Abstract

The Maryland State Constitution states that its General Assembly may, "regulate or prohibit the right to vote of a person convicted of infamous or other serious crime or under care or guardianship for mental disability." In a single sentence, the link between criminality and mental disability is invoked in order to draw an internal boundary around those who can take part in the project of representative government. Through a close reading of one particular moment in the history of Maryland's disenfranchisement provisions, I show how these restrictions could buttress prevailing racial hierarchies. Delegates to Maryland's nineteenth century constitutional conventions explicitly understood disenfranchisement as a practice that managed the boundaries of full citizenship through the courts' power to determine criminal guilt and mental competence. In defining "exceptions" to the franchise, the delegates were additionally shoring up the increasingly unstable conception of whiteness. The figure of the "free negro" was persistently invoked to do this work, marked through criminality and insanity as civically disabled in order to both reduce the threat that s/he posed to the standing of white workers and to shore up the purity of whiteness itself as innocent, able, and fit to rule. In so far as disenfranchisement is an instrument of racial oppression, it continues to operate racially not just in spite of color-blind liberalism, but also precisely through its ability to disarm claims of racial animus. The norms that drove the adoption of disenfranchisement in the nineteenth century continue to ground these exclusions to the vote, meaning that the ideal figure of the American citizen continues to be compulsorily white, male, heterosexual, and able-bodied. Ending this legacy of social and political hierarchization requires that we remove disenfranchisement provisions, but also move beyond the logic of inclusion, divesting the vote as a location that finalizes, essentializes, and fixes the boundaries of the polity.

The Maryland State Constitution enfranchises any person over the age of eighteen who has proven residency and registered to vote, though it specifies the General Assembly may "regulate or prohibit the right to vote of a person convicted of infamous or other serious crime or under care or guardianship for mental disability." In the same breath, the provision links criminality with mental disability by delineating an internal boundary between those who can and cannot take part in the project of representative government. The disenfranchisement of criminals and persons under guardianship are cited as specific exceptions to the franchise, yet these provisions are hardly exceptional. In 48 states, there is some restriction placed on persons convicted of criminal offenses. 1 In 39 states, there is some sort of restriction based on cognitive disability. 2 And, in most cases, these two forms of disenfranchisement are authorized or enacted within the same provision, if not — as in Maryland — within the very same sentence.

The exclusion from suffrage of criminals and "mentally disabled" persons was established primarily during the mid-nineteenth century, a period of tremendous political, economic, and social upheaval. In response to the problems secessionist movements posed, every state in the Union made substantial alterations to franchise restrictions. 3 Such restrictions, often referred to as civic disabilities, were shaped by changing conceptions of criminality, disability, and race during that period. Understanding the meaning of such disabilities and the ways in which they continue to define and maintain the racial boundaries of the American polity requires attention to the way lingering notions of disability, criminality, and race shape each other in concert.

Through a close reading of one particular moment in the history of Maryland's disenfranchisement provisions for any "person convicted of larceny or other infamous crime" and for "lunatics and persons non compos mentis," I show how these restrictions could buttress prevailing racial hierarchies. Delegates to Maryland's nineteenth century constitutional conventions explicitly understood disenfranchisement as a practice that managed the boundaries of full citizenship through the courts' power to determine criminal guilt and mental competence. In defining "exceptions" to the franchise, the delegates were additionally shoring up the increasingly unstable conception of whiteness. The figure of the "free negro" was persistently invoked to do this work, marked through criminality and insanity as civically disabled in order to both reduce the threat that s/he posed to the standing of white workers and to shore up the purity of whiteness itself as innocent, able, and fit to rule.

In so far as disenfranchisement is an instrument of racial oppression (and intersects with other forms of oppression), it continues to operate racially not just in spite of color-blind liberalism, but also precisely through its ability to disarm claims of racial animus. It is neither intentional nor accidental that U.S. jails and prisons have once again become Jim Crow asylums, filled primarily with persons of color, a shockingly high number of whom are mentally ill, and nearly all of whom are stripped of the vote. The openly racist, sexist, and ableist norms that drove the adoption of disenfranchisement in the nineteenth century continue to ground these exclusions to the vote, meaning that the ideal figure of the American citizen continues to be compulsorily white, male, heterosexual, and able-bodied. To bring an end to this legacy of social and political hierarchization that remains in disenfranchisement provisions of all forms, we must, I argue, both remove all disenfranchisement provisions, effectively including the millions of persons who are currently stripped of their vote, but also move beyond the logic of inclusion, and rethink the vote itself, working to divest it as a location that finalizes, essentializes, and fixes the boundaries of the polity.

Part one of this paper places my analysis within the broader context of disability studies, and insists that understanding disenfranchisement as a "civic disability" itself underscores the limits of the social model of disability and requires that we turn instead to the model of "critical disabilities studies." The reason for this is made clear in part two, which sets the historical stage for my reading of the Maryland debates. Over the course of the nineteenth and early twentieth century, the ideas of blackness, criminality, and mental disability were brought into close connection, mutually supporting each other under a regime of biopolitics. Importantly, these three ideas required each other in order to make sense. Part three gives a limited reading of the debates of Maryland's 1864 Constitutional Convention, demonstrating how suffrage exclusions were central to the production of whiteness as civic ability, through the affinities described in part two. But more importantly, it shows how the production of this ability/disability pair was only possible through naturalizing contingent difference. The paper closes by questioning the dangerous assumptions that it could be possible, given such a history, to successfully identify the "proper" terms of exclusion or inclusion. Instead, I ask how we should think about "the vote" itself, and question the sufficiency of aggregative modes of democratic practice. These four parts move together to argue that both our politics and our analysis must embrace a critical "both/and" approach. This is true both with respect to the case at hand (the specific genealogy of disenfranchisement provisions in Maryland) and to the status of disability theory, moving beyond (rather than simply against) the social model.

As Brenda Brueggemann has succinctly noted, disability is so puzzling and yet also so powerful because, "Disability stabilizes most in its instability. The definition of disability always begins (and probably ends, too) in its ambiguity, in its indeterminate boundaries." 4 As will be seen below in my reading of the 1864 Debates of the Maryland Constitutional Convention, understanding disability in this way can help us understand how a seemingly stable white polity can be purchased through the instability of legal, judicial, and popular judgments about the limits of otherwise unstable designations of civic disability.

1. The (in)stability of disability and civil exclusion

Taking the fundamental instability of the normative order as an analytic starting point is characteristic of the critical disabilities studies movement, and other post-structuralist approaches to social and political practices. 5 As Robert McRuer puts it, this approach "emerges from cultural studies traditions that question the order of things, considering how and why it [the order of things] is constructed and naturalized; how it is embedded in complex economic, social, and cultural relations; and how it might be changed." 6

Critical disability studies emerged as a response to the shortcomings of the "social model" of disability which argued (counter to medical and biological accounts of disability) that, "it is society which disables people with impairments, and therefore any meaningful solution must be directed at social change rather than individual adjustment and rehabilitation." 7 The social model rests on the separation of the fact of "impairment," a defect of an organ or mechanism of the body, and the production of a "disability," the disadvantage caused by social organization that ignores impairments. 8 This distinction between a fact of "nature" and its social and cultural form is directly analogous to the sex/gender distinction, frequently embraced in structuralist and "second-wave" feminist accounts of gender. 9 From the point of view of the social model, "disability is not a medical or personal problem but a set of physical and social barriers that constrain, regulate and discriminate against people with impairments." 10 As such, disability is by definition a form of exclusion and unjust social oppression against persons who are impaired. 11

As Iris Young notes, the social model has been incredibly powerful for grounding the civil rights claims of disabled persons, "because it shifts attention on issues of justice for people with disabilities from the 'needs' of people with disabilities to others who assume that a certain background of structures and practices is given." 12 Proponents of the social model therefore have focused their attention on the institutions and practices that have systematically excluded impaired persons from cultural, social, and political life, demanding that such persons should be enabled through inclusion, dismantling both formal and informal barriers to participation in all spheres of life. This has manifested itself in a broad endorsement of political inclusion of multiple forms of difference, drawing on the work of political theorists who have described how political commitments of equality can easily ignore, suppress, and marginalize difference to construct a "political space" devoid of the very pluralism that defines humanity. 13

While the social model is surely correct to identify disability as a product of diverse social practices, it has nevertheless dangerously reified impairment as "some objective, transhistorical and transcultural entity which biomedicine accurately represents," according to Shelley Tremain. 14 In its very attempt to escape the determinism of medical and individualist models of disability, the social model's strict separation between impairment and disability subscribes to what Tremain calls a "realist ontology" that presumes that the descriptions of impairments are value-neutral, in order to ground the claims for inclusion made by persons disabled by social, political, and economic institutions and practices. But as Tremain notes, "it seems politically naïve to suggest that the term 'impairment' is value-neutral, that is, 'merely descriptive', as if there could ever be a description which was not also a prescription for the formulation of that to which it is claimed innocently to refer. Truth-discourses which purport to describe phenomena contribute to the construction of their objects." 15

The critical disability studies movement challenges the returns to essentialism that so have so often characterized progressive social movements, which insist upon the "biological," "natural," or "given" fact of difference as a ground for claiming greater social rights. Nevertheless, a critical-theoretical approach to disability does not deny the materiality of the world and of bodies, but instead notices how the materiality of the world is always already interpreted through discursive regimes of power/knowledge. As Tremain describes the "foundational" quality of "impairment" under the social model, "The testimonials, acts, and enactments of the disabled subject are performative insofar as the allegedly 'natural' impairment that they are purported to disclose, or manifest, has no existence prior to or apart from those very constitutive performances." 16

Drawing on Foucault's nominalism and Butler's account of performativity, this approach forces us to note that it is through discursive practices such as disenfranchisement that the meanings of lunacy, non compos mentis, idiocy, or mental impairment can be naturalized and fixed. At one level, the restriction of voting rights for mentally impaired persons is a paradigmatic case for the social model, showing precisely how an impairment (e.g. lunacy or idiocy) is transformed into a disability through formal exclusion (a specifically civic disability). At a deeper, level, however, the social model risks inscribing difference as fixed rather than contingent, or asserting lunacy or idiocy as natural facts rather than contingent deployments of power/knowledge.

