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The Oxford Handbook of the U.S. Constitution edited by Tushnet, Mark; Levinson, Sanford; Graber, Mark A (10th September 2015)

Part II Political Science, Ch.11 The Uneasy Place of Parties in the Constitutional Order

Russell Muirhead, Nancy L. Rosenblum

From: The Oxford Handbook of the U.S. Constitution

Edited By: Mark Tushnet, Sanford Levinson, Mark A. Graber

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 17 October 2019

(p. 217) Chapter 11  The Uneasy Place of Parties in the Constitutional Order

The central charge against today’s parties is that they are not a good fit with the U.S. constitutional order. They are more ideological, more principled, more cohesive, and more disciplined than parties of the recent past, especially the ideologically indistinct parties of the mid-twentieth century that gave rise to the golden age of bipartisanship. They are much like the “responsible parties” that reformers of the mid-twentieth century hoped for: they have distinct policy programs, and offer voters a real choice. At the moment, the United States has what might be called parliamentary parties.1

The trouble is, the U.S. Constitution did not establish a parliamentary government. The Constitution, of course, established a separation-of-powers system, with an independent executive and a bicameral legislature where each house has a distinct electoral base. When parliamentary-style parties divide the government (splitting control of the two houses of the legislature, or of the legislature and the executive), they can overwhelm a separation-of-powers system. This came to pass after the Republican Party won the House of Representatives just two years into President Obama’s first term. Party rivalry imperiled the routine process of legislation. In some moments the mutually defeating consequences of partisanship took on the character of a constitutional crisis—most notably when an increase to the debt limit became almost impossible to broker, resulting in the U.S. credit rating being downgraded. Less legislation was passed in the 2012–2014 Congress than at any time since political scientists began measuring legislative “productivity.”2 Arguably, parliamentary-style partisanship brought a separation-of-powers government to its knees.

(p. 218) Amid partisan deadlock of recent years, for many the ideologically amorphous parties of old (which were not much cherished at the time) seem a better fit with the Constitution.3 In the post–World-War II era, when each party spanned a broad ideological spectrum, passing important legislation meant forming bipartisan coalitions. These coalitions make governing possible, especially when the parties split control of the government. For the United States’ constitutional order to function, it seems that either the parties have to become less ideological or the Constitution has to become more parliamentary. The latter path, which requires wholesale constitutional change, is profoundly unlikely. To align with the needs of the U.S. constitutional order, in this argument, the parties somehow have to change.

I.  The Unified People and the Constitution

Parties present a deeper problem for the U.S. constitutional order than this brief account of our present discontents suggests. The Constitution gives parties an ambiguous standing. On one hand, parties have no formal constitutional status—the eighteenth-century Constitution nowhere mentions parties. Over time, parties became the norm, and more recent national constitutions “spend some time on their definition and regulation. Whereas fewer than 10% of constitutions in force in 1875 mention parties, over 80% of those in force in 2006 do so.”4 Parties in the United States, by contrast, remain extraconstitutional, and in certain ways seem contrary to the spirit of the Constitution. On the other hand, the Constitution issues a concrete invitation to parties and partisanship, as it cannot seem to “work” without them. This leaves parties both part of the constitutional order and outside the constitutional order—an ambiguous location that has sown great confusion in both the popular mind and in Supreme Court jurisprudence.

This ambivalence reflects two enduring and competing images of the relationship between the citizenry and the U.S. Constitution. In one image, the task of the Constitution is not to “refine and enlarge” public views, but simply to empower them.5 In this account, the people stand as a natural whole, united in their good (common) sense and decency. The Constitution is merely a contrivance that collects and empowers the popular will. Constitutions do not have a moral job, only a mechanical one: they are necessary not because the people are divided or mistaken, but because people are geographically scattered and cannot conveniently govern themselves directly. To maintain popular control over the government, a constitution should render the government as legible and accountable to the people as possible. That means keeping government simple, so the people, from (p. 219) a distance, can understand what is going on in government and react appropriately when some few try to turn the power of government to their own advantage.

We see this view of constitutionalism, for instance, in Thomas Paine’s Common Sense, which devotes only a few paragraphs to the barest outline of a new constitution. Paine’s implicit message was that constitution-building was a simple matter: the great task was not designing a constitution, but empowering the mass of the people. For example, Paine does not see any function to representation other than as a necessity that comes about because of increases in population:

But as the colony increases, the public concerns will increase likewise, and the distance at which the members may be separated, will render it too inconvenient for all of them to meet on every occasion as at first, when their number was small, their habitations near, and the public concerns few and trifling. This will point out the convenience of their consenting to leave the legislative part to be managed by a select number chosen from the whole body, who are supposed to have the same concerns at stake which those have who appointed them, and who will act in the same manner as the whole body would act, were they present. …prudence will point out the propriety of having elections often; because as the ELECTED might by that means return and mix again with the general body of the ELECTORS in a few months, their fidelity to the public will be secured by the prudent reflection of not making a rod for themselves.6

The business of writing a constitution was not one that Paine thought would require great delicacy or uncommon wisdom, and could be worked out by merely collecting a few “straggling thoughts.”7 The essentials would be simple: “LET the assemblies be annual, with a President only. The representation more equal. Their business wholly domestic, and subject to the authority of a Continental Congress.”8 Working up a constitutional design was just a matter of dividing up each colony into smaller districts—the exact number would not matter, “six, eight, or ten” would do—and facilitating elections from each district. As Paine said, “He that will promote discord, under a government so equally formed as this, would have joined Lucifer in his revolt.”

Immediately after the revolution, the philosophy of simple constitutionalism was embodied in the 1776 Pennsylvania constitution. That constitution established a unicameral legislature with annual terms: Why have two houses to represent one class of people? The constitution contained no property qualifications for office holding or voting, and established a mandatory rotation in office.9 It also stipulated that legislative proceedings be open to the public.10

The underlying political-sociological assumption was that the people could not divide against themselves. They could be divided by the artful manipulations of politicians ambitious for office, power, and privilege. But this division would always be a distortion of the natural whole, a distortion imposed by the self-serving ambitions of the few. The task of a constitution was to preserve and to empower the natural whole—the people—by (p. 220) translating their common sense into authoritative law. This required a simple constitution that made government action legible to the people (a unicameral legislature is easier to follow and to understand than a more complicated design). Short terms of office gave people ample opportunity to replenish the legislature with popular common sense. Mandatory rotation in office would provide one more obstacle to the possibility that elected representatives would develop an interest of their own opposed to the interest of the people.

