Perspective 63. Republicans in Congress: Defending "Originalism"?

Perspective 63. Republicans in Congress: Defending "Originalism"?

In defeating efforts to guarantee voting rights and limit the filibuster in the Senate, Republicans claim to be defending the intentions of the Founding Fathers. The voting rights bill, they say, would have amounted to a "federal takeover" of powers reserved by the founders, in their infinite wisdom, to the states. And the filibuster was a wise device designed to make the Senate a more deliberative body. Would the writers of the Constitution have applauded these sentiments?

No. As noted previously, the Constitution does not require a supermajority in the Senate to close debate, and the Senate dropped its procedure for closing debate only some years later (at the suggestion of none other than Aaron Burr). James Madison, chief architect of the constitution, opposed any requirements for a supermajority in legislative actions. And the constitution very clearly gives the federal government ultimate control over what are, after all, federal elections.

In perspective, it is strange that the so-called "originalists" would even attempt to use the Constitution as an argument to defend efforts in various states to make voting more difficult. As Jamelle Bouie points out in the New York Times, Article 1 is crystal clear on this issue. The "Times, Places, and Manner" of elections for the Senate and the House are set by state legislatures in the first instance, but "Congress may at any time by Law make or alter such Regulations."

Alexander Hamilton and James Madison, among others, wrote strong defenses of this very provision. Hamilton argued that in leaving the matter to states, "the existence of the Union would be entirely at their mercy."

Both Congress and the Supreme Court have reaffirmed federal authority over federal elections time and again throughout our history, notably in civil rights legislation in recent decades. Are the originalists arguing that southern states should be allowed to reimpose Jim Crow laws?

The "originalist" position on constitutional law is a respected point of view, even when some of us feel that the Founding Fathers weren't always right or may not have allowed for needed historical changes. But those who erroneously wrap themselves in the cloak of originalism should pay more attention to the actual content of the documents they pretend to revere.