Liberties and privileges

In the United States, the right to vote is nowadays affirmed as a basic right of all people, not a privilege granted by an indulgent state.

William Galston has posted an inquiry into the philosophical roots of the new crop of Republican-initiated voter suppression laws and rules at The New Republic. He says they aim to change our understanding of this basic right. Voter ID requirements that will be especially burdensome to poor and aging voters, additional hoops added to registration procedures, and cut backs in early voting periods all spring from a view of the franchise that is very different from that which most United States people embrace.

Last year, Minnesota House Speaker Kurt Zellers said, “I think [voting is] a privilege, it’s not a right. Everybody doesn’t get it because if you go to jail or if you commit some heinous crime your [voting] rights are taken away. This is a privilege.”

This claim rests on an obvious confusion. Anybody who believes in the Declaration of Independence will affirm that liberty is among our inalienable rights. Nonetheless, certain sorts of crimes are thought to warrant incarceration, which is a deprivation of liberty. Does that transform liberty from a right into a privilege? Of course not.

The real logic is different. Our society presumes (as some do not) that all human beings are equal in their possession of both human and civil rights and that the burden of proof in restricting those rights must be set very high. Some people argue that no reason is compelling enough to override the right to life, for example, which is why the death penalty will always be a contentious issue.

Hardly anyone makes that argument about liberty, which is why life sentence without parole is widely regarded as a legitimate substitute for the death penalty. Without the ability to deprive some law-breaking citizens of their liberty, our entire justice system would come crashing down. But no one thinks that turns liberty into a privilege.

Voting is much the same. All citizens are presumed to be equal in their right to vote. Yes, most felons do forfeit their right to vote, at least temporarily. (We argue about whether permanent forfeiture is legitimate, even after felons have “paid their debt to society.”) But if we take the equal right to vote seriously, we must not pass laws that implicitly treat voting as a privilege some are fitter than others to enjoy.  To confuse that right with a privilege is to change the understanding of American citizenship, and not for the better.

My emphasis.

Because I am working on a campaign that would replace the death penalty with a sentence of life in prison without possibility of parole, I've had to think hard about what values ought to underly our legal system.

I am profoundly convinced that all of us have a right to expect justice that works -- and that a tough system that keeps people who commit terrible crimes in prison is something that law-abiding citizens deserve. At the same time, we want a justice system that ensures that the state never risks executing an innocent person. We know mistakes are possible. We can never be certain that we have not killed an innocent person so long as the death penalty is possible.

In the debate over the death penalty, we confront, along with daunting waste and cost concerns, quite fundamental questions about how our society can ensure more authentic justice for all. It doesn't surprise me that Galston goes to this issue when looking for analogies to the interplay of inalienable rights with privileges. The discussions do have a lot in common.

The history of liberty in the United States has been about the gradual expansion of voting rights from a few propertied men to nearly everyone. This expansion is part of our gut understanding of what our liberty means in this country. It is a terrible thing to see Republicans willing to undermine fundamental liberties -- to make participation in elections more difficult for people who might vote against them -- in order to win partisan advantage.