Constitutionally Unprotected: Prison Slavery, Felon Disenfranchisement, and the Criminal Exception to Citizenship Rights

Jennifer Rae Taylor, Constitutionally Unprotected: Prison Slavery, Felon Disenfranchisement, and the Criminal Exception to Citizenship Rights,47 Gonz. L. Rev. 365 (2011)

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At first glance, the Ninth Circuit’s recent decisions in Farrakhan v. Gregoire, affirming that the criminally convicted may be legally deprived of the right to vote, and Serra v. Lappin, concluding that American prisoners may be forced to work for no pay, seem inconsistent with the American values and freedoms so often thought to be codified in this nation’s Constitution. In fact, as this article asserts, these outcomes are made possible by historical flaws inherent in that very document, introduced during a period when racial subjugation and exploitation were values many sought to protect. Understanding this history is vital to explaining—and correcting—these contemporary judicial outcomes.

Through the mid-nineteenth century, the vast majority of blacks in America were slaves, human chattel imported from Africa beginning before the United States existed. Ironically, at the time the Declaration of Independence was written—which, of course, declared “all men” to be created equal and inspired the American colonies to separate themselves from their oppressive English rulers—African slaves in the territory were bought and sold like property.

More than eighty years later, Supreme Court Chief Justice Roger B. Taney’s infamous 1857 opinion inDred Scott v. Sandford gave judicial endorsement to what had long been practical reality: black people possessed “no rights which the white man was bound to respect.” They were not, and could not be, national citizens entitled to the rights and recognition accorded the title.

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