Follow our coverage of the Amy Coney Barrett confirmation hearings this week.
Judge Amy Coney Barrett’s regressive views on abortion rights are well known. She has called abortion “always immoral,” and if confirmed, would be a reliable vote to overturn Roe v. Wade. Less well known, however, is her belief that a person’s virtue should determine their eligibility for basic civil rights like the right to vote.
Barrett, who is President Donald Trump’s nominee to fill Ruth Bader Ginsburg’s Supreme Court seat, doesn’t just want to go back to the pre-Roe 1970s; she also wants to drag voting and political rights back to the Jim Crow era.
In a dissent she wrote last year in Kanter v. Barr, Barrett argued for limiting participation in political rights for people not deemed “virtuous.” What Barrett conveniently left out of her argument is that all of her historical legal examples were used to disenfranchise women, people with disabilities, and people of color.
In Kanter, a two-judge majority of a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit ruled it was reasonable for Rickey Kanter to lose his Second Amendment right to own a gun after his conviction for felony mail fraud. Barrett dissented. The majority found that the writers of the Constitution meant for Second Amendment protections to belong only to “virtuous” citizens, arguably excluding anyone convicted of a felony, whether violent or nonviolent.
Unfortunately, the two-judge majority’s use of “virtue” as a qualification for accessing Second Amendment rights left the door open for Barrett to argue for the application of “virtue” to other constitutional rights. Rather than limit her dissent to the case in front of her, Barrett wrote an overreaching opinion that argued for limiting citizens’ rights to vote and serve on juries.
Barrett noted that historically, states deprived people of voting rights and jury service if they had certain “infamous crime” felony convictions, but she failed to mention that this was a particular tool used to disenfranchise Black people in the Jim Crow South after the Civil War. Although many states had “criminal disenfranchisement” laws in place before the war, felon disenfranchisement was expanded after the passage of the 13th, 14th, and 15th Amendments to include more crimes and therefore disenfranchise more people.
This application of “virtue” restrictions on voting persists today: In many states, people convicted of certain felonies are still stripped of their right to vote, even as many states expand programs to re-enfranchise people convicted of felonies. Barrett further argued that historically, voting and jury service could be limited based on a “mental fitness” requirement, essentially supporting ableist restrictions on people’s voting rights based on mental disabilities.
But women, people of color, non-Christians, and people with disabilities didn’t need a felony conviction to be denied voting rights, entry to the United States, the right to serve on a jury, or even the right to testify in court on the basis of insufficient virtue or morality. Women weren’t legally allowed to vote until the passage of the 19th Amendment in 1920, and it wasn’t until 1975 that the Supreme Court ruled that women could be drafted into jury service just as men. White, Christian, able-bodied men were assumed to have sufficient moral virtue for political life, while people of color, women, non-Christians, and people with disabilities, were required to prove their morality and mental fitness to access their political rights.
For many crimes, women had to be virtuous in order for a man to be held accountable. The crime of rape or seduction could only be committed against a “pure” woman whose virtue was intact. If the woman wasn’t considered virtuous, 19th- and early 20th-century laws didn’t see her as a rape victim. Black women in particular rarely got justice for crimes of sexual violence because courts didn’t view them as having Christian “virtue” to lose. The stereotype of the oversexualized Black woman meant courtrooms didn’t take their testimony or pain seriously. Sexual moral virtue was also used to keep Chinese American women from entering this country as a result of the Page Act of 1875, which barred admittance for any Chinese woman suspected of being a sex worker.
Virtue and believability in court were linked to white, Christian values. In the 19th century, Jews were asked extra questions to prove their trustworthiness before being allowed to testify under oath. New York courts required a non-Christian witness to be sworn “according to the peculiar ceremonies of his religion” after 1829, but even with this accommodation courts asked separately whether such oaths were binding on a Jewish person’s conscience. Jewish people didn’t get the same benefit of the doubt as Christian witnesses. Some courts even questioned if believing in Jesus Christ was necessary for a witness to be believed under oath. Many courts had to rule separately that Jews were “competent” witnesses after they were challenged for their lack of Christian faith.
In the first half of the 19th century, many courts didn’t even allow nonwhite people to testify against white men accused of a crime. A number of states had laws barring Black or mixed-race people from testifying against white men. The California Supreme Court ruled in 1854’s People v. Hall that Chinese immigrants couldn’t testify against white citizens and threw out the conviction of a white man found guilty of murdering a Chinese man based upon the testimony of Chinese witnesses. By prohibiting Chinese immigrants from testifying against white people, the court suggested that Chinese immigrants couldn’t be trusted based on bigoted assumptions that their moral values were different from those held by white, Christian Americans.
This is the ugly history of the sort of virtue jurisprudence that Barrett advocates. Her focus on stripping rights from people who aren’t virtuous enough for her liking ignores one of the critical questions noted by the majority in Kanter: whether the state has a reasonable interest in denying people access to their Second Amendment rights. When the state strips someone of that right, it is doing so out of concern for public safety—to keep guns away from possibly violent people. But what is the state’s interest in keeping “non-virtuous” people from voting or from serving on juries? Except for discriminatory purposes, the state has no such interest.
Rather than determine whether a state has a reasonable interest in barring entire classes of people from exercising a right, Barrett justified her argument by placing voting and jury service on a lower rung of citizenship guarantees. According to Barrett, people serve on a jury and vote not because they have the right to do so but because it is for the collective good. This argument might have worked in the 19th century, but it is now 2020, and we have decades of legislation and jurisprudence that shows such limitations result in discrimination, biased jury verdicts, and nondemocratic elections.
Barrett’s argument in favor of “virtue” requirements for participating in the political process is antithetical to an inclusive democracy. A U.S. citizen shouldn’t be required to prove “virtue” in order to access their rights. Her reasoning is also an insult to the legacy of Ruth Bader Ginsburg, whose seat Barrett has been nominated to fill. Ginsburg, who wrote a scathing dissent in Shelby v. Holder—the 2013 case that gutted the Voting Rights Act—was a champion for voting rights.
Amy Coney Barrett is not.