America's Unwritten Constitution: The Precedents and Principles We Live By (66 page)

THREE OTHER TWENTIETH-CENTURY AMENDMENTS
intertwined even more tightly with party politics, with the written Constitution’s formal rules both reflecting and reinforcing specific protocols of America’s two dominant political parties.

By providing for direct popular election of senators, the Seventeenth Amendment, ratified in 1913, constitutionalized a practice that was already in place in various states where one party dominated the political landscape and routinely held primary elections to determine its choice for senator. In such states, these primaries functioned as direct senatorial elections, de facto, even before the amendment came along.

A similar story can be told about the vice-presidential selection process. For most of the nineteenth and early twentieth centuries, party conventions did not invariably rubber-stamp the running mate most preferred by the presidential nominee himself. More recently, both major parties have consistently invited the presidential nominee to handpick his vice-presidential running mate. In perfect harmony with this emerging party practice, the Twenty-second Amendment, ratified in 1951, limited presidents to two terms, thereby giving presidents more reason to work closely with their vice presidents. For a second-term president seeking to extend his policies and cement his legacy, personal reelection is no longer an option, but election of his own handpicked running mate remains permissible. Whereas the vice president under the Philadelphia plan was apt to embody the president’s biggest obstacle, the vice president under the new rules is apt to embody the president’s best opportunity—an opportunity to win a third (and even fourth) term by proxy.

The Twenty-fifth Amendment, ratified in 1965, further tightened the relationship between presidents and vice presidents by encouraging presidents undergoing routine surgeries and the like to temporarily hand off power to their handpicked running mates. Another section of the amendment formalized the highly personal tie between America’s two top officers by providing that in the event of a vice-presidential vacancy, the president would name his own protégé, subject to congressional confirmation—a written rule mirroring unwritten party norms giving a presidential nominee the right to name his running mate, subject to the approval of the party convention.

ALAS, THE CURRENT PRESIDENTIAL-SUCCESSION STATUTE
violates the spirit of the Twenty-fifth Amendment, not to mention the letter of the original Constitution. Enacted in 1947, this statute provides that if both the president and vice president are unable to function because of death,
disability, removal (via impeachment), or resignation, presidential power devolves to the speaker of the House. The first big problem with this statute is textual: It runs counter to the Constitution’s succession clause—Article II, section 1, paragraph 6, which empowers Congress to specify “what Officer” should take over in succession situations. A member of Congress, such as the House speaker, is simply not an eligible “Officer” within the meaning of the succession clause, which was designed to enable cabinet officers, not congressmen, to step up to fill the breach.

The second big problem with the statute implicates the spirit of the Constitution—the “post-Georgian” Constitution, the one we must nowadays read through the prism of America’s party system. Above and beyond the formal textual separation of powers—the distinction between Article I legislators and Article II “officers”—we must also attend to the informal but no-less-important separation of
parties
. Crucially, the president and the speaker may often be leaders of opposing parties. Indeed, except for Jimmy Carter, every one of America’s eight most recent presidents has for at least part of his time in office faced an opposition-party speaker. The 1947 statute threatens to return America to the instability of the original Philadelphia plan, with a potential political enemy of the president improperly positioned to gain presidential power in the event of mishap. Shades of Adams and Jefferson! (And let’s not forget Ben Wade in the Johnson impeachment trial.) Cabinet succession, by contrast, coheres with the officer-means-officer letter of the original succession clause and with the executive-branch-teamwork and party-continuity spirit of the Decision of 1789, the Twelfth Amendment, and the Twenty-fifth Amendment. In general, if a president cannot complete his term, it should be completed by a party mate whom he has chosen, either personally or by proxy.
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It might be thought that the very existence of this 1947 statute represents a large exception to this book’s thesis that America’s actual system of government generally coheres with America’s written Constitution. But, in fact, this statute has never been triggered. This law thus lacks the authority enjoyed by statutes that have passed the tests of time and implementation and thereby acquired the weight of custom and practice. The statute’s serious and multiple departures from the written Constitution’s letter and spirit make it doubtful that things will actually work smoothly in a future
crisis. Ours remains a culture that worships at the shrine of a written Constitution. Those who are serious about the American constitutional project, and who would like to see the document’s text mesh with actual practice in a way that ultimately strengthens both text and practice, should strive to repeal and replace this misshapen statute before anyone gets hurt.

