America's Unwritten Constitution: The Precedents and Principles We Live By (65 page)

Once the president and the vice president began to see themselves as “running mates”—as men who had successfully partnered up to win a three-legged race in the last election and who might need to partner up again in the next election—it became somewhat less awkward for the president to bring his vice president into his inner circle of confidants and counselors. Still later amendments adopted in the twentieth century (amendments that we shall explore momentarily) intensified the relationship between America’s top two executive-branch officers, with the result that today’s vice presidents typically have much closer relationships with presidents than Adams had with Washington or than Jefferson had with Adams. In actual government practice in the twenty-first century, the vice president is ordinarily a key member of the president’s inner circle, and by statute plays an important role in National Security Council deliberations.
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The Twelfth Amendment did not merely bring a national two-party system into the written Constitution because of what the amendment said, explicitly and implicitly. The amendment also constitutionalized parties in a deeper way, via what it did. Its very enactment was partisan, with the fledgling two-party system playing a large and visible role in the amendment’s
drafting and ratification. Jefferson’s Republican Party backed the proposed new rules, and the main opposition came from New England members of the Federalist Party.

These Federalists were right to resist. The amendment’s new rules, while designed to fix several problems that had been highlighted by the Adams-Jefferson rivalry (and by the complicating ambitions of Jefferson’s supposed teammate, Aaron Burr), left intact and thereby entrenched one of the Philadelphia system’s most glaring defects. Via the three-fifths clause of Article I, section 2, the Constitution gave slave states extra seats in the House of Representatives—and therefore also in the electoral college—above and beyond the proper allotment warranted by these states’ free population. As the elections of 1796 and 1800 had made clear, this disgraceful rule of extra seats for extra slaves had generally benefited Jefferson’s party—the Republicans.
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Unsurprisingly, Republicans ignored the pleas of New England Federalists to fix this Philadelphia flaw along with other Philadelphia flaws being repaired. Once the amendment’s new rules were ratified, the Federalists, who had in effect won the first three presidential elections—and perhaps might have won the fourth, absent the proslavery skew of the Philadelphia plan—never again won the presidency. The next three presidential elections were won by the cofounders of the Republican Party, Jefferson and Madison. This party and its eventual successor, the Jacksonian Democrats, dominated presidential politics until 1860, thanks in no small part to the rules of the Twelfth Amendment that had been drafted by this party and for this party.

Thus, the Twelfth Amendment, both in process and in result, was partisan hardball. Pretty or not, this amendment proves that a national two-party system has been a central feature of the written Constitution, both in its amendatory texts and in its amendatory deeds, for more than two centuries.

WHAT GOES AROUND COMES AROUND.
The next three amendments were even more partisan in both the substance of their constitutional vision
and the enactment process by which they sprang to life. This time, however, a different Republican Party—the party of Lincoln, not Jefferson—prevailed.

Proposed in early 1865 and ratified later that year, the Thirteenth Amendment abolished slavery and thereby marked the fulfillment of the official 1864 Republican Party platform: “[W]e are in favor…of such an amendment to the Constitution, to be made by the people in conformity with its provisions, as shall terminate and forever prohibit the existence of Slavery within the limits of the jurisdiction of the United States.” The Democrats’ official platform had offered voters a starkly different vision: “[T]he aim and object of the Democratic party is to preserve the Federal Union and the rights of the States unimpaired.”

In the Senate, which had passed the amendment before the November election, all Republicans had said yes, while most Democrats had voted no. In the House, which passed the amendment after the election, virtually every Republican supported the amendment, and roughly three-quarters of the Democrats opposed it. The few Democrats who voted yes were generally latecomers to the parade—men who had previously voted against the amendment and who reversed course only after the voters handed the Republican Party a sweeping victory.
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When the next Congress convened in late 1865, it quickly became obvious that the Republican Party could not simply rest on its laurels. The abolition of slavery meant that freed slaves would now count for five-fifths in apportioning congressional and electoral-college seats, even though the freedmen were generally not allowed to vote. Unless something was done, and done soon, southern antiblack politicians—Democrats committed to undoing the Republican Party’s vision of liberty and justice—could end up with more seats and more power than ever. Republicans thus cobbled together another constitutional amendment, the Fourteenth, which was proposed by a true-blue Congress in mid-1866 and ratified by three-quarters of all the states in mid-1868.