II.  The Divided People and the Constitution

The second, rival image of constitutionalism arises from the view that human divisions are not artificial and do not disappear when aristocratic classes are absent. Even a democratic people is naturally divided: it is divided by wealth, by geography, by religion, and by economic interests. Social and political institutions will not make division disappear. The ultimate origin of social division is in human nature; we are divided between groups because we are divided within ourselves. All of our tendencies do not naturally align, and our best intentions are often the result of inner deliberation and struggle. What a good constitution does at the individual level also applied to the polity: it elicits and empowers our best intentions.

Moreover, ambition creates its own impediment to good government. Ambition causes people to set themselves apart, which—depending on what direction this takes—may either serve or destroy the public good. Where simple constitutionalists try to protect the unity of the people from the ambitious few, complex constitutionalism tries to direct ambition to the public good.

This was the aim of John Adams—the father of the Massachusetts constitution of 1780 and indirectly of the federal constitution of 1787. Where simple constitutionalists such as Paine derogated constitutional forms, Adams believed that successful politics depended entirely on getting the constitutional form right.11 Constitutional design is difficult because constitutions, in his view, did not merely have a mechanical purpose (collecting and empowering the wills of scattered individuals), but also a moral purpose. The ultimate task of a constitution is to inhibit and restrain what is worst in people—the unthinking, passionate impulses to action—for the sake of calling out and empowering what is best—the deliberate, judicious, reflective. This would require a more complex constitution of a more enduring form than the simple constitutionalists could contemplate.

This complexity begins with the legislature, which should be bicameral, not because the society contains different estates that are represented in each house, but because the people themselves are divided by talent, fortitude, luck, religion, ancestry, and more.12 The Senate’s property qualification was three times that of the lower house; in Adams’s view, the Senate was meant to collect the talented and distinguished, the “natural aristocracy” (p. 221) no free society could be without.13 The executive should be unified and wholly independent of the legislature. Justices should be selected for their legal and temperamental acumen, and appointed for life.

These constitutional forms brought the divisions of society into government to ensure that no one group could dominate. Rather than assuming that the people constituted a natural whole, and defining civic virtue in terms of fealty to the common interest, Adams’s constitutionalism assumed that the people would be divided by capacity and ambition. His constitution invites individual ambition for the sake of both maintaining it in public view and orienting it to public purposes. Given the divisions of society, these purposes would never be immediately evident, even to the most public-spirited. On the contrary, defining public purposes required that the constitution establish a distance between the people at large and authoritative law. This distance was meant to facilitate the reflection, deliberation, negotiation, and judgment that the people—even if they did stand naturally as one—could not be relied on to manifest steadily.

III.  Constitutional Anti-Partisanship

These two views—the Constitution as an instrument of popular purpose, and the Constitution as a salutary restraint on the popular will—arose as soon as Americans began experimenting with written constitutions in the late eighteenth century, and both views remain powerful to the present day. Yet each of these rival and simultaneously enduring images of the relation between the people and their constitution nourishes anti-partisanship. In simple constitutionalism, where the people stand naturally as one and the job of a constitution is merely to translate popular interests and views into authoritative laws, there is little if any obvious reason for parties. Complex constitutionalism attempts to substitute for popular partisanship constitutional forms such as the separation of powers and representation. Whichever view of constitutionalism one takes, parties and partisanship suffer: hence, the uneasy place of parties in the U.S. constitutional order.

When we take the view of simple constitutionalism, parties threaten to interrupt the natural unity of the people and introduce unnatural division and discord. This understanding informed Washington’s Farewell Address of 1796, in which he famously warned against the “baneful effects of the spirit of party.” Washington is aware of the argument that parties can be “useful checks upon the administration of government,” and while allowing that they might have a rightful place in monarchies, he denies that parties should have any place in republics. “In governments purely elective, it is a spirit not to be encouraged.” Parties empowered a “small but artful and enterprising minority of the (p. 222) people”—the ambitious few who would substitute themselves for the “delegated will of the nation.”14 This is always the story with political holism: the community, the nation, the people, stand naturally and pre-politically as one. Parties interrupt and disturb this natural unity, to the benefit of the enterprising, the ambitious, the conniving, who would pervert the constitution to serve private ends.

Parties have no place in simple constitutionalism, that is, unless the constitution threatens to be corrupted by the few. In that case, a party becomes necessary—a party of the people, charged with restoring the constitution to popular control. This seems to have been Madison’s own diagnosis of the emerging party divide in the 1790s. The “anti-republican” party, Madison writes, consists of those who “are more partial to the opulent than to the other classes of society; and [have] debauched themselves into a persuasion that mankind are incapable of governing themselves.” The republican party, on the other hand, believes that the people are capable of knowing what counts as good government, and therefore can both empower and control their government. The only distinction it is concerned with is that between “enemies and friends of good government.” Although Madison says he writes as a “contemplative statesman,” not as a partisan, it is clear that only one of the parties he describes is legitimate. While he thinks the party divide might prove durable, he does not suggest it should be: the anti-republican party has nothing to contribute, and it would be better if it were definitively defeated. In Madison’s view, only one party is aligned with the constitutional order: the party of the people. In this view, parties—or party contestation as such—is not aligned with the constitutional order.15

Madison was addressing the “first party system”—the divide that arose as soon as the U.S. Constitution was adopted in the 1790s. The idea that the primary task of a constitution is to empower the people, rather than to form, constrain, and guide popular judgment, has often informed the development of American parties since then. Parties have made the Constitution, in short, more democratic. For instance, the Twelfth Amendment (1804) made it more likely that presidential elections would be decided by the people (though the mediating extraconstitutional institution of party) rather than by the House of Representatives.16 Martin Van Buren’s successful effort to revive partisan contestation in the 1820s and 1830s made national politics a more emphatically popular affair.17