ALTHOUGH THE ROLE OF POLITICAL PARTIES
in nominating presidents and vice presidents was not explicitly visible in the text of the Twenty-second and Twenty-fifth Amendments, that role lay only inches below the surface of the text for those with eyes to see. In the intervening Twenty-fourth Amendment, political parties actually found their way into the text itself. Proposed in 1962 and ratified in 1964, the Twenty-fourth Amendment outlawed poll-tax-related disfranchisement in all federal elections, including “any
primary
…election” (emphasis added)—that is, any election in which a
political party
teamed up with government to let voters decide whom the party would nominate in the general election.

The explicit language of the Twenty-fourth Amendment invites us to revisit four other amendments, all of which feature the same key phrase as the Twenty-fourth—“the right of citizens of the United States to vote”—or a close variant. None of these four other amendments explicitly mentions primary elections. Were it not for the language of the Twenty-fourth, it might well be an open question whether these other citizen-right-to-vote amendments in fact properly apply in government-run party primary elections. But thanks to the explicit language of the Twenty-fourth, all five citizen-right-to-vote amendments should indeed apply to primary elections, even though in four of the five instances, this application is… unwritten. Put a different way, although the Twenty-fourth Amendment’s words explicitly apply only to the narrow question of poll-tax-related disfranchisement, the amendment’s unwritten spirit invites us to read all preceding and subsequent citizen-right-to-vote language as applicable to both primary and general elections alike.
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The Twenty-fourth Amendment does not apply to all elections. Rather, it proclaims that poll taxes may not operate to abridge the right of citizens
of the United States to vote in the following elections: “any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress.” Left conspicuously unmentioned were, among other things, elections for state and local positions (such as state governors, state legislators, state judges, mayors, city councilmen, and county sheriffs) and noncandidate elections (such as initiatives, referendums, and bond measures).
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By contrast, the Fifteenth, Nineteenth, and Twenty-sixth Amendments sweepingly proclaim that the right of citizens of the United States to vote may never be abridged on account of race, sex, or age, respectively—in
any
election of
any
sort at
any
level of government. These amendments clearly cover more elections than does the Twenty-fourth. Given that the Twenty-fourth Amendment plainly applies to primaries, surely it follows—
a fortiori
, in legalese—that these three universal amendments must also apply to primaries.
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The only other citizen-right-to-vote provision in the Constitution is located in section 2 of the Fourteenth Amendment. That section reduced congressional and electoral-college apportionment for states that disfranchised various adult male citizens. The more widespread the disfranchisement in a given state, the greater the apportionment penalty. But only certain elections counted for this apportionment-penalty clause, namely, “any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof.”

Are primary elections encompassed by this clause? Imagine that a state, in tandem with a political party, disfranchises some group in a state-run presidential primary election, but allows this group to vote in the general presidential election. Should the state pay an apportionment penalty under
section 2? If we simply laid section 2 alongside the Twenty-fourth Amendment for comparison, we might at first think that section 2 was plainly designed to be inapplicable to primary elections. After all, section 2 speaks only of “any election for the choice of electors for President,” and, strictly speaking, primary elections do not directly pick presidential “electors”—that is, members of the electoral college. These electors are picked only in the general (November) election. Indeed, the Twenty-fourth Amendment itself can be read as plainly contradistinguishing “a primary…election for President” from the general (November) “election…for
electors
for President.”

Had section 2 and the Twenty-fourth Amendment been adopted at the same moment, we might have good reason to view this key textual distinction as decisive, and it might make sense to read section 2 as purposefully excluding primaries by pointed negative implication. But section 2 was in fact adopted a century before the Twenty-fourth Amendment. The latter amendment took pains to clarify that government-run primary elections and general elections should be governed symmetrically precisely because the twentieth-century experience had demonstrated that primary elections might well be the main event. (Were it not for the 1960 primary elections, which JFK swept in dramatic fashion, it is doubtful that he would have persuaded enough party insiders to support him, despite his youth and Catholicism. And in many notable twentieth-century electoral contests for state and congressional positions, the decisive races had occurred in party primary elections, not the November general elections.)

