FELONS AND VOTING: So Attorney General Eric Holder, perhaps reflecting that most felons tend to vote Democratic, thinks that felons should be allowed to vote. Former Attorney General Michael Mukasey thinks that felons shouldn’t vote.

Let me suggest that the real problem is that we have too many felons, because too many crimes have been designated as felonies. Traditionally, felonies were very serious crimes, for which the death penalty was common. The justification for loss of civil rights, like voting, was that though you were being allowed to live, your crime — rape, murder, etc. — was sufficiently serious that it separated you from civil society. That can’t be maintained where today’s rather promiscuous designation of felonies is concerned. Personally, I think there should be — and, in fact, are, though not presently recognized by the courts — limitations on what can be designated a felony under the Due Process Clause. I may write something on this someday, but in the meantime I would refer readers to the discussion of malum in se vs. malum prohibitum in my Ham Sandwich Nation piece as a starting point.