But the full revival of simple constitutionalism came later, with the late nineteenth century and early twentieth century Progressive attack on the patronage parties that had grown up in the nineteenth century. The patronage-based party betrayed popular democracy, in the Progressive’s view, by allowing party elites to direct governmental power to the service of private and special interests. Parties were seen as agents of this corruption.18 To displace parties and put the people in more immediate control of the formal institutions of (p. 223) government, Progressives advocated for such institutions of direct democracy as the referendum, the recall, and the direct nomination of party representatives in primary elections. None of these reforms was friendly to parties and partisanship, and several were explicit attempts to remove the party organization as a mediating impediment between the people and the formal institutions of government. These reforms reflect—as the spirit of constitutional reform continues to do so—the belief that the constitution is merely the instrument of the popular will—and that when it comes to obstruct the authoritative expression of the popular will, it should be changed.19

Still, complex constitutionalism—the insistence that more elaborate constitutional forms, or checks and balances, are necessary to distill the common interest from amid the divided condition of mankind—nonetheless endures, if only because it distinctively accounts for many enduring features of the original U.S. constitutional design. It too underwrites a distinctive and familiar strain of anti-partisanship, one that accentuates the very uneasy place of parties in the U.S. constitutional order.

The most direct statement of this anti-partisan view comes from Madison (the pre-partisan Madison of the 1780s rather than the partisan Madison of the 1790s) in that most famous of founding documents, Federalist 10. There he offers his warning against factions—groups opposed to the rights of individuals or the “permanent and aggregate interests of the majority”20—especially factions that constitute a majority of the people. Such factions cannot be contained by the mere operation of majority rule, and are historically the bane of democracies.

The solution to the problem of faction consists in what today constitutes a familiar set of constitutional innovations: representation, bicameralism, and a separation of powers. All of these were meant to create a deliberative or constitutional space that would substitute for parties, at least if parties were akin to factions; in this respect the Constitution suggests that parties are not necessary to democracy. The institutional solutions that were meant to cure the problem of parties-as-factions were intended to facilitate “good administration” that citizens would appreciate from a safe distance.

Representatives, as Madison conceives them in Federalist 10, would not mirror the attributes of concrete social groups or constituencies or act as delegates. In this, Madison offered something radically different from the mimetic ideal of representation that dominated the Revolutionary and Founding periods in America.21 Madison aimed to sever the relation between representatives and natural communities that arise on their own around a shared economic way of life or religious faith. By situating representatives in large districts, Madison sought to liberate them from “local prejudices.” In large districts, voters would not be able, Madison hoped, to vote for people like themselves. People, Madison hoped, would select for those whose “wisdom would best discern the true interest of their country.” In short, representation was not supposed to produce simply “responsive” representatives, but outstanding characters who could use their judgment to discern the “permanent and aggregate interests of the community.”22 Madison resisted an attempt to revise what (p. 224) would become the First Amendment to affirm the “right of the people… to instruct their representatives.” As Thomas Hartley, Madison’s ally in that debate, said, “the principle of representation is distinct from an agency.”23 For Madison, the independent representative is a substitute for the kind of direct connection that partisan linkages to the electorate establish. Put differently, constitutional institutions such as representation (in large districts) are meant to displace partisanship, by making it both ineffective and unnecessary.

The same can be said even more emphatically for bicameralism and the separation of powers. “Ambition must counteract ambition” is one of the most famous phrases of The Federalist. This is often inferred to mean that the Constitution checks individual ambition against individual ambition in a manner that negates the effect of each—leaving a more pure residue that is more aligned with the common good. The Constitution is a “machine that would go itself,” generating moral outputs from amoral inputs.24 What this view often neglects is the way “ambition” in this context maps onto a constitutional institution. Yes, ambitious people run for Congress or the Senate. But for their ambition to have any satisfying effect—in order for them to have power—the legislative House they serve in also needs to be powerful. In this way, individual ambition is meant to prompt members of the House and the Senate to be jealous of the privileges and powers of the House to which they belong. They will be jealous of “encroachments” by the other house, and will be averse to simply rubber-stamping what the other house passes. It is because of individual ambition that the Senate might check the House, or that the House might refuse to compromise with the Senate.

Bicameralism was intended to direct the primary loyalty of legislators not to a party but to a legislative institution. Democrats in the Senate—if Madison’s view of the separation of powers held—would think of themselves as senators first, and Democrats second. They would hesitate before cooperating with Democrats in the House simply because they are Democrats. To cooperate instinctively with fellow partisans in the other legislative house would diminish the power of one’s own house, and would thus make it a less effective vehicle for realizing one’s own ambition.

The same constitutional logic could be applied to the separation of powers. Hamilton expected the presidency to attract people of colossal ambition, whose “love of fame” is their ruling passion.25 Such types will not be prone to “servile pliancy” in the face of legislative—or popular—passions, will not be prone to flatter popular prejudices, and will resist the legislative tendency to exert “imperious control over the other departments” of government.26 Just as senators will be most jealous of the prerogatives of the Senate in Madison’s view, so presidents will be most protective of the powers of the executive office in Hamilton’s view. They will not be partisans—standing with their fellow partisans in the House and the Senate. Their ambition will orient them not to party but to their (p. 225) constitutional “department.” Or as Madison wrote in Federalist 51, “the interests of the man must be connected to the constitutional rights of the place.”27

Every once in a while, one can see the Madisonian image worked out in practice—as in, for instance, the late Senator Robert Byrd of West Virginia, who studied the Senate’s history and defended its distinctive privileges at every sign they might be slighted.28 But more often, the Madisonian logic of institutional loyalty is overwhelmed by party loyalty. Individual senators or members of Congress do not identify with their legislative house so much as they identify with their party. Presidents too relate to the legislature as partisans, and they have a much easier time getting their agenda past fellow partisans than they do with the partisan opposition, and their behavior is more profoundly affected by whether the legislature is controlled by the opposition party than it is affected by the mere fact that it is a different constitutional department. Party overwhelms the separation of powers when one party controls both houses of the legislature and the executive.

