of the original position would remain the selection of principles that are "reasonable for everyone to accept and therefore . . . justifiable to them." RAWLS, POLITICAL LIBERALISM, supra note 9, at 49. The changes would, however, require Rawls to be more sensitive to the roles that ideal and nonideal theory play in his overall argument; this is more appropriately done in the constitutional and legislative stages.
221. Introducing the fact of dissonance into the constitutional and legislative stages of Rawls's argument, where the veil of ignorance is thinner but still present, would require the parties to engage in a process of self-reflection that would likely result in the elimination of such illiberal practices as disenfranchisement. The parties, authors of the criminal law, would know that crime is inevitable in any society, no matter how well-ordered, but would not know whether upon lifting the veil of ignorance they would be criminals, victims, or unaffected by crime. The structure of the theory would allow tor consideration, not only of those who inevitably fail to "fit," but also of those harmed by such dissonant individuals, thus giving full meaning to the idea of reciprocity in justice as fairness. See supra text accompanying note 184. It would force the parties to consider what some theorists have called "the other." See, e.g., William Connolly, The Dilemma of Legitimacy, in LEGITIMACY AND THE STATE 222, 241 (William Connolly ed., 1984) ("The quest for legitimacy must open itself to the voice of the other; it must review itself from the vantage point of conceptualizations it finds alien, questions it tends to ignore, and answers it tends to exclude.").
222. EMILE DURKHEIM, THE RULES OF SOCIOLOGICAL METHOD 98 (Steven Lukes ed. & W.D. Halls trans., 1982) (1938) [hereinafter DURKHEIM, THE RULES OF SOCIOLOGICAL METHOD]. I do not wish to suggest that I am in agreement with Durkheim's analyses of crime and punishment as a whole. His argument that punishment serves a positive function as an "integrating element" reinforcing society's moral consciousness is clearly inconsistent with my approach in this Note. See EMILE DURKHEIM, THE DIVISION OF LABOR IN SOCIETY 57 (W.D. Halls trans., 1984) (1933). I seek instead to differentiate Durkheim's view of the functionality of punishment, with which I disagree, from his analysis that suggests crime is an ineliminable component of any society, with which I agree.
223. EMILE DURKHEIM, THE RULES OF SOCIOLOGICAL METHOD 98 (Steven Lukes ed. & W.D. Halls trans., 1982) (1938) [hereinafter DURKHEIM, THE RULES OF SOCIOLOGICAL METHOD]. I do not wish to suggest that I am in agreement with Durkheim's analyses of crime and punishment as a whole. His argument that punishment serves a positive function as an "integrating element" reinforcing society's moral consciousness is clearly inconsistent with my approach in this Note. See EMILE DURKHEIM, THE DIVISION OF LABOR IN SOCIETY 57 (W.D. Halls trans., 1984) (1933). I seek instead to differentiate Durkheim's view of the functionality of punishment, with which I disagree, from his analysis that suggests crime is an ineliminable component of any society, with which I agree.
224. DURKHEIM, THE RULES OF SOCIOLOGICAL METHOD, supra note 190, at 101 (emphasis added).
225. Id. (emphasis added).
226. Id. Durkheim uses the term "collective sentiments" instead of "power." Id.
227. Id. Durkheim uses the term "collective sentiments" instead of "power." Id.
228. Id. at 102. Conversely, when the incidence of crime or punishment rises above a "normal" level - when for example, one in three black men between the ages of 20 and 29 is either in prison or jail, on probation or on parole, see MARC MAUER & TRACY HULING, THE SENTENCING PROJECT, YOUNG BLACK AMERICANS AND THE CRIMINAL JUSTICE SYSTEM: FIVE YEARS LATER 1 (1995) - society should not escape serious reflection on its own norms by displacing all blame for dissonance onto the individual.
229. Id. at 102. Conversely, when the incidence of crime or punishment rises above a "normal" level - when for example, one in three black men between the ages of 20 and 29 is either in prison or jail, on probation or on parole, see MARC MAUER & TRACY HULING, THE SENTENCING PROJECT, YOUNG BLACK AMERICANS AND THE CRIMINAL JUSTICE SYSTEM: FIVE YEARS LATER 1 (1995) - society should not escape serious reflection on its own norms by displacing all blame for dissonance onto the individual.
230. DURKHEIM, THE RULES OF SOCIOLOGICAL METHOD, supra note 190, at 102.