The Anti-Partisan Principle

Yesterday I said that I would do a set of posts on unwritten constitutional norms.  (I won’t say “unwritten unwritten,” as that went over like sour milk.)  One of my observations was that the Court-packing crisis of 1937 should be understood as holding that fundamental structural change may not be undertaken in a knowingly partisan way.  In other words, the problem is not whether Congress expands the size of the Supreme Court.  The problem is doing that in a way that is intended to benefit a particular faction.

This anti-partisan principle connects many of the other powerful precedents set by the political branches.  Consider some examples:

1.  Justices may not be impeached and removed due to mere political or ideological disagreements.  (The failed impeachment of Samuel Chase).

2.  The President may not be impeached and removed due to mere political or ideological disagreements.  (The failed impeachment of Andrew Johnson, though this only works as I’ve framed it if that removal would turn the White House over to a different faction, which was true in 1868.)

3.  The antebellum rule that a state could not be admitted if that would upset the balance between free and slave states. (1820-1861)

4.  The admission of Hawaii (a Democratic state) and Alaska (a Republican state) as a pair in 1959.  (This also, BTW, probably explains why the constitutional amendment proposed by Congress to give DC congressional representation was not ratified by the states in the 1970s.  Everybody knew that would mean two more Democratic Senators for decades.)

5.  The way in which the size of the House of Representatives was adjusted from 1789 until 1929 (when the number was basically fixed at 435).   (I’ll explain that more later.)

None of these are judicially enforceable, of course.  A more difficult question is whether, as I’ve previously suggested, this could also explain why the Chief Justice refrained from striking down the individual mandate.

Anyway, no more posts until Monday.  The Masters is on, you know.

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3 Responses

  1. Shag from Brookline says:

    Gerard takes a “Mulligan Mulligan” (an unwritten unwritten rule of golf) with his: “Anyway, no more posts until Monday. The Masters is on, you know.” before he T’s up after this tease of a post.

  2. Dan Cole says:


    I’m not sure the failed impeachment of Justice Chase represents the principle of non-impeachment for mere political or ideological disagreement. The man was literally prosecuting sedition cases from the bench, for goodness sake.

  3. Joe says:

    It was determined that certain things weren’t “high crimes and misdemeanors” … not sure how this is different from determining certain things aren’t protected speech. We are interpreting terms here and the meanings aren’t clear, true, but “unwritten” seems misleading in some fashion.

    #3/4 seems more the sort of thing being talked about here, that is unwritten norms of how to apply constitutional provisions that can be changed. Not quite the same as saying political isn’t a crime.

    As to ‘judicial enforceable’ regarding the first points, well, yes, under the Walter Nixon case, but that itself is questionable, as seen by the concurring opinion. It is true there are certain ‘political questions’ that won’t be judiciable that still follow constitutional rules of some sort. That might be the point, perhaps.