If we accept the point of view of the social model, mental disability continues today to be produced in part by continuing exclusions for persons deemed mentally incompetent to vote, and as such, reveals the disenfranchisement of mentally impaired persons as a form of oppression. The social model thus pushes towards political inclusion, but it nevertheless fails to account for the ways in which impairments themselves are produced. From the point of view of the social model, the disenfranchisement of criminals and the mentally incompetent can be read as the moment when an impairment is converted into a disability. When constitutional delegates exclude these persons from the vote, they do so by identifying an essential character that marks them as lacking the ability to take part in government, marking them as impaired. This means that these impairments are not themselves produced, but instead are facts upon which disability is produced. This could lead us to claim that the delegates simply misidentified some persons as impaired who are not, just as they also misidentified all women, blacks, and foreigners as impaired. That is, the social model too easily displaces the difference it seeks to explain onto form of difference taken to be "natural." This would be to assume, just as the delegates did, that all the disenfranchise-able impairments are empirical and natural facts about persons.

This approach is insufficient because, as will become clear in my reading of the debates, each and every one of these possible "impairments" were themselves discursively produced concomitant with the civic "disability" of disenfranchisement. Insofar as the social model helps us to understand disenfranchisement as a disability separate from and laid out over an underlying empirical impairment, it also, however, leads us to understand a wide variety of political markers (criminality, race, gender, etc.) as impairments, and ascribes foundational and essential qualities to these categories as well—precisely what proponents of the social model sought to avoid in their critique of the medical/individual models of disability. 17 As Tremain puts it, "Impairment has been disability all along." 18

2. Figures of Dependency: Blackness/Criminality/Idiocy

While there has been increasing attention paid to disenfranchisement both of criminal offenders and of persons declared mentally incompetent (especially since the contested 2000 U.S. Presidential election), most of this attention has focused on either one exclusion or the other. The majority of accounts of the disenfranchisement of "mentally incompetent" persons have centered on the voting rights of the elderly, and this issue has been treated as either a medical 19 or legal question. 20 That there has been so little attention paid to the discursive connection between felon disenfranchisement and the disenfranchisement of "mentally incompetent" persons is surprising, not only because, as noted above, the exclusions frequently occur within the same sections of legal code, but also because the exclusion of one group is often used to defend the exclusion of the other. 21 For instance, in two lower-court decisions upholding disenfranchisement, the courts bolstered their rulings with explicit comparisons between the two groups. In Shepherd v. Trevino, the Fifth Circuit Court stated that: "A state properly has an interest in excluding from the franchise persons who have manifested a fundamental antipathy to the criminal laws of the state or of the nation by violating those laws sufficiently important to be classed as felonies. … Such persons have breached the social contract and, like insane persons, have raised questions about their ability to vote responsibly. 22 And in Kronlund v. Honstein, the U.S. District Court for Northern Georgia ruled that:

A State has an interest in preserving the integrity of her electoral process by removing from the process those persons with proven anti-social behavior whose behavior can be said to be destructive of society's aims. For this reason, a State may prohibit idiots and insane persons, as well as, those convicted of certain offenses from participating in her elections. A State may also legitimately be concerned that persons convicted of certain types of crimes may have a greater tendency to commit election offenses. 23

Alongside this juridical connection, it is worth noting that the highest rates of mental illness in the U.S. are found not inside hospitals, but inside jails and prisons. As state run mental institutions run out of funding, the criminal justice system has become the nation's de facto mental health institution. By 2006, more than half of the country's inmates had documented mental health issues. 24 A report issued by the National Sheriffs' Association in May 2010 stated that there are now "three times more seriously mentally ill persons in jails and prisons than in hospitals." 25 In Arizona and Nevada, the odds of a seriously mentally ill person being in jail versus a hospital are nine-to-one. 26 The Sheriff's report concluded that the U.S. is in the same place it was during the 1840s, when inadequate treatment of incarcerated mentally ill persons in jails and prisons helped launch a reform movement that established a state hospital system. 27

The suffrage restrictions put into place in the nineteenth century must be read through the increasingly tight nexus established between these terms, made possible by a dramatic redefinition of race through discourses of criminality and disability that occurred in the nineteenth and early twentieth centuries. Our understandings of race, ability, and criminality are enabled by one another through a triangular relationship of meaning, in which the specific "threat" posed by disability and criminality were threats of racial degeneration. That these groups have been systematically marked for exclusion from the franchise is hardly surprising, given that they have each been figured as fundamentally and statically unable to care for themselves, to take part in collective rule, and to participate in self-government.

Over the nineteenth century, argues Ladelle McWhorter, the concept of "race" could transform from a marker of primarily morphological difference to one of biological difference by linking notions of phenotype to rapidly changing theories of disability and criminality. 28 In the process, whiteness itself could be established through the ruthless identification of all forms of abnormality as instances of "arrested development." On the account developed by French medical and psychiatric authorities in the early 1820s, "idiocy" was no longer considered a disease or illness, but instead reflected a stable and heritable lack of human development. 29 This notion made its way to the U.S. at least by the middle of the nineteenth century by way of American doctors and social reformers who studied in France and relied extensively on their authoritative accounts. 30 When Samuel Gridley Howe, a notable social reformer and strident abolitionist, delivered his report on "Idiocy" to the Massachusetts Legislature in 1848, he identified the French conceptions of idiocy as "under-development" as some of "the most acceptable definitions" available. His own definition went further, defining idiocy as "that condition of a human being in which, from some morbid cause in the bodily organization, the faculties and sentiments remain dormant or underdeveloped, so that the person is incapable of self-guidance, and of approaching that degree of knowledge usual with others of his age." 31 The key terms of his definition — relative age, underdevelopment, an incapacity for self-guidance, and some undetermined "morbid cause" — all indicate a person utterly dependent and incapable of rule over her or his own life. The bulk of Howe's report focused on how "morbid causes" of idiocy were heritable, markers of an "idiot's" parents "sins" against nature. 32 An individuals' arrested development was entirely transmittable, discernible in racial degeneration:

So a race of men, abusing the power of procreation, may rush on in the path of deterioration until, arrived at a certain point, a new principle develops itself, the procreating power is exhausted, and that part of the human family must perish, or regain its power by admixture with a less degenerate race. 33

By the end of the nineteenth century, the logic of arrested development and the dangers of hereditary pollution could be transposed to the bodies of morphologically raced individuals. 34 Development could vary both within and between human races, accounting for infinite variations among persons based on their relative degree of human faculties. As McWhorter puts it, "Racial difference was, essentially, developmental difference. Appearance was simply a manifestation of a development process. Members of 'lower' races and sub-races bore the stigma of arrested development just as criminals and mentally deficient individuals did." 35

The dubious link between cognitive disabilities and societal danger had been well established by the middle of the nineteenth century in Isaac Kerlin's definition of the moral idiot:

The degenerate offspring of an intemperate or otherwise offending parent. His cognitive disability involved impairment of the moral faculty … If not appropriately disciplined and trained, the moral idiot was likely to be a thief and a liar, an arsonist, and possibly even a murderer. 36

Or, as Howe put it, such persons were destined to be criminals because they lacked a fundamental ability to follow any law or prohibition, stemming from their arrested cognitive development. Moral idiocy was "that condition in which the sentiments, the conscience, the religious feeling, the love of neighbor, the sense of beauty, and the like, are so far dormant or underdeveloped, as to incapacitate the person from being a law unto himself, in any thing like the degree which is usual with others of his age. … Idiots of this character are not to be found in our almshouses, but they are often found in our prisons." 37 Such moral idiots were thus dangerous not only because they were certain to violate the law, but also because of the heritability of their "criminal" traits; they would pollute an otherwise healthy population with their "morbid conditions."

