The Anti-Partisan Principle–After the Civil War

I’ve talked about my research on the anti-partisan principle with respect to political precedents (or constructions) set during the “Revolution of 1800” and slavery.  Now let’s turn look at two other prominent examples.

1.  The Impeachment of Andrew Johnson.

The chief lesson that we now draw from the acquittal of Andrew Johnson is that presidents should not impeached and removed merely because they are unpopular or at odds with Congress.  In other words, the principles implicated are separation-of-powers and respect for the fixed term of four years.  The story is more complicated than that, as my Bingham biography explains.  But there also a basic problem with the standard description.

The removal of President Johnson would have caused a transfer of party power by Congress.  Johnson was a Democrat who was part of a unity ticket in 1864. After Lincoln’s assassination, the Vice-Presidency was vacant.  If Johnson had been removed, the new President would have been Benjamin Wade, a Radical Republican from Ohio who was the President Pro Tempore of the Senate.  (That was how the line of succession was set up then.)  My description of the Johnson precedent an an anti-partisan event is a better description, although after the ratification of the Twenty-Fifth Amendment the issue is usually moot since a loyal running mate will typically succeed an impeached and removed President.

2.  The Court-Packing Plan

As I pointed out in my initial post on this subject, the number of Supreme Court Justices is not constitutionally fixed at nine.  The defeat of FDR’s 1937 proposal, though, does establish that any attempt to change the number of Justices on a partisan basis is wrong.  Giving a President and his party four new Justices through a statute or extraordinary event, such as a plane crash, is viewed as “unconstitutional,” even though, formally, it is not.  That was not true prior to the 1930s–the Court’s size was manipulated for partisan reasons during the Johnson presidency and people thought that was OK.

Next time I’ll talk about some other modern precedents related to the admission of states.

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