This amendment was a partisan product from start to finish. Its opening paragraph sweepingly guaranteed a broad range of basic rights against state governments, including the rights to speak, to print, to assemble, and to be treated fairly. The most obvious and immediate intended beneficiaries of
this sweeping guarantee were Republicans and Republican sympathizers in the South. For years, various Democrat-controlled state governments in this region had trampled basic rights, in effect criminalizing the Republican Party. The amendment’s second paragraph reduced congressional and electoral-college apportionment for any state that disfranchised adult male citizens. This provision penalized states that refused to let freedmen vote; put differently, the provision incentivized states to enfranchise freedmen. Freedmen, of course, were likely to vote for the party that had voted for them—Republicans. Thus, states that enfranchised likely Republicans would get more seats than states that did not. The third section of the amendment barred various rebel leaders from high-level public service. Almost all the banned leaders were Democrats, and the only federal branch authorized by this section to lift the ban was the one branch controlled overwhelmingly by Republicans: Congress. (Democrats at the time not only held the presidency, in the person of Andrew Johnson, but also retained a slim majority on the Court.) The amendment’s fourth section repudiated debts that had been incurred by rebel (that is, Democrat-controlled) governments—debts especially apt to be held by rebel sympathizers (again, largely Democrats)—while guaranteeing repayment of federal debts that had been incurred by previous Republican Congresses. The amendment’s fifth and final section gave Congress sweeping enforcement powers at the very moment that Republicans enjoyed veto-proof majorities in both houses.

The amendment’s enactment process was even more partisan than its substance. Much of the amendment was hammered out in a Republican Party caucus that closed its doors against Democrats. Ultimately, not a single congressional Democrat voted for the amendment, and only one congressional Republican voted against it. In the 1866 elections, the proposed amendment functioned as the Republicans’ de facto party platform, much as the hoped-for Thirteenth Amendment had furnished a large plank in the official quadrennial platform two years earlier. In several state legislatures deciding whether to ratify the proposed amendment, Republicans rammed the measure through with minimal deliberation and little direct engagement of the objections raised by Democrats, whose party chieftain, Andrew Johnson, was crusading against the proposed amendment with
unprecedented venom and vigor. And let’s not forget that many southern political leaders, overwhelmingly Democrats, were excluded from the Congress that drafted the Fourteenth Amendment and were barred from reentry until their states said yes to the measure and also agreed to enfranchise blacks, who would likely vote Republican. In blistering language, the Democratic Party Platform of 1868 proclaimed that Congress’s recent interferences with state suffrage laws via the Reconstruction Acts of 1867 were “an usurpation, and unconstitutional, revolutionary, and void.”
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In the first general election held after the Fourteenth Amendment became law, Republican Ulysses Grant won the presidency even though a majority of whites nationwide had apparently backed the Democratic candidate, Horatio Seymour. Aware that newly enfranchised southern blacks had voted overwhelmingly for their party, Republicans responded with yet another constitutional amendment, this one guaranteeing race-neutral voting laws in state and federal elections. Proposed in early 1869 and ratified in early 1870, the Fifteenth Amendment aimed not merely to reinforce the rights of blacks who were already voting in the South, but also, and more pressingly, to extend the vote to disfranchised blacks in the North—blacks apt to join their southern cousins in voting Republican. Almost all congressional Republicans supported this final Reconstruction Amendment, and virtually every congressional Democrat opposed it. In the ratification process, Republican whips in state legislatures generally ensured that party members followed the party line.