Statistical evidence was thought to easily "confirm" this relationship. As Charles Henderson argues shortly after the turn of the century:

There can be no doubt that one of the most serious factors in crime statistics is found in the conditions of the freedmen of African descent, both North and South. … The primary factor is racial inheritance, physical and mental inferiority, barbarian and slave ancestry and culture, "two hundred and fifty years of unrequited toil" (Lincoln), sudden and unprepared change of economic and political status. 38

Any statistical difference in criminal rates between whites and blacks following the civil war was explainable through heritable "race traits" that marked Blacks as underdeveloped moral idiots, rather then, as W.E.B. Du Bois had noted, the dramatic change in the application of a criminal justice system to a population that had previously been "policed" through the slave system. 39 The link between crime and blackness that had been supported largely by popular conception up until reconstruction, could now be "demonstrated" by statistical evidence, effectively "writing race into crime," as Khalil Muhammad has described it, making, "blackness … a more stable racial category in opposition to whiteness through racial criminalization." 40

Throughout the nineteenth century and into the twentieth, by various techniques and modes of knowledge, criminality, disability, and blackness were drawn together in mutually supportive discourses. Indeed, these three groups were mutually implicated as fundamentally dependent, but in a way that also always sought to manage whiteness as an unstable category of superiority and privilege. As developmentally arrested, and therefore naturally non-autonomous, persons marked as criminal, idiotic, or black were assumed to be unable to work or even think independently, and therefore could not take part in the practice of self-government. This is the point that Howe insists upon in noting the absurdity of allowing "idiots" near the ballot box:

The persons put down in this report, as simpletons … are persons the highest of whome should be considered unable to take any responsibility, to contract matrimony, or to vote. … Several cases have occurred where the taxes were paid for simpletons, and they voted—until the opposite party showed that they had a greater number of fools whom they could qualify and bring to the polls, and then the poor creatures, who had been used to violate the purity of the ballot and to defraud an election, were thrown aside in contempt. 41

These "poor creatures" could be identified as permanent children by virtue of their arrested development, and therefore fit paternal rather than political forms of rule. Twenty years after Kerlin introduced his theory of "moral idiocy," he revised it as a "radically incurable" condition of "juvenile insanity" 42

To demonstrate how these tightly knit discourses of race, crime, and disability have been deployed to shore up the boundaries of the polity, I turn to the recorded debates of the 1864 Constitutional Convention in Maryland as an exemplary instance to observe how the figures of permanent and incurable criminality and lunacy were embedded rhetorically in the body of the "free negro," justifying a continuation of paternalistic and despotical rule. The delegates who drafted, debated, and adopted these qualifications and exclusions to the franchise were self-consciously deliberating on the notions of rule and equality. In this sense, I read the debates rhetorically rather than definitively, and discursively rather than determinatively. 43 In what follows, I offer a representative sampling of these debates that focuses on the internal logic of two "problems" faced by the delegates who drafted the 1864 Constitution for Maryland: the problem of the elective franchise and the problem of "free negroes" in the state following emancipation. While the delegates treated these two problems separately, they mutually informed each other, and ultimately shed light on how white citizenship could be stabilized as capable through the figures of criminality, blackness, and disability. The delegates, in restricting the franchise simultaneously through a series of uncontested qualifications and a set of specific disqualifications, produced the very categories of (dis)qualification that could negatively define their own subjectivities. In so far as forms of these disqualifications continue to exist today in disenfranchisement provisions, they necessarily force us to reckon with the continuing work of these exclusions in producing and maintaining the normal American citizen.

3. Maryland's 1864 debates concerning suffrage exclusions.

None other than Alexis de Tocqueville praised Maryland for their early embrace of "universal" suffrage by 1810, when the state dropped its stiff property requirement, limiting suffrage to "every free white male Citizen of this State above twenty-one yeas of age" who could establish their residency. 44 The Constitution of 1851 retained these qualifications, but for the first time identified a pair of exclusions to the elective franchise, permanently stripping the voting rights of any person "convicted of larceny or other infamous crime, unless he shall be pardoned by the Executive." The same section further held that no persons "under guardianship as a lunatic or as a person non compos mentis" would be allowed to vote. 45 While the 1864 Constitutional Convention was notable for abolishing slavery in Maryland, the delegates never considered extending the franchise to women or non-whites: the words "male" and "white" both remained in the 1867 Constitution as well, and were not formally removed from the constitution until 1971 46 (as the 15th and 19th Amendments to the US Constitution were assumed to have modified these terms). 47

The major restriction of the franchise introduced in 1864, however, focused squarely on the Civil War. All persons who had served in the "so-called Confederate States of America" or who had given "aid, comfort, countenance or support to those engaged in hostility to the United States" were stripped of the vote. Election judges were empowered to demand that any prospective voter swear under oath that he had always been loyal to the Union. The only substantive alteration to the elective franchise made in the subsequent 1867 Constitution was to remove this provision, which had effectively disenfranchised most Democrats. 48

The exclusion of rebels, criminals and "lunatics" adopted in 1864 was based on the qualification for voting that had remained unchanged since 1810. The debates centered on new exceptions that would be applied to persons already otherwise qualified to vote: free, white, male, residents of the State who were twenty-one or older. For each exception, delegates produced a knowledge of "stable" markers that fixed unflattering race and gender characteristics to rebels, criminals, and "lunatics" that could demonstrate such a potential voter's incapacity to take part in collective self-government, privileging the capacity of a male, mentally "able," white citizen with the authority to judge over his own life and thereby the life of the polity.

3.1 "No person who has at any time been in armed hostility to the United States…"

Only the first of these exceptions, rebel soldiers and sympathizers, was challenged wholesale by any of the delegates, chiefly by the vastly out-numbered Democrats. A general amnesty for rebels had been ordered by the Governor for all soldiers who laid down their arms, which meant that rebels could not be punished as criminals. Disenfranchisement, the minority opposition decried, was in fact one of the highest forms of punishment available: "Can you conceive of a higher degree of punishment, short of taking a man's life, than to declare him forever disqualified from holding any office of profit or trust in the State, and of closing against him forever the ballot box, making him a mere cypher in the community where he lives, stripping him of every political right" (Edelen, 1273)? 49 This did not, however, mean that disenfranchisement was not a fitting punishment for real criminals who had been convicted as such. "The deprivation of the right to exercise the elective franchise," the same delegate continued, "is one of the punishments which you inflict upon a man by reason of having committed and been convicted of an infamous crime. It is a punishment. You proposed today to bar against a man the doors of every office, and to deprive him of the right to vote, without an opportunity of being heard in his defence" (Edelen, 1273). The problem was not in restricting the franchise to punish offenders, it was deciding which offense warranted such punishment.

Despite having received amnesty, former rebels remained under suspicion. Absent disenfranchisement, the delegates asked, what would prevent these "unconvicted criminals" from "com[ing] back here to accomplish by his votes what he fails to accomplish in arms" (Stockbridge, 1274)? These persons, the delegate insisted, have "committed a crime compared with which the men in you penitentiary are innocent and angels of light. They have not been convicted; yet the fact is as well known as if you had had the verdict of a thousand juries" (Ibid., 1274-1275). At best, the act of rebellion signified a loss of reason and right thinking by the rebels, rendering them unable to exercise the franchise toward their own will. Striping rebels of the franchise was an, "act of kindness," precisely because they had demonstrated an inability to care for themselves:

We are acting kindly to these people. We are acting towards them the part of the considerate parent who keeps edge tools out of the hands of his children, and the public authorities who keep them out of the hands of lunatics and insane persons. … We are acting kindly towards these people in preventing them from the use of a franchise or privilege which they would use for their own destruction, and the destruction of others until they return to their reason (Scott, 1278).

The act of rebellion either marked someone as thoroughly criminal or as childlike, insane, and underdeveloped in the use of reason, despite the amnesty made available to rebels and rebel sympathizers.

3.2 "… convicted of larceny or other infamous crime…"

The second exclusion considered in the debates, that of all "persons convicted of larceny or other infamous crime," remained unchallenged. The only substantial question considered was what crimes would be considered "infamous." The fact of infamy, one delegate reminded the assembly, "revealed" the offender to be morally deficient or underdeveloped:

Infamy, in a general sense, is the condition of a person who is regarded with contempt and disapprobation by the generality of men on account of his vices. But in a legal sense, it is the state of one who has been lawfully convicted of a crime, followed by a judgment, by which he has lost his honor. … The consequences of infamy, are the loss of political rights, and incapacity to testify as a witness (Edelen, 1295). 50

Offenders convicted of infamous crimes and larceny were marked by the specifically deceitful character of such crimes, and taken to be felonious in their very natures. The fact of having served one's time in the penitentiary, while it might be able to discharge the crime, need not discharge one's criminality:

An infamous offence is the kind of felony which characterizes the party with entire turpitude. If a man is convicted and sent to the penitentiary he ought not to be allowed to associate at the ballot-box with those people who have not been legally convicted. I think the door ought to be held open to every such man to reform; but if he does reform let there be an act of equal solemnity with that which sent him to the penitentiary, to restore him" (Sterling, 1290).

