America's Unwritten Constitution: The Precedents and Principles We Live By (64 page)

THE DECLARATION COMMITTEE (1776, AS DEPICTED IN 1876).

In 1776, even if Thomas Jefferson (far left) and John Adams (far right) were on opposite sides of a table, they were definitely on the same side of the great issue of American independence that lay before them. Twenty years later, these former friends vied for the presidency. Adams won, and Jefferson, as runner-up, became vice president. During Adams’s presidency, a national two-party system intensified, making it hard for the two men to collaborate as before. After Jefferson bested Adams in a rematch in 1800–1801, the Twelfth Amendment restructured the election process for presidents and vice presidents.

A
NATIONAL TWO-PARTY SYSTEM IS AS
indelible a feature of modern America’s landscape as the Great Plains, the Rocky Mountains, the Grand Canyon, or the Columbia River—though none of these things was part of George Washington’s America. Although several prominent scholars have claimed that the written Constitution fails to address political parties, a close look at the text proves otherwise. A national two-party system in fact forms a vital part of the connective tissue tightly binding America’s written and unwritten Constitution into a coherent and workable whole.
¹

The key point is that, where parties are concerned, today’s Constitution dramatically differs from the document that Publius described in
The Federalist
in 1787–1788 and that Washington swore to preserve, protect, and defend in 1789. Washington strove mightily to stand above party, but in this regard today’s presidents cannot and should not emulate Washington, despite the general teachings of
Chapter 8
. On certain issues, modern presidents must follow Jefferson and Lincoln, Andrew Jackson and Theodore Roosevelt, FDR and Reagan—partisans, all—because today’s Constitution openly embraces a permanent national two-party system that was at odds with Washington’s Constitution (and Washington’s constitution).

The point extends far beyond modern presidents. Most of the rules and roles textually delineated in the original Constitution—for House members, senators, department heads, vice presidents, members of the electoral college, and so on—must today be reread through the prism of America’s two-party system, even though the terse text does not quite say all this in so many words.

THE INTRICATE ARTICLE II
presidential-selection system cobbled together at Philadelphia was a calamity waiting to happen, because the framers failed to anticipate all the ways in which this system might malfunction once two antagonistic presidential parties appeared on the scene.

Under the Philadelphia plan, whoever came in second in the voting for president would automatically become vice president. Even if the leading presidential prospects did not run for election but merely stood quietly—with no organized attempts to mobilize supporters or to disparage rivals—some friction or frigidity would likely exist between two prominent leaders who had never chosen to stand together as a political team. Unless the electoral margin between America’s leading man and his constitutional understudy was overwhelming (as indeed it was between Washington and Adams), it would not be unreasonable to imagine that at the next election the nation might well vault the current number two into the number one slot. This thought could hardly endear the vice president to the president. It would be a rare chief executive who would want to share his power or his secrets with a man whom he had not picked, whom he could not fire, who presumably coveted the top job, and who embodied perhaps the biggest obstacle to the president’s own reelection. The vice president, in turn, was apt to have mixed emotions about the only man in America who outranked him. As Gouverneur Morris wryly observed at Philadelphia, any vice president who truly revered the president would be the world’s “first heir apparent that ever loved his father.”
²

And then, even before Washington left the political stage, a national two-party system started to take shape. What had begun as a merely clumsy contraption for selecting the nation’s two top men quickly became a dangerously dysfunctional device—a faulty constitutional gearbox apt to fail catastrophically. If a president from one party ended up with a vice president from the other party, and if each had won his seat only after fiercely opposing the other in a turbulent popular contest, relations between the nation’s top two officers would likely be severely strained. Extremists seeking to reverse the election’s outcome might even begin to dream about assassinations or partisan impeachments, whereby number two could become number one.

The fraught relationship between John Adams and Thomas Jefferson perfectly illustrated the structural problem. In 1796, these onetime friends had run against each other, but the Founders’ rules ended up forcing these two now-rivals to cohabit, so to speak, as president and vice president, respectively. As frosty as relations between these two men were during their four years of enforced political cohabitation, the situation would have been
infinitely worse had both men been reelected—in either order—in their bitter rematch of 1800–1801. Yet such split tickets were easy to imagine under the Philadelphia framers’ elaborate election rules. Any national party trying to capture both the presidency and the vice presidency had to find clever but risky ways of manipulating constitutional machinery that had been designed precisely to thwart electoral manipulation and interstate coordination. Even if both political parties—Federalists and Republicans, as they came to be known—strongly preferred that the top two executive-branch spots go to teammates rather than enemies, the Philadelphia rules could not guarantee that the outcome would be either two compatible Federalists or two compatible Republicans. King Solomon in his storied wisdom had never truly sought to split the baby, but the Philadelphia rules in their stark unwisdom actually could lead, time and again, to painful split verdicts and odd inversions that almost no one wanted.
³

WHY DID THE PHILADELPHIA FRAMERS
fail to foresee what seems to us in hindsight inevitable, namely, the emergence of two highly organized national parties that would routinely vie for the presidency (and lots of other positions as well) in energetic electoral contests that might well inflame the passions of political leaders and ordinary voters alike? After all, Whigs and Tories existed in eighteenth-century England, and many states were home to political competitions between various coalitions.

