Wednesday, June 05, 2013

The Place of Parties in the Constitution

By Mike Dorf

Occasioned by the passing of Senator Lautenberg, my latest Verdict column sets out two criteria that I believe that governors generally ought to apply in naming interim replacements to fill Senate vacancies: 1) Name someone of the same political party as the departed Senator; and 2) name someone who will not run for election in the special or general election, i.e., a caretaker Senator.  Both criteria aim to preserve the status quo: The first criterion respects the state electorate's most recently expressed party preference for the seat; the second criterion avoids conferring the advantage of incumbency on a candidate who never was elected.

The column explains why governors typically do not name a member of the opposite party and only sporadically name a caretaker.  It then argues that state or federal laws that constrain a governor's choice along the foregoing lines are probably unconstitutional.  I conclude that we are left with suboptimal reliance on the statesmanship of governors--whose own political constraints make such statesmanship difficult.  That state of affairs, I suggest, is at least partly the result of the fact that we have a political system that is utterly dependent on political parties but a Constitution that was designed by men who loathed parties.

Here I want to add a few words about the more general issue of how parties are treated under the Constitution.  It's not surprising that, given the original Framers' views, the original Constitution nowhere mentions political parties.  What is surprising is that, with one small exception, none of the amendments do either.  After all, political parties developed very early in American history, leading to the stalemate in the 1800 Presidential election.  Yet the 12th Amendment, which facilitated smoother elections with party-based presidential tickets, does not expressly acknowledge the existence of parties.  Neither do any (but one) of the subsequent election-related amendments: the 15th; 17th; 19th; 23rd; or 26th.  The one exception is the 24th Amendment, which forbids the imposition of a poll tax in federal elections, including "primary" elections.  That's it.  In the entire Constitution, the only recognition of political parties is that one, almost tacit, acknowledgment that primary elections happen.

Contrast provisions of some other national constitutions, like Article 4 of the French Constitution or the German Constitution's Article 21--which protect political parties as such.  To be sure, U.S. case law construes the First Amendment right to political association to afford broadly similar rights to form political parties, but the text of the U.S. Constitution does not say (as some other constitutions do) that political parties are essential to representative government.  Meanwhile, some non-democratic constitutions, like the Chinese Constitution, expressly provide for the central role of just one party (in this case, the Communist Party).

The omission of any express role for parties in the text of the Constitution is not merely a stylistic oversight.  It has potentially important consequences for how our system of government functions.  The underlying theory behind Madisonian checks and balances is that various institutions would check one another: states versus national government; Congress versus the President.  Political parties re-direct loyalties away from institutions.

Nonetheless, some scholars have explained that political parties actually do a creditable job of implementing, rather than frustrating, the original vision.  For instance, in a 2000 article, Larry Kramer  argued that political parties are a key, and often overlooked, vehicle by which the states take advantage of what Herbert Wechsler called the "political safeguards of federalism"--the protection for state autonomy in the structure of the national government.

The picture for separation of powers among the branches is more complex.  As Daryl Levinson and Rick Pildes argued in a 2006 article, during periods of divided government, separation of powers may be even stronger than the framers anticipated: Although there is less loyalty to institutions, party loyalty ensures that if either the House or the Senate is in the hands of the party that does not hold the White House, we can expect vigorous inter-branch competition.  Levinson and Pildes worried that in periods of unified government, party loyalty would mean that separation of powers would not function at all, but they wrote before the use of the filibuster had become as routine as it now has.  In an era in which 60 votes in the Senate are required to accomplish anything substantial, even unified government will usually look like divided government, preserving the separation of powers.

The overall impression one gets from the two papers is that even though the framers thought ill of political parties, such parties in fact play a vital role in implementing the two key structural features of our constitutional system.  From a libertarian perspective, this is good news.  However, from a different perspective, this is terrible news, because the structural features of federalism and separation of powers serve mostly to frustrate the federal regulatory enterprise, and one might fairly conclude that the chief political problem in the United States relative to other advanced democracies is that our regulatory state is under-developed and under-funded.