Of course, there is no such act, since a person's "entire turpitude," was not something that can be removed. Criminals must be excluded from the franchise even after their sentences were over, as the completion of the sentence did not necessarily alter the criminal character of the man in question, now indisputably proven and known through a legal conviction.

3.3 "… no lunatic, or person non compos mentis"

As in the previous two cases, the work of establishing lunacy was the work of stabilizing the identity of the lunatic so as to render him unfit to judge in his own case and therefore for the polity. Delegates maintained, "it is manifest that lunatics and idiots are incapable of determining how they shall vote, and will only be made tools of by interested persons" (Thurston, 1297). As such, there was no controversy over the existing provision disenfranchising any persons presently "under guardianship," since guardianship relied on a legal determination of mental incompetence.

However, the extension of the franchise to all white workingmen made guardianship practically ineffective as a means of determining ballot-box competency, since mentally incompetent white men who did not own property were highly unlikely to have guardians or have been declared a lunatic. Mirroring the fear over "unconvicted felons," there was a widespread concern that, "There are ten times as many lunatics not under guardianship as are under guardianship" (Thurston, 1297), meaning that, "all lunatics will be entitled to vote who has not a guardian" (Berry, 1296). By removing the "under guardianship" clause from the provision, delegates sought to rely on "common reputation" to stabilize the character of white lunatics and exclude them from the ballot-box.

Still there needed to be some reliable authority that could determine the common reputation of a voter. The task fell to election judges. Defenders of the "common reputation" standard insisted that determining lunacy was no more difficult than confirming a prospective voter's age or residency. Insisting that if election judges were competent to establish these qualifications, they were surely competent to judge "all such questions equally affecting the right of a party to vote" (Berry, 1298), insisting on a categorical equivalence between lunacy, age, and residence. Other delegates countered that moving away from the certainty offered by the "guardianship" standard was a dangerous policy, not only because it would open the process to political abuse, 51 but moreover because judges might be insufficiently expert to determine mental competency, and outright incompetent to do so. 52 First, even if they could accurately determine age or residency these attributes were far more stable than something like insanity because, "A man may be a lunatic and have sane intervals" (Stirling, 1296). Second, because there are "different degrees of lunacy or insanity" they felt it would be impossible to "fix a rule to exclude the insane or lunatics from voting…. One man would argue that a certain person was incapable of voting, because he was a lunatic, while others would insist that the person was sane. It would be an endless question" (Scott, 1298, emphasis added). In all of these instances, the looming threat remained that someone could essentially steal suffrage by impersonating a sane, white, male voter.

3.4 "…the state of fact in which a man is…"

Insofar as the exclusion of rebel soldiers and of criminals relied in part upon the same fundamental question of mental ability and thereby an authority to decide in one's own case and thereby for the polity, the inability to stabilize lunacy bleeds through these other categories and destabilizes them. The boundary of the elective franchise was being drawn expressly based on a series of certain knowledges about the moral character of persons. In each debate, the question of the franchise was decided by evaluating knowledge about others in terms of its kind (common, expert, judicial) and its stability. At the level of general qualifications, some markers taken to be both completely stable and perfectly knowable: those of race or gender. These exclusions were taken for granted and adopted with neither controversy nor discussion. Other markers appeared readily discernible if less stable: residency and age. These qualifications required sanctioned authority vested in election judges. The remaining exclusions were far less reliable, as reflected in the specific concerns of the delegates.

For rebel soldiers and criminals, some specific performance had to occur in order to establish with certainty about the person's fitness (or lack thereof) to cast a vote: a loyalty oath for soldiers, a legal conviction for larceny or other "infamous" crime for criminals. In both cases, this stability was necessarily purchased at some risk. The "real" rebel could make a false oath, willingly perjuring himself (itself a disenfranchise-able offense). The infamous criminal might avoid capture or leave the penitentiary without having "truly" reformed. The back and forth on the particulars of pardons, of how these rebels and these criminals might be able to remove the moral stain of their past actions, became a central concern. Yet in each and every exclusion and qualification, these markers are all reducible to knowledge of the person. Or, to put it more bluntly:

Suffrage implies acquiescence in the result of the ballot; and if a man simply wishes to use the ballot-box as a machine to aid an armed revolution, he is not in a condition to vote, any more than the insane man in the hospital. If he does not hold himself amenable to the authority of the government, it does not concern him, and he is not in a condition to exercise the right of suffrage. All these provisions are simply to ascertain, in this civil tumult, the state of fact in which a man is (Stirling, 1743, emphasis added).

The case of lunatics and idiots was more troubling on these terms, apparent in the hesitations of many delegates to rely on "common reputation" to determine lunacy. But there was no hesitation to banning a white man placed under guardianship by the court, a man known through a judicial proceeding to be mentally incompetent, to cast a vote. In their desire to shore up the boundary of a stable and knowable polity, to ensure that only those who they could be absolutely certain about who could cast a vote, they reached and grasped for strategies to manage the fundamental instability, insecurity, and unknowability of their fellow citizens as equals: in common reputation, in criminal convictions, in the de lunatic inquirendo, and in loyalty oaths. They relentlessly sought "the state of fact" of those suspect white men, in the vain hope that such facts could put an end to the "endless question." For there to be any semblance of an internal coherence between insanity, rebellion, and criminality, each term had to be capable of doing the exclusionary work for the other. Rebels were disenfranchised because of their criminal character and their affinity with insanity, criminals for the permanent stain of felonious deceit, and the lunatic because they, like the rebels and criminals they were tied to, could not rule over their own lives. But as was finally apparent in the case of lunacy, the "endless question" opened up again, sustainable only in so far as one could be certain, grounded in an empirical referent outside of these exclusions. Elsewhere in the debates, the delegates deployed just such a referent, captured in their obsession with the problem of the "free negro," a figure that was known, certain, and without doubt, indelibly connected in the delegates' minds to the specters of criminality, insanity, and as a result civic dependency. 53

3.5 the "degraded character of free negroism"

Since only "free white men" made up the electorate to begin with, it is not surprising that there was hardly any discussion of race or slavery during the debates over disenfranchisement of rebels, criminals, and lunatics. It was presumed that the specific exclusions for rebels, criminals, and lunatics were exceptions amongst free white men. Nevertheless, the "problem of free negroes" in the state had already been a source of major anxiety in the decades leading up to the war, and loomed in the background throughout of the 1864 convention. 54 By the 1830s, numerous agencies were already pressuring free blacks to leave the state. During that time, the State Colonization Society was established by the legislature, "to employ the funds collected in Maryland for the removal of the free negro population." 55 Throughout the 1850s and early 1860s, the General Assembly passed resolutions barring slaves and "free negroes," from assembling for religious purposes, owning dogs or guns, from being educated, restricting their physical movement and job prospects, and finally, ordering a census of all "free Negroes in this State." 56 By 1860, there were more free blacks in Maryland than in any other state in the Union, largely by virtue of voluntary manumission, a practice the General Assembly banned57 The 1851 constitutional convention explicitly took the question of emancipation off the table, declaring that there would be no attempt made during the convention to end "the relation of Master and Slave." By 1864, following a Unionist takeover of the General Assembly in the 1863 elections, the question of emancipation and the subsequent "problem" of what to do with "free negroes" came to a head.

While they differed in their assessments of the severity and origins of the "negro problem," both pro- and anti-slavery factions understood the fact of free blacks in the state to be a problem. The affinities between "free negroes" and figures of moral, mental, and material dependency were invoked whenever the "negro problem" was discussed through specific references to the prevalence of insanity, idiocy, and criminality in "free negroes." Even while the fact of slavery was eroding in the years leading up to the war, the category of slave could still delimit citizens and non-citizens. But both the fact and the category of "free negroes" troubled this distinction. Failing to remove them physically from the state, the delegates sought to solve the problems they posed by figuring them as criminals, and associating them with lunacy and idiocy. Such associations could maintain the distinction between those included and those excluded from the polity, reinforcing the categorical exclusion of non-whites (because infamous criminals and lunatics were already well established as unfit for participation in political life), and simultaneously justifying the three exceptions to white suffrage carved out "separately" (by linking such exceptions to blackness).

