When does judicial meddling become "moral turpitude?"

In 1996, Amendment 579 to the Alabama Constitution was approved by the legislature and ratified by the voters. Among other things, that amendment restricts the right of certain convicted felons to vote. Here is the amendment in its entirety, with the felon-disenfranchisement provision in bold:

(a) Every citizen of the United States who has attained the age of eighteen years and has resided in this state and in a county thereof for the time provided by law, if registered as provided by law, shall have the right to vote in the county of his or her residence. The Legislature may prescribe reasonable and nondiscriminatory requirements as prerequisites to registration to voting. The Legislature shall, by statute, prescribe a procedure by which eligible citizens can register to vote.

(b) No person convicted of a felony involving moral turpitude, or who is mentally incompetent, shall be qualified to vote until restoration of civil and political rights or removal of disability.

(c) The Legislature shall by law provide for the registration of voters, absentee voting, secrecy in voting, the administration of elections, and the nomination of candidates.

Last week, Jefferson County circuit court judge Robert Vance, Jr. ruled that the state can no longer enforce section (b) of Amendment 579 - the part restricting the voting rights of convicted felons. According to the AP:

MONTGOMERY, Ala. (AP) — A Jefferson County judge ordered Wednesday the state of Alabama to allow ex-felons to vote, saying a state law that denies voting rights to felons convicted of crimes of moral turpitude does not identify which crimes fit that definition. ...

Vance ordered voter registrars in Alabama counties to register ex-felons until "the Alabama Legislature passes, and the governor signs into law, legislation specifically identifying which felonies involve moral turpitude."

So, what is "moral turpitude?" And what crimes fit the bill?

Black's Law Dictionary defines "moral turpitude" as:

The act of baseness, vileness, or the depravity in private and social duties which man owes to his fellow man, or to society in general, contrary to accepted and customary rule of right and duty between man and man.

Act or behavior that gravely violates moral sentiment or accepted moral standards of community and is a morally culpable quality held to be present in some criminal offenses as distinguished from others.

The quality of a crime involving grave infringement of the moral sentiment of the community as distinguished from statutory mala prohibita.

The Wikipedia definition is:

Gross violation of standards of moral conduct, or vileness, such that an act was intentionally evil, making the act a crime. The existence of moral turpitude, as used in criminal proceedings, can bring a more severe charge or penalty for a criminal defendant.

A criminal behaviour that gravely infringes on the moral sentiments of the community. It is classified as a malum in se type of crime. [Malum in se means, literally, a wrong in itself, as opposed to malum prohibitum...a wrong prohibited, i.e. something that is wrong because it is prohibited.]

Examples include murder, larceny and aggravated assault.

So...you might say that in addition to violating man's law, crimes of moral turpitude also involve grave transgressions against the natural law (or God's law, if you prefer). That may sound like a fuzzy concept, especially in this age of moral relativism, but it's one that courts and judges have been applying for years.

When interpreting a Constitution or a statute, judges are often required to give meaning to a term or phrase that is either ambiguous or not completely defined. Much of the time, this perceived "fault" in the law is by design, intended to provide flexibility in interpretation and execution. Sometimes, lawmakers merely assume that certain words and phrases possess a commonly accepted meaning that would make any further definition superfluous. In any case, it is a judge's duty to apply the law as it is written, not as he wishes it had been written.

In last week's ruling, Judge Vance refused to carry out that duty. In effect, he threw up his hands and stripped an important constitutional provision of all its meaning, while advancing a novel view of "judicial restraint" that would better be described as "judicial retreat."

Just because some parts of the U.S. Constitution and our state constitutions are vague doesn't make them void. Take the U.S. Constitution's "necessary and proper" clause, for example. Exactly what laws are "necessary and proper for carrying into execution" the powers delegated to Congress under Article I Section 8? The Constitution doesn't say. The Framers intentionally "failed" to provide a detailed listing of these "implied powers," but their existence is undeniable. Even so, in the first few decades after the Constitution was ratified, some of the so-called strict constructionists said that the federal government could exercise the delegated powers only. They interpreted the "necessary and proper" clause in a way that would have rendered it effectively meaningless. Like Judge Vance, their error was in interpreting the Constitution not as it was actually written, but as they would have written it.

As a second example, consider the powers of the President as Commander-in-Chief of the armed forces. What powers are to be legitimately derived from that authority? Again, the Constitution doesn't say. According to Judge Vance's reasoning, though, the Constitution's silence should be read to deny the President all authority as Commander-in-Chief until his inherent duties have been defined by Congress. Although that idea may be welcomed in some political circles today, it is at odds with the structure and logic of the Constitution. Just like Judge Vance's ruling.

Thankfully, Attorney General Troy King announced Friday that he will appeal this "legally unsound" ruling to the Alabama Supreme Court. Expect it to be overturned.

(The text of Judge Vance's 50-page ruling is available at the VoteLaw blog here.)