Brad Smith, for whom I have great respect, wants me to cut Rand Paul some slack, but I’m afraid I can’t. Brad surmises (correctly, in my view) that Senator Paul plans to use Article I, Section 4 as the basis for the congressional authority in the bill he is contemplating that would overturn state disenfranchisement of (some) felons. But this approach is at odds with the text of the Constitution in a number of ways, as reflected in the fact that the Federalist Papers, in separate discussions by James Madison and Alexander Hamilton, do not interpret that provision the way Senator Paul would. It is also an interpretation at odds with a number of Supreme Court decisions. In fact, the only justice to support this approach was the
(idiosyncratic) Justice Hugo Black in Oregon v. Mitchell — in an opinion that was not only not joined by any other justice, but was, as I recall, expressly rejected by all of them. Accordingly, there is no serious basis for the approach Senator Paul would take, and I state again my hope that he will reconsider such legislation.