IV.  Parties and the Separation of Powers

As Daryl Levinson and Richard Pildes say in an astute article about why the reality of partisanship matters more than the constitutional ideal of separation of powers, “The success of American democracy overwhelmed the Madisonian conception of a separation of powers almost from the outset, preempting the political dynamics that were supposed to provide each branch with a ‘will of its own.’”29 There are really two systems of separation of power, they show. One holds when the parties divide control of the presidency and either or both houses of the legislature. Under these conditions, something like the Madisonian system prevails—though inter-branch contestation is motivated more by rival commitments to partisan policies and programs than by identification with one’s branch of government. In contrast, during periods of unified party control, the constitutional separation of powers is displaced by the more powerful force of partisanship, and one party rules over the whole of the national government.

This prospect of party government is what allows the eighteenth-century Madisonian constitution to work in the modern era, in the view of those such as Woodrow Wilson, who was among the first to advocate it. Wilson regarded the Constitution as a “Whig invention” that reflected the seventeenth- and eighteenth-century British Whig’s desire to curb and to constrain the power of the king.30 The Whig constitution was not a “democratic theory,” but on the contrary a device “intended to prevent the people as a whole from having at any moment an unobstructed sweep and ascendancy.”31 The extraconstitutional device of parties was developed, Wilson thought, to overcome the incoherence that arose from the Constitution’s separate and disconnected branches. Parties, he wrote, “are necessary to (p. 226) hold the things thus disconnected and dispersed together and give some coherence to the action of political forces.”32 Party government is what allows the Constitution to work in spite of itself.

Yet, as Levinson and Pildes note, Madisonians—and the “Madisonian perspective,” that “undergirds much of constitutional law and theory”—“will view the prospect of unchecked and unbalanced governance by a cohesive majority party as cause for constitutional alarm.”33 For their part, Levinson and Pildes aim to correct the powerful strains of jurisprudence that attend the Madisonian separation of power, but neglect the way that parties have the potential to overwhelm the Madisonian constitution. They acknowledge that concern about separation of powers and “checks and balances” represents a “partial outlook,” one not shared by thinkers such as Woodrow Wilson or political scientists who advocated for more “responsible parties.”34 But their normative stance takes its cue from the Madisonian emphasis on separation of powers, and the reforms they advocate focus on either amplifying the rights of the minority party in the legislature or preventing “strongly unified government from emerging in the first place.”35 Levinson and Pildes want to make party government in particular more difficult and want to “moderate” the parties, so that they are less cohesive and disciplined.36

One might put this normative posture more starkly, and say that party government is at odds with the Madisonian constitutional order. Although Madison himself acknowledged that “the spirit of party” is necessarily involved in the “ordinary operations of government,” the task of the legislator is not to respond to these interests, but supervene over them, and to regulate them with a view to the common interest. Parties in this sense are necessary in the constitutional order, but are also dangerous. In this view the Constitution is not an invitation to party government, but an impediment to it.

In this light, today’s parties, which are more ideologically unified and internally disciplined than at any point since the nineteenth century, pose a threat to the constitutional order. When parties divide control of the executive and one or more branches of the legislature, they amplify the Madisonian separation of powers to the point of impeding the prospects of almost any legislation. When one party unifies government by capturing control of both houses of the legislature and the presidency, partisanship dissolves the salutary checks intended by a separation of powers. Parties overwhelm the Constitution either way: they make the Constitution unworkable, or they displace it. This threat will seem all the more potent when parties are not the ideologically indistinct catch-all coalitions of the mid- and late 20th century, but are ideologically distinct and cohesive entities, as they are at present. Unified party control today would be more an anathema to the opponents of the party in power and more alienating to centrists than it would have been in the 1950s, when the American Political Science Association’s Committee on Political Parties famously recommended “responsible party government.”37

In this view, the parties that “fit” the Madisonian constitutional order are not ideologically defined. They are broad coalitions, extending across geographic space and durable across time. The do not represent mere sectional interests or factional views, but (p. 227) amalgamate a broad range of views and sentiments. If one party of this sort were to unify the various departments of government, it would not impose a narrow program or serve a single ideological purpose. Indeed, there would perhaps not be that great a difference between unified party control and divided party control—which is exactly what David Mayhew found was the case in what now is thought of as the golden age of bipartisanship, the period spanning roughly from 1940 to 1970. As Robert Brownstein says of the period,

For the next quarter century—roughly the period from the conservative resurgence in 1937 to the passage of the Civil Rights Act in 1964—almost every important decision in Washington required intense consultation and negotiation between and within the parties. Although Democrats controlled the White House for nineteen of those twenty-seven years, and held both chambers of Congress for all but four of them, they could not impose their agenda as the dominant party had done from McKinley through Franklin Roosevelt’s first term. Nor could Republicans consistently advance their ideas. Significant achievements almost always required at least some compromise across party lines.38

To many today, this is the image of party and partisanship that fits the U.S. constitutional order. Whatever the claim for parliamentary parties—parties that are defined by stringent ideological commitments, that are internally disciplined, offer voters a real choice, and aspire to constitute a majority in the legislature and thereby to rule—these are not the parties that fit with the U.S. Constitution. The appearance of such parties, in this view, presents two threats: first, that they will accentuate the separation of powers to the point that the government is immobilized; and second, that one of these parties will collect control of every governmental department and rule, in the process alienating and perhaps oppressing as well all those who disagree with it.

