America's Unwritten Constitution: The Precedents and Principles We Live By (100 page)

1
    For the erroneous claim that the written Constitution omits all mention of and/or is hostile to political parties, see, e.g., Samuel Issacharoff and Richard H. Pildes, “Politics as Markets: Partisan Lockups of the Democratic Process,”
Stanford LR
50 (1998): 643, 713–714 (“[T]he constitutional structure was specifically intended to preclude the rise of political parties, which were considered the quintessential form of ‘faction.’ Yet political parties have become the principal organizational form for mass democracy.”); Samuel Issacharoff and Richard H. Pildes, “Election Law as Its Own Field of Study: Not by
‘Election’ Alone,”
Loyola of Los Angeles LR
32 (1999): 1173, 1175–1176 (“No constitutional framework for enabling modern democratic self-government can neglect the role of political parties, yet the Constitution is not only silent about parties but designed to preclude their emergence”); Ernest A. Young, “The Constitution Outside the Constitution,”
Yale LJ
117 (2007): 408, 419 (proclaiming that “our two dominant political parties” are “left entirely out of the canonical document”). Note that Professor Young defines the phrase “canonical document” to mean the terse text “ratified in 1789, formally amended several times since, and passed out in handy pocket-size booklets by the Federalist Society.” Ibid., 415. See also ibid., 409 (referring to “the language of a certain Document of 1789, together with a severely select coterie of additional paragraphs called Amendments”). None of these articles contains any qualifying reference to the vision of national political parties undergirding the Twelfth Amendment (adopted by the Founding generation) or to the later Twenty-fourth Amendment, which explicitly covers party “primary” elections. The Twelfth Amendment is also painfully absent from a prominent article by another outstanding scholar, who declares that “the Jacksonian ascendance of popular democracy and political parties” took place “without any authorizing or triggering constitutional amendment.” David A. Strauss, “Common Law Constitutional Interpretation,”
U. of Chicago LR
63 (1996): 877, 884. For yet another acclaimed scholar trying to use the emergence of political parties to challenge the written Constitution’s fit with actual practice, see Barry Friedman, “The Will of the People and the Process of Constitutional Change,”
George Washington LR
78 (2010): 1232, 1236.

2
    
Farrand’s Records
, 2:537.

3
    On how these odd outcomes could easily occur, Amar,
ACAB
, 336–341.

4
    See, generally, Richard Hofstadter,
The Idea of a Party System
(1969), 41–42 (“British politics in the era of George III, with its cabinet system not yet developed, with its relatively small electorate, its pocket boroughs, its connections of leading families, its management by purchase and arrangement, its lack of highly focused issues, its multiple, shifting factions, its high proportion of unaligned members of Parliament, bore only a vague germinal relation to the highly developed modern British party system”). In fascinating unpublished work, Professor Philip Bobbitt has suggested that Hofstadter’s portrait may be overdrawn and that, by the late eighteenth century, parliamentary politics were more modern than Hofstadter suggested. Bobbitt also maintains that in America, political parties of a certain sort were well underway by the time the Constitution was adopted in 1789.

5
    See Amar,
ACAB
, 9: “Virtually no arch-loyalist went on to become a particularly noteworthy political leader in independent America.”

6
    For an outstanding recent biography that captures Madison’s essence as a politico—and in later life, a party man—see Richard Brookhiser,
James Madison
(2011).

7
    On the vice president’s expanding role and increased proximity to the president, see Joel K. Goldstein, “The New Constitutional Vice Presidency,”
Wake Forest LR
30 (1995): 505, 531; Richard Albert, “The Evolving Vice Presidency,”
Temple LR
78 (2005): 811; Richard
Friedman, “Some Modest Proposals on the Vice-Presidency,”
Michigan LR
86 (1988): 1703. On the vice president’s statutory role in the National Security Council, see NSA Amendments of Aug. 10, 1949, ch. 412, sec. 3, 63 Stat. 578, 579, 50 U.S.C. 402(a).

8
    On extra seats and Jefferson, see Amar,
ACAB
, 87–98, 148–159, 344–347. On Burr, see ibid., 168, 313, 338–343.

9
    I have intentionally used imprecise language in reporting these voting lineups because party affiliations were complex and fluid at this moment.

10
  The one Republican no vote on the Fourteenth Amendment came from Senator Peter G. Van Winkle of West Virginia. This tally excludes three ex-Republicans who were in the process of switching parties. The three former Republicans who by mid-1866 had become de facto or de jure Democrats were Edgar Cowan of Pennsylvania, James R. Doolittle of Wisconsin, and Daniel S. Norton of Minnesota. Special thanks to Les Benedict for his help on this tally.