The delegates therefore sought to establish either the inherent criminality of the "free negro" or his inherent lunacy. They did this by arguing that the criminality and the idiocy of the "free negro" had directly increased the levels of crime and madness in the North, and therefore that it had been slavery that kept these in check in the South. As early as the 1820s, one delegate insisted, the relationship between "free negroes" and crime was established, as the penitentiary, courts, and juries were "overrun" with manumitted slaves: "The people of the State began to be alarmed; they said they were tired of being taxed to support this degraded class who would not work, but would steal, who would go ragged, and idle their time away in squalid beggary, and necessarily become degraded, drunken, worthless criminals" (Jones, 599). The recent census results from 1860, these pro-slavery delegates argued, supported this characterization of "free negroes," showing higher levels of crime, miscegenation, pauperism, insanity, and idiocy in the North, not only among "free negroes" but also in the larger white population (620). 58 The "mental condition of the negro" under slavery was offered as perhaps the strongest proof that slavery was a beneficent institution, as one delegate noted that the ratio of "insane free negroes" to "insane slaves" was seven to one (624). Another delegate was so taken by slavery's ability to suppress not only insanity and idiocy, but also physical impairments, that he placed the following tables into the record:

The effects of the fanatical, religious and politics isms of the North may be seen in the returns of the insane and idiot:
  Free States. Slave States.
Insane……………………………………… 17,864 6,135
Idiotic ……………………………………… 11,160 7,705
The deaf and dumb and blind, afflictions arising from natural causes, are more nearly equalized still, with a Northern preponderance:
  Free States. Slave States.
Deaf and dumb…………………………… 9,722 5,355
Blind ……………………………………… 7,293 5,342

(Dennis, 641)

Even as the delegate notes that physical impairments arise from "natural causes," his inclusion of these numbers implies that emancipation would negatively affect the State. The differing levels of the "moral evils that usually afflict the human family" in the North and the South, are taken to buttress the delegates insistence that "negroes" required slavery to contain their degraded characters, and their preponderance toward criminality and mental incompetence:

Maryland is about to try the experiment of free labor… I do not believe the change proposed will benefit the negro. I believe it will make his condition infinitely worse. Statistics show such to have been the result wherever it has been tried. A free negro population is a curse to themselves and to any community in which they reside (Dennis, 644).

With only a few exceptions, the delegates relied almost entirely on aggregate counts of criminal convictions and cases of insanity/idiocy. Only occasionally did they provide rates or other population-adjusted measures. The delegates ignored that differential rates and counts of criminal convictions and insanity can be readily accounted for by the simple fact that these measures would not actually include the vast majority of non-white persons in the South, since they would seldom be turned over to the courts. Under the slave system, blacks suffered from governance that was already nearly completely despotic.

Yet this was precisely the delegates' point: without a slave system, these rates and counts would immediately skyrocket because the "natural inclinations" of newly emancipated slaves would have no restraint. One delegate quoted extensively from, Free negroism, or results of emancipation in the North, and the West India Islands: with statistics of the decay of commerce, idleness of the negro, his return to savagism, and the effect of emancipation upon the farming, mechanical and laboring classes59 emphatically endorsing the pamphlet's central thesis: "The first cause existing in society of the frequency and increase in crime is the degraded character of the colored population" (Jones, 598). To free slaves would be to relegate them to their "natural inclinations" directly leading to a narrow set of outcomes: crime, pauperism, and even insanity. "Emancipation," another delegate insisted, "is injurious to the negro and to the white races. The natural inclinations of the negro are to idleness, dissipation and vice, and where they are in large numbers, and suffered to follow their natural inclinations, they will relapse into barbarism, and even into idolatry" (Henkle, 625).

Open borders would leave the state "overrun with free negroes," from Washington, D.C. and other Southern cities whose competition for work would drive down wages for white laborers. 60 This question was presented as "a question of political economy, and not at all as involved in the political question of their franchise." (Clarke, 112). But it was of course linked to the question of franchise, insofar as the "free negro" represented a direct challenge to the standing of white workingmen. If they could not be physically removed from the state altogether, then the other strategy for marking their lower standing was to associate them with crimes that demonstrate their lack of standing: specifically, larceny and infamous crimes. Even as a delegate from Baltimore defended "free negro" laborers in the city as "some of the best laborers we have," he offered a dubious qualification: "It is true that they will steal a little at times, but then only a meal of victuals, a ham, or something of that kind" (Abbot, 122). A delegate from the countryside responded directly:

In Baltimore city it is probable that they [free negroes] steal only a little ham and bacon. But then they have their clerks in their stores to watch their property, and they also have their police on the lookout. But in the country we are a little more unfortunate. They steal there something more than a little ham and bacon. They will go off to Washington city and take along with them 15 or 20 or more valuable sheep, and put themselves under the protection of the military authorities. They drive off your horses, and carry off wagon-loads of tobacco; they go into your corn-fields at night and pillage them, and if we are overrun with this class of people, the free negro will have an opportunity to destroy more in the night than the white man can make in the day (Clarke, 122).

"Free negro" laborers therefore represented two threats: they are dangerous both for being good workers and for being untrustworthy thieves. And if one believes that the "free negro" laborer drives down the wages of white laborers (i.e. "steals" jobs and wages that rightfully belong to white laborers), then both dangers can be understood as one specific crime: larceny. Everything that the "free negro" does, because of its very presence outside of the slave system, becomes criminal by definition. Both working for a wage and robbing farms are, in formulation, acts of theft from white men. To the (soon to be) former slaveholders, the very fact of emancipation was a form of state-backed "theft" by their colleagues in the Assembly who refused to compensate them for their lost "property." Such larcenies were easily embodied in the "free negro laborer."

The otherwise ambiguous identity of the "free negro" is can thus be rendered as inherently criminal. In the Maryland debates, this kind of criminal merits exclusion from the franchise as Delegate Clarke would make plain:

If this State shall be overrun by thousands and thousands of these people, you will not only have brought them into competition with the white man, but you may have men getting up before the people of this State, as is now done in the Senate of the United States, where it is proposed to give to negroes in Washington city the right of suffrage; you may have the same proposition made in the State of Maryland, and made an engine of political power. … If they are allowed to come here, and men, for party political purposes, succeed in giving them the elective franchise, and the white men of Maryland become virtually enslaved by the negro voting for and supporting a particular class of white men, it will be one of my proudest memories that pending the consideration of the organic law of the State, I did what I could to preserve the rights and liberties of white men, to keep the rights and liberties of white men under the control of white men; and to keep the labor of white men at such a standard that it could not be brought into competition with free negro labor; and to prevent the bringing down of the white man, if not to a political equality, to at least an economical level with the negro, where, in order to sustain himself and his family, he will be compelled to work upon the same terms with the negro (123).

The delegates were in the process of extending basic "human" rights through emancipation, but they positively refused to extend the rights of citizenship to free blacks in the state, a process that, many of the delegates insisted, was dangerous. Yet at every turn, even the most ardent emancipationists insisted that these persons would be ably handled by the existing forms of state management found in the orphan law, the criminal law, and other forms of legal and economic guardianship. The pro-slavery factions repeatedly insisted that, with emancipation, the standing of the former slave would necessarily "degrade" that of whites and eventually lead to an open conflict, i.e. a race war. "The effect" of allowing the black laborer and white laborer to "work side by side, in almost social and political equality…" Delegate Hinkle declared, "will be to pull down the white man, and there will finally be a struggle between the races" (627).

Even those who saw themselves fighting hardest on behalf of "the humanity of the negro" marked the limit of equality precisely at the point of the political right of participation in self-government. The purpose of emancipation was to achieve the "complete separation of the races" by granting the "negro" human rights, but never political rights:

I am sorry in all cases to see the unwillingness to acknowledge the humanity of the negro. … I believe if there ever comes about what I long for and pray for, a complete separation of the races, it is to come from emancipation and from colonization. Free them, give them equal human rights, the rights of husband and wife and parent. Give the negro the rights of a man, of a husband and father. Give him the right to labor and to receive an equivalent for that labor. Give him the right to educate himself, if he can, and his children. Bring him to the point where he will desire to take a part in the civil government of the land, and let him know that he can never do so; you will have brought him to the point where the emigration of this race will begin in a perfect flood-tide. When he has become sufficiently educated to desire a voice in the government, and finds that there he can never be received as the equal of the white man, it is then that he will seek for himself a new country (Sands, 111).

Emancipation opened the vast question of the status of black people relative to whites, and while whites may have been able to rely on some kind of abstract affirmation of the humanity of black people, neither was 1) the equality of free black labor in relation to white labor, or 2) the political equality of free black men something most could even entertain. Consequently, they displaced both trends through the production of an inherent black mental disability, either through criminality (managing labor) or lunacy (managing the franchise).

The project of emancipation was posited as an expression of white supremacy, of a strict separation between whites and blacks, and ultimately their removal from the state entirely. It was the emancipationists themselves who often turned out to be the strictest guardians of social and political distinction, and who supported the most extensive restrictions on the franchise. They took for granted the proslavery delegates' assertions of an innately criminal character, a powerful affinity with idiocy and lunacy, and a generalized dependency, all of which unquestionably left free blacks incapable of taking part in self-government. They insisted on a foundational affinity between non-whites, categorically excluded from the franchise by virtue of their "obvious" and established inferiority, and classes of white persons who, except by virtue of their revealed natures, likewise demanded political exclusion. Such whites where exceptions to the rule, falling away from the ideal, closer in kind to non-whites. The object of the greatest instability, in the end, was of course whiteness itself, and in the most need of policing.