In fact, political competitions in the Anglo-American world circa 1787 were often patterned, but not always organized—at least by today’s standards of political organization. Elections and politicking were not tightly configured around large-scale, institutionalized parties with stable membership lists, official nominees, written platforms, issue-oriented campaigns, and well-oiled mechanisms for mass fund-raising and fund-disbursement. Instead, political life was typically connected to shifting personalities and local concerns. For much of the eighteenth century, an unelected English king picked his own ministers as he saw fit, using a grab bag of monarchial prerogatives to manage, manipulate, flatter, bribe, and punish members of Parliament into supporting his pets. Only in the next century would a new English system visibly and enduringly emerge in which Parliament would elect the prime minister and his cabinet, and organized parties would openly compete to control Parliament and the machinery of government.

In most post-Independence states, political life was also local and personal, often pitting allies of a charismatic governor (John Hancock in Massachusetts, George Clinton in New York, Patrick Henry in Virginia, and so on) against a wide and loose assortment of adversaries. No permanent interstate political networks existed, and few places had anything like today’s modern two-party system, with two long-standing and highly visible political organizations routinely fielding competing slates of candidates, and each party winning some of the time.
⁴

To see the framers’ world from another angle, we should recall that, although the politics of the 1760s and early 1770s had become more organized—and had witnessed the first iteration of intercolonial coordination and coalition-building—the two main “parties” that had emerged were the Patriots, who would ultimately revolt, and the Loyalists, who continued to back King George. After 1776, the Loyalists dissolved as a viable political force in independent America. Political power flowed to the Patriots, who had all been on the same side—in the same “party,” so to speak—during the great sorting-out that was the American Revolution.
⁵

Most likely, the Constitution’s framers did not envision a modern national two-party system for the simple reason that this system began to take shape only after and because of the Constitution itself. Before 1789, no strong interstate two-party competition existed because no strong interstate offices existed. Each state picked its own members of the Confederation Congress, and Congress lacked a strong continental presidency worth fighting for via the two-party system as we now know it. The Constitution itself created a powerful national government with powerful national offices—beginning with the presidency—and a national two-party system soon emerged in response.

AT THIS POINT IN OUR STORY,
it might seem that the scholars who claim that the written Constitution makes no mention of parties are dead right. But wait. What these scholars miss is that America’s written Constitution is not now—and for more than two centuries has not been—the text drafted at Philadelphia. Rather, America’s written Constitution consists of the original text
and its written amendments
.

FROM START TO FINISH,
both on the surface and between the lines, these amendments are all about political parties.

The first ten amendments—generally known today as the Bill of Rights, although this caption does not explicitly appear in the federal text—began with a textual affirmation of the right of citizens to organize politically via “speech,” “the press,” “assembl[ies],” and “petition[s.]” Although the term “political parties” does not explicitly appear in this amendment, the idea is nevertheless implicit. After all, parties engage in “speech.” Parties publish their opinions and appeals via “the press”—and when these words were written into the Constitution, many of America’s leading printers were political operatives. Parties routinely coordinate signatures in “petition” drives and “assemble” in parks, street rallies, meeting halls, convention centers, and so on. More generally, the grand idea unifying all these First Amendment clauses is that citizens have a right to communicate with each other and to criticize government officials even if these expressions are one-sided—even if, that is, the speakers, printers, assemblers, and petitioners are
partisan
.

The man who played the largest role in getting the First Amendment enacted, James Madison, is also the man who shortly thereafter cofounded America’s oldest continuous national political party—the Republican Party of the 1790s, the forerunner of today’s Democrats—which succeeded in delivering the vice presidency in 1796 and the presidency in 1800–1801 to the party chieftain, Thomas Jefferson. Tellingly, the partisan politician Madison and his partisan partner Jefferson were the most vigorous champions of the First Amendment when its principles (and its principals) came under assault from the Sedition Act of 1798, at the precise moment that these two men were building their party. And as soon as Jefferson and Madison ascended to the presidency and the cabinet, respectively, in 1801, the stage was set for another written constitutional amendment, the Twelfth, that would further enact and further entrench the prominent and legitimate role of political parties in the American constitutional system.
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PROPOSED IN LATE
1803 and ratified in mid-1804, the Twelfth Amendment rewrote the rules for picking presidents and vice presidents. Although
the term “political parties” does not appear in the amendment’s explicit text, here, as elsewhere, we must read between the lines. When we do, we quickly see that this amendment was designed precisely to accommodate the recent emergence of a system of two national presidential parties in the Adams-Jefferson/Federalist-Republican elections of 1796 and 1800–1801.

The key Twelfth Amendment reform allowed each member of the electoral college to cast two “distinct ballots”—one ballot for the president and a wholly separate ballot for the vice president. This amendment freed each national political party to run a slate of two candidates openly presenting themselves to the voters as a team, one running for president and the other for vice president, with no need to manipulate balloting, as had become necessary under the Philadelphia plan. If a national party had enough clout to get its top man elected president, the party could ordinarily rest assured that its second man would win the vice presidency, so long as this team win was indeed what most American voters truly wanted. No more would Americans have to routinely risk dysfunctional political cohabitations of the sort exemplified by Adams and Jefferson in the late 1790s.