The Anti-Partisan Principle–More Difficult Cases

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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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.