11
  For more discussion, see Amar,
ACAB
, 170–173, 452–453; Akhil Reed Amar and Vi-kram David Amar, “Is the Presidential Succession Law Constitutional?,”
Stanford LR
48 (1995): 113; Akhil Reed Amar, “Applications and Implications of the Twenty-fifth Amendment,”
Houston LR
47 (2010): 1.

12
  Section 2 of the Fourteenth Amendment addresses situations in which “the right to vote” is “denied” or “abridged” to various persons who are “citizens of the United States.” Section 1 of the Fifteenth Amendment, section 1 of the Nineteenth Amendment, and section 1 of the Twenty-fourth Amendment all use the same phrase: “[t]he right of citizens of the United States to vote.” Section 1 of the Twenty-sixth Amendment uses the phrase “[t]he right of citizens of the United States…to vote.” All four of the later amendments also gesture toward section 2 of the Fourteenth in their explicit use of the phrase “denied or abridged.”

13
  There is no substantial historical evidence that primary elections were purposefully omitted from the scope of the Twenty-sixth Amendment in order to limit the sweep of this amendment. Rather, the Twenty-sixth was symbolically phrased to track the iconic Fifteenth Amendment’s text. If this earlier amendment’s sweeping text (which simply did not focus on primary elections because such elections were not particularly salient in the 1860s) is best read after the adoption of the Twenty-fourth Amendment to apply to all government elections, including primary elections, then, in the absence of strong legislative history to the contrary, the Twenty-sixth Amendment’s equally sweeping text should likewise apply to all such elections. For some of the interesting methodological questions at stake here, see Amar, “Intratextualism,”
Harvard LR
112 (1999): 747, 789 n. 173.

14
  Imagine an 1868 federal statute awarding each state an annual federal subsidy based on the number of “adult male citizens” who voted in the most recent general statewide election. The adoption of the Nineteenth Amendment would surely require federal officials to reinterpret this annual subsidy law—presumably by simply ignoring the word “male” in the statute. The same result should apply if the word “male” appears in an 1868
constitutional amendment instead of an 1868 statute. After all, the Woman Suffrage Amendment was designed to trump all previous legal pronouncements—state laws, federal statutes, administrative regulations, judicial rulings, and even previous constitutional clauses—that contradicted the amendment’s core command that the sexes must stand equal before the law wherever the right to vote is involved.

         
(Parenthetically, the word “male” does appear in an 1872 statute closely tracking the language of section 2 of the Fourteenth Amendment and formally operative today: “[S]hould any State, after the passage of this act, deny or abridge the right of any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, to vote at any election named in the amendments to the Constitution, article fourteen, section two, except for participation in the rebellion or other crime, the number of Representatives apportioned in this act to such State shall be reduced in the proportion which the number of such male citizens shall have to the whole number of male citizens twenty-one years of age in such State.” Act of Feb. 2, 1872, sec. 6, 17 Stat. 28, 29. The current version of this old act, codified at 2 U.S.C. 6, reads slightly differently but still includes the word “male.”)

         
As a matter of logic, the sex equality required by the Nineteenth Amendment could be guaranteed either by ignoring the word “male” in section 2 (and thereby functionally extending section 2’s protective scope to women as well as men), or instead by ignoring section 2 altogether (and thereby, in effect, excising this section from the Constitution). Either solution would treat the sexes equally in voting law. The choice between these two options presents a nice question of what lawyers call “severability”: How much of a constitutionally deficient provision should be ignored by “severing” it from adjoining legal language? In the specific case of section 2 of the Fourteenth Amendment, it seems far more appropriate to ignore the word “male” than to ignore the entire section. It would be extremely perverse to read the Constitution’s third citizen-right-to-vote amendment (the Nineteenth) as inviting a functional excision rather than a functional extension of the Constitution’s first citizen-right-to-vote provision (section 2 of the Fourteenth Amendment).

         
A virtually identical analysis applies to the Twenty-sixth Amendment, which insists that the federal government treat young adults aged eighteen through twenty no worse than it treats older adults insofar as “the right of citizens of the United States…to vote” is concerned. It would also be odd, after the 1913 enactment of the Seventeenth Amendment, to treat disfranchisements for House races any differently than disfranchisements for Senate races, even though the explicit text of section 2 applies only to the former. Direct elections for the Senate simply did not exist in the 1860s, and the obvious aim of section 2 was to cover all elections for major state and federal positions. Hence the need to read Senate elections into section 2’s catchment provision, even though this specific application is undeniably…unwritten.