The nineteenth century practice of disenfranchisement was not only embedded in a discursive milieu in which criminality, blackness, and lunacy supported and reinforced each other as related impairments, but disenfranchisement was also a crucial practice governing these same discourses, stabilizing whiteness as the political norm, and using suffrage as a technique to police those persons who failed to adhere to the norm. The categories of political impairment that were converted to civic disability were far from determinative, given, natural, or transhistorical, but they were made quite real as assemblages of power/knowledge that could stabilize, naturalize, and fix the contingency of human difference.

As a question of participation in democratic government, the franchise has hinged on establishing an ability to take part, signified first through age, whiteness, masculinity, and residency. But these categories, especially whiteness, I've shown, were anything but stable, and have required not only a policing along expressly racial boundaries, but internally as well, through those markers of disability, that were, through their affinity with blackness, able to produce and maintain the category of whiteness as able. The "success" of the delegates to the 1864 convention hinged on the ability to stabilize their exclusions, and it was precisely within the context of the exclusion of "lunatics" and other persons under guardianship that they had the most trouble, where there was the greatest hesitation, because the very question of competency became a part of the problem. Their incompletely successful attempts to stabilize lunacy, criminality, and rebellion as forms of mental incompetence, relied on the assumed fixity of blackness. At the time, this was enough to secure a "normal" (masculine) whiteness, or at least to establish something like an ideal of mental ability that could in turn establish the limits of authority and the right to self-government. But this ideal, as a norm, is stable only in relation to the variation that produced it, and as such, is itself highly unstable, frail, and constantly under "threat." It is not at all surprising, thus, that by the early twentieth century, the security and durability of the "white race" had became a sight of hysterical anxiety in the face of "degenerate races," ultimately underwriting state-backed eugenics programs throughout the country. 61

4. "Crippin'" the voting booth? 62

At one level, the "problem" of disenfranchisement captured in the 1864 debates and which continues to plague us today is that it has been applied inappropriately, excluding persons from full political membership who should not have been excluded. Without doubt, as restrictions against women and non-whites have been removed and the scope of disenfranchisement of criminals or mentally disabled persons have been "modernized," we have moved closer to some notion of "universal" suffrage. But in so far as the project of suffrage continues to focus on expanding the rights and obligations of citizenship to the right persons, the logic of exclusion persists, and the work of subject-formation performed by suffrage proceeds without being fully interrogated. If we are to move beyond treating disenfranchisement as this variety of "problem," then we must be willing not only to move past it, but also to recognize the limits of inclusion. Inclusion, even in an extreme form that draws no boundaries whatsoever on who is allowed to vote, is necessary but insufficient to address the deeper problem revealed by the 1864 debates in Maryland: an overarching desire to fix and stabilize identities in the name of producing a community of equals who are fit to rule over themselves and others. In so far as restrictions on the franchise and the franchise itself support the construction of an idealized and normal citizen, and given the particular history of the franchise in the U.S., we might ask to what extent the "normal" and "ideal" citizen continue to be figured as white, innocent, and able-bodied today.

The true challenge presented by disenfranchisement is to not simply expand the boundaries of the polity by extending the right to vote to all, but to ask why suffrage so effectively does the work of normalizing, fixing, and stabilizing political activity itself. Lennard Davis has shown how the concept of the "normal" emerged during the nineteenth century in part as a solution to resolve what he calls the "paradox of representation" in democratic regimes. 63 Representation assumes both a set of unique individuals and a collective body that can be represented, and the concept of the norm was able to bridge this gap, allowing a group of otherwise different persons to be aggregated and collapsed into a unitary collective projected as a "normal citizen." Voting, therefore, enables us to signify the collective by "representing" what is "normal," rather than a plurality of individual variations. As a result, Davis argues, "Representative democracy is normalcy, or, to try a neologism, normocracy." 64 Such a political constitution would be predicated on the fungibility of human bodies, on the interchangeability of able-bodied citizens that necessarily suppresses difference even as difference is expressly included in the polity.

Disenfranchisement, it must be remembered, is the exclusion of those who would otherwise have be included in the polity, whose full "citizenship" was assumed until they were otherwise deemed to have deviated too far from the norm to be permitted the franchise. Consequently, as the base qualifications for full citizenship have been extended to include non-whites and women, the usage of disenfranchisement has become more important in maintaining the representable normal citizen. Even if barriers to the vote continue to fall, there is no automatic reason to assume that suffrage will not continue to do this normalizing work, demanding that variation be reduced to simplified choices. "In the midst of this system," Davis notes, "the person with disabilities is only one casualty among many. Under normalcy, no one is or can be normal, just as no one is or can be equal." 65 I would readily add "the criminal/felon" to the list of casualties, not simply because this figure is similarly situated as the "disabled," but also because these figures are so often one and the same.

It is telling that Iris Young's own defense of inclusion entails a move away from aggregative theories of democracy. We must instead, she insists, reshape the kind of democratic practices that we engage in. Her critique of aggregative theories of democracy implies that inclusion is only a prior condition of a mode of politics that looks less expectantly at the ballot-box for answers. 66 Not surprisingly, Young endorses a "both/and" position toward the social model of disability and a critical disability studies approach that challenges presumptions of fixed bodily identity. "I would propose," she writes, "that the assertion of a 'postmodern' approach to disability studies not be concerned as a displacement of the social model of disability…. The social model of disability seems necessary for activists to maintain in their arguments with employers, educators, legislators, and judges." 67 But we should also embrace a "skeptical attitude towards any assumptions about persons positioned as disabled as obvious or given, and a determination to fashion a genealogy of such assumptions that will change the way we all look at the social constraints and particular capacities of many people relatively ignored in theories of subjectivity." 68

We must therefore be skeptical of the idea that by simply removing the barriers to the right to vote that continue to plague the U.S., we will also move beyond the notions of criminality and ability that underlie and continue to enforce such barriers. We must confront a political moment in which the radical inclusion of the voices of those precisely thought to have been unfit and unable becomes an opportunity to engage in new political deliberations, overturning fixed notions of subjectivity and ability. The point of including radical forms of difference must never be to suppress, normalize, or marginalize that difference yet again, but to have a kind of inclusion without aggregation or norm, a plurality within political subjects, refusing to allow oneself or others to be fixed or stabilized.

Instead, we should engage in political practice with an eye toward communication with others who are differently situated, even radically so, not for the limited sake of arriving at a consensus or aggregate decision, but instead to open ourselves (even dangerously) to the wonder of new possibilities and instabilities. As Young puts it:

A respectful stance of wonder toward other people is one of openness across, awaiting new insight about their needs, interests, perceptions, or values. Wonder also means being able to see one's own position, assumptions, perspectives as strange, because it has been put in relation to others. … I cannot assume that because last week I understood her standpoint, I can do so today. Respectful listening thus involves attentive and interested questioning. But answers are always gifts. The transcendence of the other person always means that she can remain silent, or tell only part of her story, for her own reasons. 69

Inclusion is necessary but insufficient for this kind of politics. More than simply including others (be they criminals, mentally impaired, or even children and "foreigners") in the right to vote, we must also redirect our politics toward meaningful, respectful, and wondrous engagement with others, precisely if we wish to address systemic injustice, and recognize the dangers of relying on narratives of "fixed" and "given" basic structures of political life.

What we should know by now at least, is that when we note the struggles for certainty that plagued even the delegates to the 1864 convention, we are often not far enough away from them, continuing to ground and fix assumptions of the reasonableness, the goodness, and the able-ness of our selves in order to solidify untenable positions of superiority that deny our own differences and vulnerabilities, our own rebelliousness and criminality, our own impairments and disabilities, and our own practices and selves.

