“Disenfranchisement is the harshest civil sanction imposed by a democratic society… Such a shadowy form of citizenship must not be imposed lightly.”
– McLaughlin v. City of Canton, 947 F. Supp. 954, 971 (S.D. Miss. 1995).
By Jordan G. Sisco
July 2021 marks the 50th anniversary of Virginia’s 1971 constitutional revision.
Since that time, the commonwealth has changed dramatically, even as the principles upon which the Constitution rests were established centuries ago in 1776. Among the most fundamental of these principles is expressed in George Mason’s Virginia Declaration of Rights, now enshrined in Article I, Section 6 of Virginia’s Constitution. That section provides: “all men, having sufficient evidence of permanent common interest with, and attachment to, the community have the right of suffrage.”
At the time Mason wrote that provision, Virginia restricted the right to vote to White property-holding men (i.e., freeholder suffrage). He and the framers of Virginia’s first Constitution assuredly did not conceive of a Virginia where men and women of all races would be vested with the franchise. But the genius of Article I, Section 6 is in its inherent flexibility. Indeed, Mason wrote Article I, Section 6 with the understanding that successive generations of Virginians would be empowered to define who would be included in their own political communities.
Even in 1776, freeholder suffrage was not a foregone conclusion. Mason himself consistently sought to expand the suffrage beyond traditional property requirements. At the 1776 constitutional convention, Mason unsuccessfully sought to extend suffrage to all “housekeepers” with three or more children.
Years later, at the 1787 federal constitutional convention, George Mason gave a rousing speech rejecting his colleagues’ attachment to the “ancient prejudices” of freeholder suffrage. Invoking Article I, Section 6, he suggested that there was no better evidence of one’s interest in the community than parenthood, arguing that “the Father of a Family has this interest—his Children will remain—this is a natural interest—a Farm & other property is an artificial interest.”
And in an essay written in 1791, Mason argued that it is “the Duty of Freemen — a Duty which they owe to themselves, to their Country, to their Children, and to Generations yet unborn — to watch over, and guard this sacred and inestimable Right of Suffrage.” He further suggested that whenever any portion of this “fundamental and precious Right of Suffrage shall be so far undermined… as to leave the Name or Shadow of it only to the People, or to any particular Part of the People; from thence forward, such people will possess only the name and Shadow of Liberty; which without Substance, is not worth preserving.”
Mason cogently understood the role constitutions have in defining community. And in each of his major writings regarding the extent of the franchise, he pointed to children as providing evidence of “attachment to the community.” That is, Mason understood that constitutions speak not only to the present generation, but to future ones, too. In Mason’s view, the present generation was to be a steward for successive ones.
The long career of Article I, Section 6 illustrates this. While the section has operated both as a weapon of racially-motivated disenfranchisement in Virginia’s 1902 Constitution, and a symbol of “truth and justice” to those communities who have long-fought for access to the franchise, since 1971 the commonwealth has been broadly democratic.
Even so, Virginia retains one of the strictest felon disenfranchisement clauses in its Constitution. The commonwealth remains an outlier among states, according to the ACLU, in automatically disenfranchising felons until the governor or other governmental body restores such rights. The effect of this provision has been to substantially disenfranchise Black Virginians. As of 2016, an estimated 7.8 percent of Virginia’s voting-age population is disenfranchised, while nearly 22 percent of all Black Virginians are disenfranchised.
By constitutionally establishing such disenfranchisement, the people of Virginia have made a choice about who belongs. If Virginians are to be stewards of their political community, they must square with the message automatic felon disenfranchisements sends: that felons, even those who have served their sentences, are not full members of the community. The 50th anniversary of Virginia’s 1971 Constitution seems an apt time for such reflection. We cannot continue to constitutionally enshrine a shadow citizenry. Virginia’s Declaration of Rights commands no less. As Mason might say, “it is [our] duty to watch over, and guard this sacred and inestimable Right of Suffrage.”
Jordan Sisco is a third-year law student at the University of Virginia, where he serves on the editorial board of the Virginia Law Review and as a research assistant for Professor A. E. Dick Howard. Prof. Howard served as the executive director of the Commission for Constitutional Revision for the Constitution of Virginia in 1971.