         
For an earlier spotting of the fascinating intergenerational issues teed up by section 2 in light of later voting-rights amendments, see Laurence H. Tribe,
The Invisible Constitution
(2008), 75–77.

15
  Cf. Jack M. Balkin,
Living Originalism
(2011), 261–262 (“New amendments may alter the relationships between other parts of the Constitution, sometimes…in quite unexpected ways.…[S]tructural principles might emerge from the constitutional system that no single person or generation intended.”).

16
  For the FEC, see 2 U.S.C 437c(a)(1); for the USSC, see 28 U.S.C. 991(a); for the FTC, see 15 U.S.C. 41; for FERC, see 42 U.S.C. 7171(b)(1); for the EEOC, see 42 U.S.C. 2000e-4; for the CFTC, see 7 U.S.C. 2(a)(2)(A); for the NRC, see 42 U.S.C. 5841(b)(2); for the earlier FPC, see the Federal Power Commission Reorganization Act of 1930, 46 Stat. 797; for the SEC, see 15 U.S.C. 78d(a); for the FCC, see 47 U.S.C. 154(b)(5); for the CPSC, see 15 U.S.C. 2053(c); for the old ICC, see sec. 11 of the Interstate Commerce Act of 1887, 24 Stat. 379, 383; for the FMC, see 46 U.S.C. 301(b)(1); for the NTSB, see 49 U.S.C. 1111(b). Note also that “not more than 3 of the members of the Board of Directors [of the Federal Deposit Insurance Corporation] may be members of the same political party.” 12 U.S.C. 1812(a)(2). For still more statutes with similar provisions, see Jamin B. Raskin, “‘A Complicated and Indirect Encroachment’: Is the Federal Election Commission Unconstitutionally Composed?,”
Administrative LR
52 (2000): 609, 621–622 & n. 51.

17
  See Neal Devins and David E. Lewis, “Not-so Independent Agencies: Party Polarization and the Limits of Institutional Design,”
Boston U. LR
88 (2008): 459.

18
  For example, House Rule X5(a)(3)(A) provides for equal party membership on a key ethics committee, regardless of which party happens to control the chamber as a whole. House Rule X5(a)(1) and X5(b)(1) dramatize the formal role that party membership plays in committee assignments generally: “Membership on a standing committee during the course of a Congress shall be contingent on continuing membership in the party caucus or conference that nominated the Member.” The Senate’s rules governing its committees also formally pivot on party membership. For example, under Senate Rule XXVI(3), “If the chairman of any such committee is not present at any…meeting of the committee, the ranking member of the majority party on the committee who is present shall preside.” On the formal role of parties in structuring the allocation of committee staffers, see Senate Rule XXVII(3) and House Rules X9(a)(2) and X9(1). For complementary statutory provisions concerning congressional committee staff, with elaborate references to the respective entitlements of the majority and the minority, see 2 U.S.C. 72a.

19
  See Maurice Duverger,
Political Parties
, 2d ed., Barbara North and Robert North, trans., (1962 [1951]), 216–228; V. O. Key,
Politics, Parties, and Pressure Groups
(1952), 224–231; Anthony Downs,
An Economic Theory of Democracy
(1957), 114–125; Doug Rae,
The Political Consequences of Electoral Laws
(1967), 95–96.

20
  Act of June 5, 1842, sec. 2, 5 Stat. 491 (emphasis added); Act of Dec. 14, 1967, 81 Stat. 581, 2 U.S.C. 2c.

1
    For the canonical modern account of the importance of virtue in late eighteenth-century American republican ideology, see Gordon S. Wood,
The Creation of the American Republic
, 1776–1787 (1969), 34, 65–70, 413, 425. For the canonical eighteenth-century treatment of virtue as the mainspring (“ressort”) of a true republic—a treatment that Madison/Publius likely had specifically in mind as he penned
The Federalist
No. 55 and that was surely familiar to many of his readers in 1788—see Montesquieu,
De L’Esprit des Lois, Livre III
(first published in 1748). Montesquieu was the single most cited postantiquity authority in late eighteenth-century American political discourse, edging out Black-stone and leaving Locke a distant third. See Chapter 1, n. 7 and accompanying text.