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.