Endnotes

  1. "Felony Disenfranchisement Laws in the United States," (Washington, D.C.: The Sentencing Project, 2008).
    Return to Text
  2. For state-by-state differences and current standards for "mental competency" challenges, see "VOTE. It's Your Right: A Guide to the Voting Rights of People with Mental Disabilities," (Washington, D.C.: Bazelon Center for Mental Health Law and National Disability Rights Network, 2008).
    Return to Text
  3. See Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (New York: Basic Books, 2000).
    Return to Text
  4. Brenda Jo Brueggemann, "Enabling Pedagogy," in Disability Studies: Enabling the Humanities, ed. Sharon L. Snyder, Brenda Jo Brueggemann, and Rosemaire Garland Thomson (New York: Modern Language Association of America, 2002), 319.
    Return to Text
  5. Critical disability studies draws widely on queer theory, radical gender theory, post-structuralist epistemology, theater and literary studies, and performance studies. Any list would be incomplete, and as such I can only identify here some of the work that has been particularly helpful for my own thinking. See Fiona Kumari Campbell, Contours of Ableism: The Production of Disability and Abledness (New York: Palgrave Macmillian, 2009); Shelley Tremain, "On the government of disability," Social theory and practice 27, no. 4 (2001); Shelley Tremain, "On the Subject of Impairment," in Disability/Postmodernity, ed. Mairian Corker and Tom Shakespeare (London: Continuum, 2002); Shelley Tremain, ed. Foucault and the Goverment of Disability (Ann Arboor: University of Michigan Press, 2005); Robert McRuer, Crip Theory: Cultural Signs of Queerness and Disability (New York: New york University Press, 2006); Simi Linton, Claiming Disability: Knowledge and Identity (New York: New York University Press, 1998); Margrit Shildrick, Dangerous Discourses of Disability, Subjectivity and Sexuality (New York: Palgrave Macmillan, 2009); Mairian Corker and Tom Shakespeare, eds., Disability/Postmodernity: Embodying Disability Theory (London: Continuum, 2002); Lennard Davis, Enforcing Normalcy: Disability, Deafness and the Body (London: Verso, 1995); Sharon L. Snyder, Brenda Jo Brueggemann, and Rosemaire Garland-Thomson, eds., Disability Studies: Enabling the Humanities (Modern Language Association of America 2002); Mairian Corker and Sally French, eds., Disabilty Discourse (Buckingham: Open University Press, 1999); Anne Wilson and Peter Beresford, "Madness, Distress and Postmodernity: Putting the Record Straight," in Disability/Postmodernity, ed. Mairian Corker and Tom Shakespeare (London: Continuum, 2002).
    Return to Text
  6. McRuer, Crip Theory: Cultural Signs of Queerness and Disability, 2.
    Return to Text
  7. Colin Barnes, Geof Mercer, and Tom Shakespeare, Exploring Disability: A Sociological Introduction (Cambridge: Polity Press, 1999), 27. For useful overviews of the history of disability studies, see more generally Carol Thomas, "Disability Theory: Key Ideas, Issues and Thinkers," in Disability Studies Today, ed. Colin Barnes, Mike Oliver, and Len Barton (Cambridge: Polity Press, 2002); David L. Braddock and Susan L. Parish, "An Institutional History of Disability," in Handbook of Disability Studies, ed. Gary L. Albrect, Katherine D. Seelman, and Michael Bury (Thousand Oaks: Sage Publications, 2000); Bill Hughes, "Disability and the Body," in Disability Studies Today, ed. Colin Barnes, Mike Oliver, and Len Barton (Cambridge: Polity Press, 2002).
    Return to Text
  8. Barnes, Mercer, and Shakespeare, Exploring Disability, 28.
    Return to Text
  9. Tremain, "On the government of disability," 623-30.
    Return to Text
  10. Hughes, "Disability and the Body," 63.
    Return to Text
  11. See, for instance, Anita Silvers, David Wasserman, and Mary B. Mahowald, Disability, Difference, Discrimination: Perspectives on Justice, Bioethics, and Public Policy (Oxford: Rowman & Littlefield 1998); Iris Marion Young, Justice and the Politics of Difference (Princeton, N.J.: Princeton University Press, 1990); Martha Minnow, Making all the Difference: Inclusion, Exclusion and American Law (Ithaca, NY: Cornell University Press, 1991).
    Return to Text
  12. Iris Marion Young, "Foreward," in Disbility/Postmodernity: Embodying Disability Theory, ed. Mairian Corker and Tom Shakespeare (London: Continuunm, 2002), xiii.
    Return to Text
  13. In particular, proponents of the Social Model routinely point to Iris Young's work. For instance, see Barnes, Mercer, and Shakespeare, Exploring Disability, 80-83,94.
    Return to Text
  14. Tremain, "On the Subject of Impairment," 34.
    Return to Text
  15. Ibid.
    Return to Text
  16. Tremain, "On the government of disability," 632.
    Return to Text
  17. Hughes, "Disability and the Body," 67.
    Return to Text
  18. Tremain, "On the Subject of Impairment," 42.
    Return to Text
  19. Morris M. Klein and Saul A. Grossman, "Voting Competence and Mental Illness," American Journal of Psychiatry 127, no. 11 (1971); PS Appelbaum, "Law & Psychiatry:" I Vote. I Count": Mental Disability and the Right to Vote," Psychiatric Services 51, no. 7 (2000); Jason Karlawish et al., "Addressing the Ethical, Legal, and Social Issues Raised by Voting by Persons With Dementia," Journal of the American Medical Association 292, no. 11 (2004).
    Return to Text
  20. "Note: Mental Disability and the Right to Vote," Yale Law Journal 88(1979); Steven K. Metcalf, "Right to Vote of the Mentally Disabled in Oklahoma: A Case Study in Overinclusive Language and Fundamental Rights," The Tulsa L.J. 25(1989); Kay Schriner, Lisa Ochs, and Todd Shields, "The Last Suffrage Movement: Voting Rights for Persons with Cognitive and Emotional Disabilities," Publius: The Journal of Federalism 27, no. 3 (1997); Kay Schriner, Lisa Ochs, and Todd Shields, "Democratic dilemmas: Notes on the ADA and voting rights of people with cognitive and emotional impairments," Berkeley J. Empl. & Lab. L. (2000); Pamela Karlan, "Framing the voting rights claims of cognitively impaired individuals," McGeorge L. Rev. (2007); Jason Karlawish and Richard Bonnie, "Voting by Elderly Persons with Cognitive Impairment: Lessons from Other Domestic Nations," McGeorge L. Rev. 38(2007); Deborah Markowitz, "Voting and Cognitive Impairments: An Election Administrator's Perspective," McGeorge L. Rev. 38(2007); Charles Sabatino and Edward Spurgeon, "Facilitating Voting as People Age: Implications of Cognitive Impairment," McGeorge L. Rev. 38(2007); Paul Felix Lazarsfeld, Bernard Berelson, and Hazel Gaudet, The people's choice : how the voter makes up his mind in a presidential campaign (New York: Duell Sloan and Pearce, 1944); Nina A Kohn, "Preserving Voting Rights in Long-Term Care Institutions: Facilitating Resident Voting While Maintaining Election Integrity," McGeorge L. Rev. 38(2007); Daniel P Tokaji and Ruth Colker, "Absentee Voting by People with Disabilities: Promoting Access and Integrity," McGeorge L. Rev. 38(2007).
    Return to Text
  21. One notable exception to the general lack of theorizing these exclusions together can be found in the work of Kay Schriner and several coauthors. In their accounts, the relationship between this form of disenfranchisement and restrictions based on race or gender is analogous, and in so far as those other forms were based on unjustifiable assumptions about the ability of women, blacks and other groups to take part in political life, they argue that restrictions based on cognitive impairments are analogously unjustifiable. The underlying logic, they argue, is one of "guardianship," bringing together multiple forms of exclusion in a triangular relationship of "dependency, disability, and deviance." Yet, there is a deeper and more prevalent connection between race and disability, and it has in part to do with the formation and maintenance of racial categories marked expressly through mental disability and criminality, as I demonstrate in what follows. See Schriner, Ochs, and Shields, "The Last Suffrage Movement: Voting Rights for Persons with Cognitive and Emotional Disabilities."; Kay Schriner, Lisa Ochs, and Todd Shields, "Democratic dilemmas: Notes on the ADA and voting rights of people with cognitive and emotional impairments."; Andrew Batavia and Kay Schriner, "The Americans with Disabilities Act as engine of social change: Models of disability and the potential of a civil rights approach," Policy Studies Journal 29, no. 4 (2001); Kay Schriner and Andrew Batavia, "The Americans With Disabilities Act: Does It Secure the Fundamental Right to Vote?," Policy Studies Journal 29, no. 4 (2001); Kay Schriner and Lisa Ochs, "Creating the Disabled Citizen: How Massachusetts Disenfranchised People Under Guardianship," Ohio State Law Journal 62(2001); L Schur et al., "Enabling democracy: Disability and voter turnout," Political Research Quarterly 55, no. 1 (2002).
    Return to Text
  22. 757 F.2d 1110 (5th Cir. 1978), 1115, emphasis added.
    Return to Text
  23. 327 F. Supp. 71 (N.D. Ga 1971), 73, emphasis added.
    Return to Text
  24. Erik Eckholm, "Inmates Report Mental Illness at High Levels," New York Times, September 7 2006.
    Return to Text
  25. E. Fuller Torrey et al., "More Mentally Ill Persons Are in Jails and Prisons Than Hospitals: A Survey of the States," (Alexandria, VA: National Sheriffs Association, 2010), 1.
    Return to Text
  26. Ibid., 19.
    Return to Text
  27. Ibid., 14-15.
    Return to Text
  28. Ladelle McWhorter, Racism and Sexual Oppression in Anglo-America: A Genealogy (Bloomington, IN: Indiana University Press, 2009).
    Return to Text