V.  The Promise of Party Government

We think this view of parties in the constitutional order is largely right, as far as it goes. The U.S. Constitution is emphatically not a parliamentary design. The framers considered and rejected making the executive a creature of the legislature (this was Madison’s original proposal in the so-called “Virginia Plan,” which he offered at the outset of the deliberations in Philadelphia in 1787). The framers might have embraced a unicameral legislature, as was tried in Pennsylvania in 1776 (they rather followed the bicameralism of John Adam’s 1780 Massachusetts constitution). Constitutionalists of the eighteenth century were well aware of the view that constitutions should be instruments of popular purpose, and should present no obstacles in the path of popular aims. This view was reflected in what we have called the “simple constitutionalism” of Thomas Paine and others, and it is emphatically not the understanding that informs the national constitution of 1789. By adopting “complex constitutionalism,” the Framers shaped the kind of parties that would be involved in the ordinary operations of government. These parties would be large, inchoate amalgamations that require a great deal of compromise within them. They would be coalitions that (p. 228) could offer a good-faith approximation of the common good—not factions activated by special interests or severe ideologies.

Notwithstanding all this, the complex U. S. Constitution of 1787 did not wholly reject the central tenet of simple constitutionalism: that the Constitution might indeed be used to serve popular purposes. It rejected the idea that its use should be easy, or that it should require only a passing majority support in order to be of use. But all of the Constitution’s power ultimately derives from the people, as Madison explicitly says in The Federalist, and he fully expected that people could both correct governmental policies when they proved unpopular and that—as a result—they would in general endorse the “good administration” that the Constitution facilitated. Put differently, the Constitution invites the people to see the government as something they can control.

Such popular control requires not a mere majority, but a constitutional majority. This technically involves a majority of 435 equally populated districts elected every two years, plus a majority of representatives, only a third of whom are elected every two years from geographically dispersed and unequally populated states, plus a quadrennial majority composed of a combination of population and states (via the Electoral College) sufficiently large to elect a president, plus a majority sufficiently durable to appoint at least five Supreme Court justices. The constitutional majority is spatially dispersed and temporally enduring. One can quarrel about the undemocratic character of the Constitution,39 but the idea is that any such large and dispersed majority will be broad, farsighted, and inclusive; it will not have the narrow focus of concentrated interests or the intellectual discipline of a philosophic system or ideology. It will rather more likely align with the “permanent and aggregate interests of the community.”40 So a party, in order to form a constitutional majority, needs to make a good-faith presentation that it in fact ascertains and represents the permanent and aggregate interests of the community.

To say that the Constitution invites party government of this sort is not to say that the Constitution’s Framers consciously intended it. It seems that Madison at least saw the ideal representative as a sort of “diffused and established” character who would be relatively insulated from concrete interests and sentiments. And he thought, as we have seen, that such representatives would be more identified with their governmental department than with any particular line of policy or ideology. In all this, the Madison of The Federalist proved wrong. Parties appeared as soon as the Constitution was activated, and Madison himself played no small part in their development.

In the 1830s, parties began to explicitly organize the mass electorate, not only for the sake of capturing the grand prize—the presidency—but also for the sake of controlling the legislature. The mass party, an invention of Martin Van Buren, served constitutional purposes by seeking to knit together a coalition that spanned the southern and northern sections of the country.41 Although the Constitution proved incapable of containing this fundamental disagreement in the 1850s, the subsequent ideal of party government also corresponded to constitutional intentions by submitting the ideal to the requirements of the constitutional majority.

(p. 229) Indeed, parties address and remedy a constitutional defect. Even as the Constitution was presented for ratification, those who opposed it worried that the nature of representation in the federal legislature would necessarily be inadequate to represent the variety of the country. As the Anti-Federalist Brutus observed:

In a republic, the manners, sentiments, and interests of the people should be similar. If this be not the case, there will be a constant clashing of opinions; and the representatives of one part will be continually striving against those of the other … a legislature, formed of representatives from the respective parts, would not only be too numerous to act with any care or decision, but would be composed of such heterogeneous and discordant principles, as would constantly be contending with each other.42

Across such a distance and such a diversity of economy and manners, people would simply not view the government as theirs—as filled with people like themselves, who mirrored the sentiments, convictions, and ideas they possessed. And in the absence of viewing the government as theirs, the government would have great difficulty securing voluntary compliance with its edicts and laws. Without voluntary compliance, the government would be able to enforce laws only with force, which would implicate the militia. A government that enforced obedience with a militia would not be a republican government. And thus, the Anti-Federalists feared, the federal government would be too extensive to remain consistent with liberty.43

In rejoinder, the Federalists—principally Hamilton and Madison—argued that indeed the federal government would not solicit the affection and confidence of the people in the same manner as would the state governments. Being closer to the people, the state governments would enjoy a permanent natural advantage, and the state legislatures would always seem a more convincing “mirror” of the people than the federal legislature. The federal government would however earn the appreciation of the people by virtue of what Hamilton and Madison called “good administration.”44 A people whose liberties were secure, who enjoyed prosperity, and who could count on peace would appreciate their government even if they could not identify with it.

And yet, “good administration” may not be quite enough to forestall political discontent. Democratic citizens want more than results. They want to rule—to use the Constitution as a democratic instrument to achieve democratic purposes. What Madison’s partisanship—and still more, Van Buren’s and Jackson’s partisanship of the 1830s offered—was the hope of controlling the force of the national government. It offered to render the Constitution an instrument not of elite characters, but of the people. Without party and partisanship, the Constitution stands at a great distance from the people, or any group hoping to animate, inspire, and coalesce the people. With party and partisanship, the Constitution became at least an occasional instrument of popular purpose. It helped (p. 230) give force to those vectors in the popular imagination that commanded wide and enduring support. Party gave the Constitution what “good administration” never could: affection.45

It did this not by amending or distorting the Constitution, but by taking the Constitution up on its own implicit invitation. This invitation to use the Constitution as a means of facilitating and not merely impeding popular views, by constructing a durable and dispersed majority, was consistent with the constitutional form. Indeed, parties in the U.S. constitutional order have interpreted what it means to constitute the people in terms of the constitution, and not in spite of it. Parties accept that they need to construct a constitutional majority in order to rule. And this is the great aim they pursue.