To stress that all three Reconstruction Amendments were intensely partisan measures is not to condemn these provisions, but rather, to give credit to the role that political parties at their best can play and have played in the American constitutional order. The Reconstruction Amendments contain some of the noblest elements of the American Constitution. These provisions should remind us that a national two-party system does not exist at odds with the written Constitution, but has long operated in sync with it, and has indeed been the main engine driving formal changes to its text over time.

THE PRECISE ROLE PLAYED BY PARTIES
within the amendment process has changed in important ways over the centuries. As we have seen, America’s first set of amendments—the Bill of Rights—emerged from a
pre-partisan process
. While Americans at the Founding had witnessed an epic continental debate between Federalists and Anti-Federalists, it was not immediately clear that these two temporary camps would harden into permanent parties. In fact, many backers of the Bill of Rights in the First Congress were hoping to find common ground that could reunite the camps. The next momentous set of amendments—the Twelfth through the Fifteenth—emerged from a
strictly partisan process
in which one party simply steamrolled to victory under the banner of reform. As we shall now see, America’s most recent amendments have generally emerged from a
bipartisan process
in which both major parties have worked together to achieve the political supermajorities ordinarily required by Article V—two-thirds of each house of Congress plus three-quarters of the states.

The Sixteenth Amendment, explicitly authorizing a federal income tax, was endorsed by the Democratic Party platforms of 1908 and 1912 and by Republican presidents Theodore Roosevelt and William Howard Taft. (Although presidents have no formal vote or veto in the amendment process, they nevertheless command considerable authority as de facto leaders of their party.) Even politicians who were skeptical of a federal income tax found it hard to resist the prevailing political winds. In 1909, the amendment breezed through the Senate unanimously, and passed the House on a vote of 318 to 14. Over the next four years, the amendment received enough state ratifications to become the first textual addition to the Constitution since Reconstruction.

Both Democrats and Republicans had found it in their interest to appeal to a rising twentieth-century progressive movement whose members generally favored a progressive income tax. A few years later, an analogous dynamic unfolded on the issue of woman suffrage. As it became increasingly imaginable that suffragists might ultimately prevail, the prophecy became self-fulfilling, thanks in part to partisan competition. Both parties wanted to win the allegiance of the new voters, and support for a Woman Suffrage Amendment was crucial to winning that allegiance.

In 1916, the parties hedged their bets. Each party platform endorsed both the principle of woman suffrage and the right of every state to decide for itself. Four years later, competition for women’s allegiance intensified and the parties raised their bids. The Republican Party platform reminded voters that “the Republican Congress…submitted to the country the constitutional
amendment for woman suffrage, and furnished twenty-nine of the thirty-five legislatures which have ratified it to date.” Not to be outdone, Democrats—whose outgoing party leader, President Woodrow Wilson, had crusaded for the federal Suffrage Amendment—inserted the following plank in their 1920 platform:

       
We endorse the proposed 19th Amendment of the Constitution of the United States granting equal suffrage to women. We congratulate the legislatures of thirty-five states which have already ratified said amendment and we urge the Democratic Governors and Legislatures of Tennessee, North Carolina and Florida and such states as have not yet ratified the Federal Suffrage Amendment to unite in an effort to complete the process of ratification and secure the thirty-sixth state in time for all the women of the United States to participate in the fall election.

Later that summer, the parties’ wish came true when Tennessee became the decisive thirty-sixth state to say yes.

Similar stories can be told about more recent amendments. In the middle years of the twentieth century, American blacks were a swing constituency wooed by both parties. Before 1932, blacks voted overwhelmingly for Republicans; by 1972, they had generally become reliable Democrats. In the years in between, neither party could confidently count them in or count them out. Unsurprisingly, this era witnessed three voting-rights amendments that disparately benefited black voters—the Twenty-third Amendment, folding the District of Columbia (with its large black population) into the electoral college; the Twenty-fourth Amendment, condemning various systems of tax-based disfranchisement (systems that had notoriously been used to dampen black suffrage); and the Twenty-sixth Amendment, which guaranteed the right to vote to young adults (who were then and who still are disproportionately nonwhite). All three amendments won broad support among both Democrats and Republicans.