The Anti-Partisan Principle

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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9 Responses

  1. jon a. says:

    So, would the admission of a free state during the 1850s be unconstitutional because it would have given Republicans an advantage in the Senate? This is a facetious question, but how do you distinguish between partisan advantages and legitimate changes to the government?

    Also, isn’t it equivocating a little bit to talk about Senate “precedents”?

  2. Gerard Magliocca says:


    Many people would have thought that such an admission was unconstitutional, though it would not have been justiciable.

    No, not at all. Every institution has precedents. How much authority they have is another question.

  3. Brian Tamanaha says:

    How does gerrymandering fit with your anti-partisan principle?

  4. Gerard Magliocca says:

    I’m not sure yet Brian. You could say that partisan gerrymandering is not a one-way street. It lets one party get an unfair advantage in some states and another get an advantage in others. That is not great, but it is not clear that there is a systemic advantage (and tolerance for the practice would suggest that people do not think that this violates the anti-partisan principle). But I need to think about that more carefully.

  5. Brett Bellmore says:

    Powerful norm is fine. It’s free of the presumption that the courts ought to be enforcing it, unlike the actual Constitution.

  6. Joe says:

    The term “constitutional” has various connotations and the OP is correct to seek out certain understood “constitutional norms” or whatever that rise above some “powerful norm.”

    Still, the rules for impeachment is how history thus far understands the limits of what is truly a “high crime or misdemeanor” for impeachment purposes. It is understood that mere partisan concerns is not enough there. I don’t know how much F.10 factors in here. One faction cannot get too much power by passing a law that violates the 1A either.

  7. Jimbino says:

    What is there in the Constitution to keep:

    married folks from overtaxing singles?
    breeders from taxing non-breeders for their children’s sake?
    brown-eyed folks from taxing the blue-eyed?
    tall people from taxing short people?
    fat people from denying jobs to skinny people?

  8. Brett Bellmore says:

    “One faction cannot get too much power by passing a law that violates the 1A either.”

    In theory, no faction should be able to get ANYTHING by passing a law that violates the 1st amendment; Not “too much” power, not “a tiny increment” of power; The 1st amendment isn’t a norm, it’s the highest law of the land, it’s not supposed to be violated AT ALL, regardless of what’s sought by the violation.

  9. Joe says:

    Yes, I did not intend anything else — “cannot” here means “does not have the LEGITIMATE power to do so.” I didn’t mean to say it was merely a “norm.” You “can” break norms. It might be gauche or something, but it’s allowed.

    That was my point — the impeachment example is based on the understanding that there is a constitutional limit, that it is not a “no contest” vote, it is a high crime or misdemeanor. The question might not be justiciable (at least under the Walter Nixon precedent) but still.