VI.  Constitutional Law: Shaping Parties

The Constitution reflects and reinforces ambivalence about parties and partisanship. Parties are often despised entities that impede the pursuit of the “rights of individuals and the permanent aggregate interests of the community.” In many and perhaps most cases, the Constitution works to deter the formation of or incapacitate parliamentary parties that are unified, disciplined, faction-like—whether based on narrow interests or defined ideology. As a result, parties are generally able to form only narrow or transitory majorities. On the other hand, constitutional arrangements empower parties that are able to successfully construct a dispersed and enduring majority. It is only because of this invitation to parties that the Constitution can succeed on democratic terms; parties are essential to viewing the Constitution as an instrument of and not simply an impediment to democracy.

This fundamental and ineradicable ambivalence about parties is not something found in every constitutional order—indeed, most constitutions drafted in the twentieth century specify a less tortured and more consistent approach to parties and partisanship. The uneasy standing of parties has profound implications for the law of democracy in the United States. It means that parties should not be entrenched in the electoral system in a manner that undermines party competition or the fair pursuit of a constitutional majority. It means that Supreme Court decisions will likely be strained when it comes to ascertaining the degree of independence parties should have in forging their identity and standards for affiliation—a tension evident, as we note below, in jurisprudence about primary elections. And the Court’s ambivalence about the role and character of parties is entirely congruent with the ambivalence manifest in American popular opinion in the United States. The uneasy constitutional status of parties has, in turn, implications for the question whether any parties should, as a matter of their organization or what they stand for, be banned.

The constitutional status of parties is anchored in the First Amendment protection for freedom for speech and association, and for the latitude that groups, in particular political groups, need in order to manage their membership and political message. Yet this autonomy is limited by the view that parties are public entities significantly different from (p. 231) other voluntary associations and political groups with rights under the First Amendment. Because parties are an essential structural part of the democratic process, there are, the Court has argued, important public interests at stake regulating them.

The view of parties’ public purposes was enunciated in the White Primary cases beginning in the 1920s and 1930s.46 The Democratic Party effectively disenfranchised African Americans by preventing them from participating in its primary elections, and the Court ruled that in the one-party states of the South, where the primary nominee was in effect the winner, exclusion amounted to violation of the Fifteenth Amendment right to vote and the Fourteenth Amendment guarantee of equal protection on the basis of race. Because these cases turned on “state action,” and because they involved racial discrimination, they did not fully confront the status of parties and the larger question of party autonomy.

Later cases were not about the categorical exclusion of voters but about designing primary elections to serve a particular view of the best character of parties and best way of structuring electoral alternatives. Put simply, the tension was between the dominant and independent role of parties in shaping public issues, debate, and electoral choices on the one hand, and on the other the capacity and desirability of other institutions, including the Court, to shape parties. This tension is revealed in a set of cases about primary elections that in effect pitted two views of parties against one another—views familiar from our earlier discussion of parties and the Constitution.

The state’s broad power to prescribe the ‘Times, Places and Manner of holding Elections for Senators and Representatives’ (Art. I, §4, cl. 1) is undisputed. Moreover, the Court acknowledges the nomination process as “the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community.”47 The question at issue is the degree of autonomy parties have when it comes to the processes by which they select their issues and candidates for office. The predominance of primary elections over caucuses or selection by an executive committee of the party as a way of choosing the party’s nominee dates to the late 1960s. The form primaries take, however, is variable: some are closed to any voter who is not registered with the party; some are semi-closed because parties can permit unaffiliated voters to participate if they register with the party, often easily and on election day; some are open to any voter; in a “blanket” primary, any voter can vote for any party candidate for any office on a line-by-line basis. The significance of these various forms is that they give greater or lesser weight to like-minded partisan voters in comparison to all voters. The outcome of these cases was believed to have consequences for the character of parties—whether they would be narrow, dominated by activists or “purists,” ideologically unified, potential forces for political polarization on the one hand or whether they would be broad, inclusive, ideologically amorphous and aimed at constructing a dispersed and enduring majority on the other. The constitutional question was this: Does the right of the party as a political association to control its identity entail that the party has exclusive authority to decide on the process of selecting its issues and nominees, even in the face of a contrary decision by a state legislature?

(p. 232) In one line of decisions, the Court views parties as voluntary associations little different from other political groups. Protected as political groups are by the First Amendment, they are free to organize their internal affairs and to decide on standards for affiliation and participation. They can organize their own venues for selecting nominees, and can enter or decline to enter state-run primaries as they see fit. At this stage of elections, they cannot be forced to associate with candidates or voters who do not share their beliefs. Voters have no constitutional cause to object to a closed or semi-open primary—as California voters did in 1996 when they passed a ballot measure requiring blanket primaries that opened participation to all voters irrespective of party affiliation.

The move in California to institute a blanket primary was motivated in part to advance a particular view of parties in American democracy. It was designed to encourage participation by unaffiliated and independent voters and by those who did not normally vote at all, that is, it was designed to dilute the influence of “party hard-liners” and “extremists,” to expand candidate debate beyond the scope of partisan concerns, and to produce elected officials who are moderates, pragmatic, and of a “problem-solving” mindset. The intent was to push parties toward the middle—to facilitate a return to parties and candidates presumably more broadly representative of the electorate, that is, “centrist” parties.48 These officials, the argument goes, would be more likely to compromise in divided government, to enable bipartisanship.