  29. Michel Foucault, Psychiatric Power: Lectures at the Collège de France 1973-1974, trans. Graham Burchell (New York: Palgrave Macmillan, 2006), 206.
    Return to Text
  30. For an account of the transmission of French medical theories to the U.S. see Chapter 3 of McWhorter, Racism and Sexual Oppression in Anglo-America. See also the extended discussion of Edward Seguin in Chapter 2 of James Trent, Inventing the Feeble Mind: A History of Mental Retardation in the United States (Berkeley: University of California Press, 1994).
    Return to Text
  31. Samuel Gridley Howe, Report Made to the Legislature of Massachusetts, Upon Idiocy (Boston: Coolidge & Wiley, 1848), 16-17, 20.
    Return to Text
  32. Ibid.
    Return to Text
  33. Ibid., 80.
    Return to Text
  34. McWhorter, Racism and Sexual Oppression in Anglo-America, 123.
    Return to Text
  35. Ibid., 139.
    Return to Text
  36. Ibid., 134. See also Trent, Inventing the Feeble Mind, 84-88.
    Return to Text
  37. Howe 20, emphasis added.
    Return to Text
  38. Charles R. Henderson, Introduction to the Study of Dependent, Defective, and Delinquent Classes and of their Social Treatment (Boston: D.C. Heath and Company, 1906), 247.
    Return to Text
  39. W.E.B. Du Bois, The Souls of Black Folk, Dover Thrift Editions (New York: Dover Publications, 1994), 141-42.
    Return to Text
  40. Khalil Gibran Muhammad, The Condemnatinon of Blackness: Race, Crime, and the Making of Modern Urban America (Cambridge: Harvard University Press, 2010), 5.
    Return to Text
  41. Howe, Report Made to the Legislature of Massachusetts, Upon Idiocy, 73-74.
    Return to Text
  42. Quoted in Trent, Inventing the Feeble Mind, 85.
    Return to Text
  43. See Brenda Jo Brueggemann and James A. Fredal, "Studying dsability rhetorically," in Disabilty Discourse, ed. Mairian Corker and Sally French (Buckingham: Open University Press, 1999).
    Return to Text
  44. Alexis de Tocqueville, Democracy in America (New York: Harper Perennial, 2006), 59.
    Return to Text
  45. The 1776 Constitution did include one criminal exclusion, but it was restricted to a the specific offense of offering or receiving any form of bribe, present, reward or promise in exchange for voting or refraining from voting. The 1851 Constitution was the first time that the state disenfranchised the entire class of persons convicted of criminal offenses.
    Return to Text
  46. Dan Friedman, The Maryland State Constitution: A Reference Guide (Westport, Conn.: Praeger, 2006), 50, 380.
    Return to Text
  47. In addition to not ratifying the 14th Amendment until 1959, Maryland rejected both the 15th and 19th Amendments outright in 1870 and 1920 respectively. The rejection of the 15th was overturned 3 years later while the 19th Amendment remains unratified by the State.
    Return to Text
  48. Absent this change, the only mechanisms for rights restoration of rebels were either service in the U.S. Army or a two-thirds vote by the General Assembly. See Friedman, Maryland State Constitution: A Reference Guide, 50.;
    Return to Text
  49. All references to the debates will be hereafter cited parenthetically, giving the speaking delegate's last name and the page number in Maryland. Constitutional Convention (1864), Wm Blair Lord, and Henry M. Parkhurst, The Debates of the Constitutional Convention of the State of Maryland (Annapolis: R.P. Bayly, 1864).
    Return to Text
  50. The delegate was reading from John Bouvier, Institutes of American Law, 4 vols. (Philadelphia: R.E. Peterson, 1851), 72.
    Return to Text
  51. Delegate Jones of Somerset insisted this was "an uncertain and dangerous power" to give to election Judges. If were "left to the judges of election to say that any man is a lunatic and not entitled to vote," he worried, "I doubt whether a sane man can be found in the State" (1296).
    Return to Text
  52. "No question of judicial construction shall be left open for litigation, especially before a tribunal evidently and confessedly incompetent practically to decide such a question" (Delegate Jones, 1297).
    Return to Text
  53. The other key referent for this stabilization, and for which my own account is admittedly and woefully inadequate, is the gender category of "woman." There are numerous references to women throughout the debates, but there is no sustained discussion of women as a "problem," as there was with "free negroes." In limiting my discussion here to the particular referent of the "free negro," I do not mean to imply that it was the only referent to do this work, but that it was the one most pressing on the minds of the delegates in 1864. Given my own theoretical approach, I readily concede that this omission here limits the reach of my conclusions, as my reading of the debates is clearly a gendered one, and as such, demands further attention.
    Return to Text
  54. While it pervades the entire debates, the "negro problem" was taken up explicitly in five questions: 1) the effects of emancipation itself, 2) support for manumitted slaves, 3) forced apprenticeship for "negro youth," 4) immigration of blacks into the state, and 5) the basis of representation for free blacks in the General Assembly. On the immigration of "free negroes," see the debates of May 20-21 (109-112; 122-127); on apprenticeship of Negro youth, see June 11, August 26, & Sep. 2 (391-393; 1576-1602; 1795-1800); on the support of manumitted slaves, see July 26 (945-961); on emancipation, see June 17-24 (538-744); and on basis of representation for "free negroes" in the General Assembly, see July 28 (1032-1059) in Maryland. Constitutional Convention (1864), Lord, and Parkhurst, Debates of 1864.
    Return to Text
  55. It was state policy from the 1830s on to promote the removal of "free negroes" to Liberia, and land was purchased there with state funds in 1834. Charles Wagandt, The Mighty Revolution: Negro Emancipation in Maryland, 1862-1864, Reprint ed. (Baltimore: Maryland Historical Society, 2004), 60-61.
    Return to Text
  56. Carl N. Everstine, The General Assembly of Maryland 1850-1920 (Charlottesville, VA: The Michie Company Law Publishers, 1984), 80-81.
    Return to Text
  57. Wagandt, Mighty Revolution, 8.
    Return to Text
  58. Cf. Patricia Cline Cohen, A Calculating People: The Spread of Numercy in Early America (New York: Routledge, 1999).
    Return to Text
  59. The 32 page pamphlet, published in 1863 by Van Evrie, Horton & Co. in New York, is described in an advertisement, "This is a brief history of the Results of Emancipation, showing its wretched and miserable failure, and that Negro Freedom is simply a tax upon White Labor. The facts in relation to the real condition of the Freed Negroes in Hayti, Jamaica, &c., have been carefully suppressed by the Abolition papers, but they ought to be laid before the public, so that the evils which now afflict Mexico, Hayti and all countries where the Negro-equalizing doctrines have been tried, may be known and understood." Advertisement quoted from John H. Van Evrie, White supremacy and negro subordination: or, Negroes a subordinate race, and (so-called) slavery its normal condition (New York: Van Evrie, Horton & Co, 1868).
    Return to Text
  60. In the early days of the convention a committee formed to deal specifically with the question of "free negroes," proposed that "[n]o free negro or free mulatto shall come into or settle in this State after the adoption of this Constitution" (110). While this proposal ultimately never made it into the Constitution, a desire to simply be rid of "free negroes" pervaded the debate.
    Return to Text
  61. McWhorter, Racism and Sexual Oppression in Anglo-America.
    Return to Text
  62. I take this term from McRuer, embracing a refusal of privilege that is "active and ongoing, functioning as more than a disavowal," by extending his deployment of the term. I make no claim to be successful in my own usage, but embrace it as a marker of solidarity, as humbly as possible. McRuer, Crip Theory: Cultural Signs of Queerness and Disability. See also Carrie Sandahl, "Queering the Crip or Cripping the Queer?: Intersections of Queer and Crip Identities in Solo Autobiographical Performance," GLQ 9, no. 1-2 (2003).
    Return to Text
  63. Lennard Davis, "Bodies of Difference: Politics, Disability, and Representation," in Disability Studies: Enabling the Humanities, ed. Sharon L. Snyder, Brenda Jo Brueggemann, and Rosemaire Garland-Thomson (New York: Modern Language Association of America, 2002); Lennard Davis, Enforcing Normalcy: Disability, Deafness and the Body.
    Return to Text
  64. Lennard Davis, "Bodies of Difference," 103-04.
    Return to Text
  65. Ibid., 105.
    Return to Text
  66. Iris Marion Young, Inclusion and Democracy (Oxford: Oxford University Press, 2000), Chapter 2 especially.
    Return to Text
  67. Iris Marion Young, "Foreward," xiv.
    Return to Text
  68. Ibid., xiii-xiv.
    Return to Text
  69. Iris Marion Young, "Asymmetrical Reciprocity: On Moral Respect, Wonder, and Englared Thought," Constellations 3, no. 3 (1997), 358.
    Return to Text
Return to Top of Page


Copyright (c) 2012 Andrew Dilts



Beginning with Volume 36, Issue No. 4 (2016), Disability Studies Quarterly is published under a Creative Commons Attribution-NonCommercial-NoDerivatives license unless otherwise indicated. 

If you encounter problems with the site or have comments to offer, including any access difficulty due to incompatibility with adaptive technology, please contact the web manager, Maureen Walsh. Disability Studies Quarterly is published by The Ohio State University Libraries in partnership with the Society for Disability Studies.

ISSN: 2159-8371