Does a law’s provenance matter?

I never thought I’d defend a Jim Crow law, but here goes.

In a ruling on Wednesday, August 24, 2022, the federal 5th Circuit Court of Appeals upheld a section of Mississippi’s state constitution that bars people convicted of certain felonies from voting (read story here).

The 5th Circuit handles appeals of decisions by federal district courts in Mississippi, Louisiana, and Texas, and is widely regarded as the most conservative of the federal appeals courts.

In its ruling, the court acknowledged the restriction was enacted in 1890 to disenfranchise voters convicted of “black crimes” while maintaining voting rights for those convicted of “white crimes.” In 1950 and 1968, state voters added “white crimes” to the disqualifying list, so the court concluded the section “no longer operates in a racist manner.” (See story here.)

I’m skeptical of any claims that Mississippi has put its notorious past behind it and is free of racism today. I don’t trust those white guys down there. And while I’m not sympathetic to anybody who’s committed a serious crime, I’m aware that most experts who study felon disenfranchisement support restoring voting rights as a way to reintegrate ex-felons into society and reduce crime by giving them a stake in a democratic system based on rule of law. And if something works, I’m generally for it.

Plus, if you think about it, continuing to punish convicted criminals after they’ve done their time doesn’t make much sense. Doing it by prohibiting them from voting makes even less sense, and given the makeup of Mississippi’s prison population (67% a black, details here, whereas 38% of the state population is black), I’m suspicious there’s no racial motive. It’s hard to prove, though, because many states restrict felon voting rights; it’s simply a common practice.

Before I leave that subject, I want to point out one more thing. The 1968 amendment occurred just after passage of the 1965 federal Voting Rights Act, and in the immediate aftermath of the 1960s civil rights struggles, when Mississippi was still a very racist state. But if a racist state caved in, and made its voting laws less racist in response to outside pressure, does that make it a bad law? It certainly doesn’t make it the amendment a racist law.

What I really want to talk about here is whether the intent behind a law should even matter, if the law itself passes muster. What if bad people enact a good law? Should it be thrown out just because the legislators who enacted it were rascals? If you’re of the mind that all politicians are slimy, and many people do think that way, do you want the laws against stealing your car or burglarizing your house to stay on the books anyway?

Courts generally won’t delve into a law’s history unless its wording is ambiguous, in which case judges may refer to legislative history to ascertain what the legislature intended. But if the wording is clear (e.g., “taking a car without permission is theft”), judges won’t look under the hood. That’s pretty standard in American law everywhere.

So, we don’t care that the people who enacted Section 241 of the Mississippi constitution in 1890 and amended it in 1968 were racist pricks. All we care about is whether it discriminates against black people today. In 1965, a federal civil rights commission concluded that including some crimes and not others had the intent, purpose, and effect of doing just that. So the voters changed it to include the “missing” crimes. The 5th Circuit concluded that fixed it.

I guess that means it’s not a Jim Crow law anymore; or, at least, you could argue it isn’t, so you don’t have to defend a Jim Crow law.

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