At issue in this decision about the constitutionality of the California initiative, then, was not just the institutionalization of a particular view of parties but the fundamental question: Who should manage voters’ choices? Proposition 128 was supported by a majority of voters identified with the major parties and by independents. Left to themselves, the proponents argued, parties run by officials and activists did not present an acceptable set of alternatives. Put simply, should the party or the people decide on the institutional framework, and, therefore on what constitutes an adequate structure of choice and the range of alternatives voters would likely face in the general election?49

Though solicitous of independents, and distasteful of strong partisans and narrow, unified, “faction-like” parties, the Court nonetheless ruled that freedom of political association to select its nominee trumped the preferred modality of a two-party system comprising broad-based parties.50 Justice Scalia was particularly responsive to the major parties’ charge that the blanket primary was liable to take the selection of candidates out of the hands of partisans, to make the selection vulnerable not only to the preferences of unaffiliated voters but also to strategic voting by crossover voters with an interest in selecting the weakest candidate. The Jones decision suggests there was no compelling interest in favoring voters whose views are more “centrist” than those of the party base. Nor was there sufficient reason for the state or Court to intervene to structure primaries so as to settle (p. 233) political disagreements at the early stage, narrowing the range of candidates to those who are all more “centrist,” rather than sending more divergent candidates and party agendas into the general election.51

In Washington State Grange the Court got around its Jones ruling and cleared the way for nonpartisan primary elections, once again displaying distaste for distinct faction-like parties organized around partisans’ “creedal passions” regarding religion, cultural issues, policy causes, or some inflexible principle. The Court upheld Washington State’s nonpartisan primary system in which candidates must be identified on the primary ballot by their own self-designated party preference (or independence), voters may vote for any candidate, and the two top vote-getters for each office, regardless of party preference, advance to the general election. The process permits candidates to identify their party preference on the official election ballot regardless of whether they are endorsed by the party or are even a member. The Court reconciled this with Jones by pointing out that the parties’ associational right to decide on the nominee to represent them was not severely burdened by this process as parties could continue to select their nominees however they wished outside the state-run primary, in conventions or caucuses. The election simply winnowed the field. The parties’ principal objection to the “nonpartisan primary” was plain: it forced them to associate with candidates they did not endorse. Even if voters are not misled into believing that candidates on the general election ballot are the nominees of the parties they designate as their preference, voters will at least assume that the parties associate with and approve of them. This is compelled association, the argument goes, and violates the constitutional right of political association.

Justice Scalia in dissent judged the nonpartisan primary indistinguishable from the one invalidated in Jones and underscored just how a nonpartisan primary degrades the right of association: “a party’s defining act is the selection of a candidate and advocacy of that candidate’s election by conferring upon him the party’s endorsement. When the state-printed ballot for the general election causes a party to be associated with candidates who may not fully (if at all) represent its views, it undermines both these vital aspects of political association.”52 Scalia is insistent: “An individual’s endorsement of a party shapes the voter’s view of what the party stands for, no less than the party’s endorsement of an individual shapes the voter’s view of what the individual stands for. That is why party nominees are often asked (and regularly agree) to repudiate the support of persons regarded as racial extremists. On Washington’s ballot, such repudiation is impossible.”53 The Washington Grange decision highlights the persistent strain of anti-partyism in the United States, in particular the force of anti-partisanship in constitutional interpretation. “It is no mystery what is going on here. There is no state interest behind this law except the Washington Legislature’s dislike for bright-colors partisanship, and its desire to blunt the ability of political parties with noncentrist views to endorse and advocate their own candidates,” Justice Scalia observed.54

The character of parties and who should shape them is also at stake when it comes to barriers to the participation of minor parties and fusion candidates in elections.55 (Fusion (p. 234) allows minor parties to campaign effectively, allying on some matters with a major party by designating the major party nominee their nominee as well.) Framed in terms of avoiding voter confusion caused by the proliferation of parties and candidates, the decisions protect a two-party system comprising broad-based parties. Obstacles to the entry of minor parties, fusion candidates, or write-in candidates have the effect of narrowing competition and voter choice. They enable not only the self-perpetuation of the two major parties but the parties in their present configurations. In dissent in Timmons v. Twin Cities Area New Party, Justice Stevens charged outright that the prohibition of fusion candidates was intended to disadvantage minor parties, and had that effect.56

The decision entrenched the underlying normative view of democracy as competition between two established, broad, and inclusive parties against a profusion of “faction-like” parties. The value enunciated by the Court, in addition to protecting voters against confusion, is political stability. The state can regulate processes to inhibit splintering and “excessive factionalism,” a point made even by Justice Souter in dissent.57 Like the ideological parties targeted by proponents of blanket and “nonpartisan” primaries, the thought is that in elections and in office fusion candidates and minor parties are a force for factionalism: they accentuate differences, alienate voters, and immobilize government. The interest of electoral democracy in the United States is presumed to lie with broad parties capable of forging a “constitutional majority.”

The Timmons case reveals something more about determination to use election law and ballot access to shape the character of parties. Minor parties play an important part in identifying issues and marking divisions (consider issue-oriented parties such as the Grangers, Independents, Greenbackers, and Populists). The importance of minor parties for altering the major party’s orientation and agenda—often but not always in a progressive direction—changing its internal balance of power, and with it the parameters of policy and compromise in government, is well studied. Fusion would seem to conform well to the Madisonian value of pluralism, enabling coalitions across and eventually within parties. Justice Stevens in dissent in Timmons cites Alexander Bickel: “[A]s an outlet for frustration, often as a creative force and a sort of conscience, as an ideological governor to keep major parties from speeding off into an abyss of mindlessness, and even just as a technique for strengthening a group’s bargaining position for the future, the minor party would have to be invented if it did not come into existence regularly enough.”58 The Court assigns no value to the part electoral choices play in the dynamics of political change. Rather, fusion is cast as “exploitation” of the democratic process; “such maneuvering would undermine the ballot’s purpose by transforming it from a means of choosing candidates to a billboard for political advertising.”59 The party offers nothing of its own but a label, the Court assesses; it does not increase choices among candidates and—here is the anti-party point—elections are about choosing an individual to hold public office, not choosing a party to control office.60

The tension between parties as part of the public structure of democracy and parties as political associations of their supporters who control platforms and nominees plays out (p. 235) in the tension between parties seen as captured by partisan activists (who push it in the direction of some coherent, disciplined position on policies and principle), and parties that are inclusive and more likely not only to be “centrist” (or, what is not quite the same thing, to reflect the views of the “median voter” but also to be more compromising internally). Inclusive “catch-all” parties are thought to be more compromising with the opposition where there is divided government, to allow for constructive bipartisanship. At the same time these parties are also more likely to be able to garner the votes to control all the branches of government, to be at least temporarily a parliamentary-like party, and to claim to be aligned with the “permanent and aggregate interests of the community.”