Searching For Rule Of Law In America said...

interesting read, but i'm still going along with the framers...

their insight still rings true today, and is self evident in that, it's only when party politics are put aside that anything gets accomplished...

--Michael A. Hense

Joe said...

How do state constitutions stack up political party wise, including those passed long past the point where the idea of parties were seen as in bad form?

andy grewal said...

When I read the title of this post, I literally thought that the post would be about how the Constitution addressed parties of the festive kind. A bit disappointing.

Shag from Brookline said...

Recall Nat King Cole's version of "The Party's Over, It's Time to Call it a Day." While perhaps some of the Framers were negative about parties, we quickly got political parties. If the Constitution had specifically proscribed political parties, what might have resulted? People take sides on issues, especially political issues. A party by any other name is still a party. Nat was not singling about politics.

Perhaps cynics might post a suggested constitutional amendment to address political parties. And keep in mind what Will Rogers said about not belonging to an organized political party. And thanks to Citizens United with corporations as people, parties will be well funded.

smith rose said...

Visio Standard 2010 Download offers modern and intuitive diagramming tools to transform complex ideas into aha moments and get everyone on the same page with less time and effort. A diverse set of pre-drawn shapes, pictures, and templates, and new automatic drawing tools make visualization easier than ever.
Visio Professional 2010 Download provides advanced diagramming tools to help you simplify complexity with intuitive and professional-looking diagrams, dynamic and data-driven visuals, and new ways to share via a browser in real time.

Elizabeth J. Neal said...

It was definitely one of the best courses I've taken Denver DUI Lawyer at the law school, primarily because I love any practical course in which I feel like I'm actually learning a real skill or helping DO something!

Unknown said...


seoamine said...

thanks so much for that great blog and thanks also for accepting my links thanks
طريقة عمل الدونات طريقة عمل البان كيك طريقة عمل الكنافة طريقة عمل البسبوسة طريقة عمل الكيك طريقة عمل عجينة البيتزا فوائد القرفه

Unknown said...

thanks so much i like very so much your post
حلى الاوريو الفطر الهندي صور تورته حلى قهوه طريقة عمل السينابون طريقة عمل بلح الشام بيتزا هت كيكة الزبادي حلا سهل صور كيك عجينة العشر دقائق

Unknown said...

penyembuh kencing nanah jimat penyembuh kencing nanah nanah keluar dari ujung penis

Unknown said...

alat kelamin pria keluar nanah obat penyakit gonore cairan nanah keluar dari alat kelamin obat gonore obat herbal kencing nanah obat kencing nanah di apotik apa penyebab penyakit herpes itu obat kencing nanah

Unknown said...

alat kelamin pria keluar nanah obat penyakit gonore cairan nanah keluar dari alat kelamin obat gonore obat herbal kencing nanah obat kencing nanah di apotik apa penyebab penyakit herpes itu obat kencing nanah

Unknown said...

alat kelamin pria keluar nanah obat penyakit gonore cairan nanah keluar dari alat kelamin obat gonore obat herbal kencing nanah obat kencing nanah di apotik apa penyebab penyakit herpes itu obat kencing nanah

Unknown said...

obat ambeien ampuh dan obat wasir paling mujarab dan obat ambeien atau wasir racikan herbal dan cara menyembuhkan wasir dan obat peyakit wasir dan obat herbal wasir dan obat wasir alami dan obat wasir atau ambeien dan obat wasir racikan herbal dan cara mengatasi penyakit wasir dan obat wasir terampuh dan obat wasir herbal dan herbal denature merupakan solusi pengobatan herbal dari denature indonesia

Unknown said...

Obat kencing Nanah De Nature Obat Herbal obat Kutil Kelaminapa penyebab penyakit herpes itu herpes dan apa itu herpes simpleks penyakit herpes pada ibu hamil dan apa itu herpes genital dan gejala herpes genital dan cara menyembuhka herpes genitalis dan cara pencegahan penularan herpes dan bagaimana penyakit herpes bisa menular dan apa itu herpes simpleks dan penyakit herpes pada ibu hamil dan dan cara mengobati herpes secara tradisional dan obat herbal herpes merupakan solusi pengobatan herbal dari denature indonesia