The Supreme Court is going to take up another North Carolina redistricting case next week. This time, the North Carolina legislature is arguing that the General Assembly has the sole responsibility for overseeing federal elections, including drawing Congressional districts.  Specifically, North Carolina Republican leaders say that the state supreme court is overreaching when redrawing Congressional districts that they find unconstitutional, but the suit could have much broader consequences, giving legislatures unfettered power by eliminating checks and balances in overseeing elections. 

Opponents fear that a win at the Supreme Court could upend our elections across the country, giving legislators unprecedented power to restrict access to polls, institute Voter ID bills, even change how electoral votes are allocated. Conservatives argue that they just want to enforce the Elections Clause in the Constitution and that the Constitution specifically gives state legislatures the sole responsibility for establishing the rules of federal elections. They complain about “activist” judges usurping their power. 

I’m generally reluctant to weigh in on court cases because I’m not a lawyer or constitutional scholar. However, I have read enough about the Founding Fathers to have an opinion about what they were thinking. Conservatives usually argue that they want to get to the intent of the Founders, citing their philosophy as “originalism.” 

Well, the men who wrote the constitution were loath to give too much power to any branch of government. They set up an elaborate system of checks and balances to ensure that no one body or person could gain too much control. I don’t believe that they intended for state legislatures to have the power to oversee elections without any check on their actions. On the contrary, the Founders would expect the courts to ensure equal protection under the law, not protection at the whims of a partisan legislature. 

The so-called “Independent State Legislature Doctrine” is opposed by legal scholars of all stripes. The co-founder of the conservative Federalist Society signed on to an amicus brief opposing the doctrine. So did former Republican Governor of California Arnold Schwarzenegger. If the Supreme Court sides with the North Carolina Republicans, they will change the way elections have worked for decades. That’s not judicious. That’s radical. 

The conservatives who call themselves “originalists” show how far the Republican Party has moved from its founding and how much the two parties have switched places since the end of Jim Crow. The original “originalists” were the people advocating secession, or at least arguing that the Constitution had no authority to keep states in the Union. Conservative John C. Calhoun of South Carolina claimed that the states did not have to obey the laws of Congress, a theory he called Nullification. He used similar arguments to the ones conservatives use today. Andrew Jackson disagreed and defeated Calhoun and his originalism.

Abraham Lincoln, our first Republican president, disagreed, too. Lincoln decided, virtually on his own, to declare war on the Southern states and mobilized troops to quell the rebellion. He suspended habeas corpus during the war, imprisoning people believed to be a threat to the union, in direct contradiction to the Constitution. In freeing the slaves with the Emancipation Proclamation, he sidestepped Congress which is responsible for making laws. He remade our country for the better in spite of the Constitution, not because of it. 

Lincoln came to believe that the Declaration of Independence was the foundational document of our country. The Constitution, while necessary and authoritative, was a flawed compromise designed to set the rules for a functioning government. Given the choice between following  the aspirational sentiments of the Declaration or following a Constitution that embraced the three-fifths compromise, he chose the Declaration’s belief that “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” He was striving for the “more perfect union” that our Constitution’s preamble promised but that the document itself prevented. 

If Lincoln were alive today, he would almost certainly oppose the originalists. And conversely, the originalists, if they were alive in 1861, would almost certainly have opposed Lincoln. Republicans have strayed so far from their founding, that today, their Founder would not likely claim them. 


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