If primaries and general elections merited symmetric treatment under a 1960s amendment safeguarding “the right of citizens of the United States to vote,” then they also merited symmetric treatment under an 1860s amendment that also aimed to safeguard “the right to vote” of “citizens of the United States.” The omission of any specific mention of primaries in the 1860s amendment was not purposeful or pointed. Rather, primary elections were neither specifically mentioned nor explicitly omitted for the simple reason that these elections were not a particularly prominent feature of American politics in the 1860s, and only became so later on.

True, if we interpolate “primary elections” into the express provisions of section 2 of the Fourteenth Amendment, we are, in effect, reading between the lines. But if we do not do so, the Constitution as a whole fails
to make sense. Like the Fifteenth, Nineteenth, and Twenty-sixth Amendments, section 2 of the Fourteenth has a far wider textual catchment basin than does the Twenty-fourth Amendment. Ordinary state elections for state legislators, executives, and judges fall within the plain sweep of section 2 but lie beyond the explicit scope of the Twenty-fourth Amendment. Unless we interpolate “primary elections” into section 2, we reach the perverse result that section 2 covers less ground than the Twenty-fourth Amendment.
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In short, later amendments often contain a powerful, albeit unwritten, gravitational pull that invites reinterpretation of earlier amendments so that the Constitution as a whole coheres as a sensible system of rules and principles. To borrow a phrase from John Marshall, we must never forget that it is a Constitution—a single rational document, as opposed to a pile of unconnected clauses—that we are expounding. In previous chapters, we confronted the question of gravitational pull where voting rights and women’s rights were concerned. For now, let us not lose sight of the remarkable fact that no fewer than five of the fifteen amendments ratified after Jefferson’s tenure in office explicitly or implicitly address primary elections, and therefore directly address political parties.
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A SIMILAR PICTURE COMES INTO VIEW
when we venture beyond the words and deeds of America’s constitutional amendments to examine the formal and informal structure of daily governance in America. Here, too, political parties have in fact tightly and enduringly woven themselves into the very fabric of the American system—so tightly and enduringly that we
should regard the current two-party system as a basic element of America’s Constitution.

For over a century, framework statutes regulating the American administrative state have explicitly taken political parties into account in an effort to maintain a carefully balanced two-party system. The Federal Election Commission, which was redesigned after the Court’s 1976 ruling in
Buckley v. Valeo
, contains an even number of voting members—six, to be precise. By law, no more than three commissioners “may be affiliated with the same political party.” Various other statutes governing commissions comprising an uneven number of members—typically five or seven—have tried to prohibit any political party from controlling more than a bare majority of commissioners. Of the seven seats on the United States Sentencing Commission, for example, no more than four may be held by “members of the same political party.” Likewise, the notable 1914 law creating the Federal Trade Commission provides that no more than three of its five commissioners “shall be members of the same political party.” Identical language appears in the statutes creating the Federal Energy Regulatory Commission (a reorganized version of the earlier Federal Power Commission), the Equal Employment Opportunity Commission, the Commodity Futures Trading Commission, the Nuclear Regulatory Commission, and several other independent agencies—including the Securities and Exchange Commission, whose enabling statute also provides that “in making appointments members of different political parties shall be appointed alternately as nearly as may be practicable.” The Federal Communications Commission statute has slightly different wording, but it, too, prohibits any party from having more than three out of five members. The statute structuring the Consumer Product Safety Commission features language regulating party “affiliat[ion]” rather than “member[ship]”; thus, no more than three of the five commissioners may be “affiliated with the same political party.” Deploying yet another verbal formula echoing the landmark 1887 act that established the once famous, but now defunct, Interstate Commerce Commission, the enabling statute of the Federal Maritime Commission proclaims that no more than three of its five members may be “appointed from the same political party.” This language also appears verbatim in the statute creating the National Transportation Safety Board.
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