An Unconstitutional Bill from Rand Paul?

by Roger Clegg

I hope not, but alas Senator Rand Paul (R., Ky.) has announced that he plans this week to introduce federal legislation to reenfranchise some felons. Senator Paul’s reasons for this are avowedly political; in my view, it is nonetheless bad policy, but here is the larger point: Congress has no authority to pass such legislation, and if Senator Paul proposes it, I am sorry to say that he has shown himself to be someone who does not take the Constitution seriously.

The Constitution gives the states the authority to determine who can vote in elections, so long as they do so in a way that does not violate some other provision of the Constitution (for example, gender discrimination in voting). But there is no credible argument that disenfranchising felons violates the Constitution; indeed, the Constitution itself (in Section 2 of the Fourteenth Amendment) expressly contemplates the disenfranchisement of felons. My congressional testimony from a few years ago lays all this out; the Supreme Court confirmed this more recently in an opinion last year written by Justice Scalia that even the entire liberal wing of the Court joined.

Again, if Senator Paul takes the Constitution seriously, he will not introduce federal legislation that requires the reenfranchisement of felons. If he does introduce such a bill, then, with all due respect, voters must draw the appropriate conclusions about him and how seriously he takes his oath of office. I hope he reconsiders.