The Anti-Partisan Principle–More Difficult Cases

Reconstruction also presented some more challenging examples of the anti-partisan principle.  Let’s consider some:

1.  The Exclusion of the South from Congress.

In 1865, the Thirty-Ninth Congress refused to seat the Senators and Representatives of the eleven ex-Confederate States.  They were all Democrats, and the folks doing the excluding were mostly Republicans.  How is that consistent with the anti-partisan principle?

One point worth making about this is that under normal conditions we would think that a partisan use of the Guarantee Clause would be out of bounds, even though it represents a political question.  (I think we would, by the way, say the same thing about the suspension of habeas corpus.) The aftermath of the Civil War, of course, was an extraordinary circumstance where this kind of treatment could be justified, though it was a hard question that President Johnson fiercely contested.  (One could make a similar point about the process that was used to ratify the Fourteenth Amendment, of course.)

2.  The 1876 Electoral Commission

When Rutherford B. Hayes and Samuel Tilden ended up in what was essentially a tie after the 1876 presidential election, Congress created a special body to rule on the disputed electoral votes of three states.  That jury consisted of seven Republicans and seven Democrats.  The last member was supposed to be an independent Supreme Court Justice (David Davis), but when he was appointed to the Senate by Illinois the slot went to Justice Bradley, a Republican.  The commission then voted along party lines to give Hayes, the Republican, the presidency.

Resolving contested presidential problems (as the 2000 election demonstrated) is an especially difficult problem.  Is there a nonpartisan way of deciding something so important?  Doesn’t everyone who would be trusted with the power to decide have a vested interest in the outcome?  Even if people are acting in a neutral way, will people believe that?  I’m not sure that this tells us much, though it is worth noting that Congress at least tried to ensure party balance on the Commission.

3.  Andrew Johnson’s Use of the Pardon Power

In the midst of his war with Congress, President Johnson issued a blanket pardon to almost every ex-Confederate.  They were, again, almost all Democrats, and so was he.  Once again, under normal circumstances this would be considered an abuse of power, and perhaps even an impeachable offense.  Was that true then?  Again, it’s hard to say.

Monday I will talk about what all of this means for courts.

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8 Responses

  1. anon says:

    From the beginning, this series of posts has confused me. This post has finally clarified, for me, what’s wrong with your claim.

    What you are calling a principle is more aptly a limitation. When both parties are represented, it is difficult for one to make a constitutional change to the detriment of the other. That’s not a constitutional doctrine, but a political reality.

    But, the 39th Congress shows that when one party is not represented, the limitation doesn’t apply. I’m not sure how the other examples relate to your principle.

    But, I am sure it will impress a 2L and that’s all that matters.

  2. Gerard Magliocca says:

    No. I don’t think that is right. When FDR introduced the Court-packing plan, both houses of Congress were overwhelmingly Democratic. By your logic, the Court-packing plan should have passed. But it didn’t.

  3. Mls says:

    I think there is a widespread belief that the political branches shouldn’t interfere with how the judiciary decides cases, whether through court-packing, jurisdiction- stripping, impeachment or calling judges before Congress to testify. I don’t see this as being the same as, or part of, an “anti-partisan principle.”

  4. Gerard Magliocca says:

    That’s part of the story, but not the entire story. It doesn’t explain some of the other examples that I’ve described. It is true, if course, that the parties check each other. But sometimes that is not possible without some deeper norm about what is acceptable. In the parliamentary tradition, the minority party cannot do much to stop a unified majority party.

  5. Brett Bellmore says:

    Keeping in mind that, at times when a particular party dominates the landscape, it must incorporate people who would, in other times, be members of the other party, it may be that internal dissent within the dominant party substitutes to some extent for dissent between parties. That is to say, if your party has FDA era levels of dominance, it’s not going to be unified. And the people in the party who are closest to the opposing party may not want to so empower the people furthest from the opposing party.

    That is to say, ideological competition continues within the dominant party at times when the opposing party can not sustain it.

  6. Shag from Brookline says:

    Gerard, have you in an earlier post defined what you mean by “anti-partisan principle”? However you define it (but hopefully not in Humpty Dumpty fashion), would it apply uniformly throughout the periods post-Constitution covered by your posts? Are you claiming the existence of an “anti-partisan” gene?

    According to Brett’s two (2) “That is to say, … ” all politics is loco” in any given period.

    And does mls have a cite of a recent poll for his belief?

  7. Joe says:

    The reason for #1 was not partisan. They were not seated because it was deemed that the areas in question were not guaranteeing a republican form of government, that is small “r.” The denial of rights for blacks, not failure to vote “R.”

    #2 show that though there are certain constitutional principles that on some level rise above party, the actual system in place is political and partisan to some extent, including individual actors, so it cannot be completely non-partisan.

    #3 is like #1. He didn’t pardon them because they were Democrat. Also, they weren’t all Democrats. Alexander Stephens (I didn’t check if he was pardoned, but he’s not an anomaly) was a Whig. Why was this a partisan abuse?

  8. Mls says:

    Shag- I don’t have a poll, but there is a book by Charles Geyh called “When Congress and the Courts Collide” that discusses the development of the views I am talking about.