Constitutional law has favored parties judged capable of creating “constitutional majorities.” The Court has, often grudgingly, afforded parties considerable autonomy in managing their internal organization and nominations as association freedom would dictate, but also upheld electoral processes that constrain parties, favoring primary forms and other institutional arrangements designed to give voters choices between broad programs over those that produce nominees and programs committed to the ideology and interests of a partisan “base.”

VII.  Unconstitutional Parties

An exceptional feature of parties in U.S. constitutional law—the treatment of parties judged to threaten some fundamental tenet of the democratic order—follows from their constitutional status as political associations. The so-called “paradox of democracy” can be put simply: prohibiting a party from competing in the electoral arena on the basis of its program and purpose potentially restricts the will of the current majority. It is no paradox at all, though, if we think that sustaining the conditions necessary for the exercise of popular will is threatened by the election of antidemocratic officials whose aim is to thwart the political organization of future majorities.

Here, comparative constitutionalism provides a useful perspective. European constitutions written after the Second World War as well as much-studied examples of the constitutions of India, Turkey, and Israel have explicitly assigned parties a privileged constitutional status distinct from other groups.61 At the same time, historical experience has put many democracies on guard against particular parties whose electoral success would undermine some element of the constitutional order deemed fundamental.62 These parties and purposes too are identified in constitutional texts. The range of antidemocratic parties in constitutions includes those that would outlaw rival parties or eliminate future elections; intolerant parties that would formally exclude citizens from participation or otherwise legalize religious, racial, or ethnic inequality; parties that are offshoots of armed (p. 236) paramilitary groups—terrorist or secessionist; parties that use electoral arenas to propagandize hatred and incite violence. A constitutionally entrenched defense against antidemocratic parties is sometimes called “militant democracy.”63 In many constitutional regimes prohibition extends to parties contending for popular support whose programs and purposes attack other fundamentals of national identity as it is enshrined in the Constitution—parties posing what might be called “existential” danger. Constitutionally explicit measures include prohibitions on the content of party platforms and speech such as the Turkish prohibition of parties that challenge the secular character of the state, parties that challenge the territorial integrity of the state and urge independence, parties that would alter the presumptive civic or ethnic identity of the nation (e.g., Israel as a Jewish state). Banning parties is one mechanism for protecting against parties threatening constitutional order; more common is refusing to allow these parties to enter electoral competition or prohibiting their nominees from holding office if elected, or censoring the content of electoral speech.

The United States too holds to Justice Jackson’s famous warning that the Constitution is not a “suicide pact.”64 But the American approach to antidemocratic parties is exceptional. It owes to the fact that parties are largely viewed as voluntary associations that do not have independent constitutional status but instead, as we have seen, fall within the First Amendment’s general guarantee of freedom of speech and assembly. In the complex hierarchy of constitutionally protected speech, political speech has primacy, and (with significant wartime exceptions) the content of advocacy, including antidemocratic speech and speech advocating the use of force or violation of the law, is protected. Thus the strict standard established by the Court for criminalizing speech—briefly, incitement of violence or criminal action now—is applied to political parties. The “clear and present danger” test first enunciated in opinions by Justices Holmes and Brandeis and later formulated in Brandenburg v. Ohio focused on the imminence and likelihood of harm, and became the standard for suppressing parties.65 Control of antidemocratic parties was not a matter of prohibition but of prosecution under criminal law, and party leaders and members were charged with incitement of criminal behavior.66

This framework was notoriously applied during the Cold War to the Communist Party. The Party was judged “not really a party at all” but rather a conspiratorial group (on the basis of its secrecy, centralization, and hierarchical organization) subject to the direction of a hostile foreign government and dedicated to subversion and overthrow of the American government. The Communist Control Act of 1954 denied the Party “any of the rights, privileges, and immunities” of legal bodies.67 The act was vague as to whether membership itself was cause for arrest or penalty, but the history of harassment and penalties applied to communists (and alleged communists) is well documented.68 The Court never ruled on the constitutionality of this statute.

(p. 237) In short, the First Amendment gives latitude to antidemocratic parties short of incitement. Note that in practice, this latitude also owes to the fact that the normative and structural forces for two-partyism in the United States marginalize parties that fall outside the centrist, comparatively truncated political spectrum (encouraging political rhetoric that wields the label “extremist” in a careless, often histrionic fashion).

VIII.  Conclusion

Everywhere the constitutional status of parties is closely tied to particular, local understandings of the foundational conditions and bounds of democratic politics: to what is judged fundamental to democracy. These standards will vary; they are a matter of national historical experience and political settlements. They are never settled finally, however, and the community of politically active citizens will have to recontest and reimagine them. On our view, the key consideration is whether parties are “constitutional parties.” Not in the sense that they do not advocate major changes, including constitutional change, but rather in the sense that they renounce violence and are committed to preserving electoral competition in the future. They accept rotation in office; they are willing to leave office when defeated. They reject measures that would permanently entrench their rule and put effective contestation beyond the bounds of normal electoral politics. They aim at forming a constitutional majority—temporarily. For parties accept that they are partial and cannot, certainly not permanently, claim to be the sole representatives of the “permanent aggregate interests of the community.”69

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Footnotes:

1  Mann, T and Ornstein, N, It’s Even Worse Than It Looks: How the American Constitutional System Collided with the New Politics of Extremism (2012) xiii, 39, 42, 81, 86, 100–102, 129, 163–165.

2  Desilver, D, ‘Congress Ends Least Productive Year in Recent History’ Pew Research Center, Fact Tank: News in the Numbers, 23 December 2013, available at http://www.pewresearch.org/fact-tank/2013/12/23/congress-ends-least-productive-year-in-recent-history/. Rraw productivity assessments can be misleading: see Mayhew, D, ‘The Least Productive Congress in History?’ Politico Magazine, 23 December 2013, available at http://www.politico.com/magazine/story/2013/12/least-productive-congress-in-history-101476.html#.Uy-WFKU1l90.

4  Elkins, Z, Ginsburg, T and Melton, J, The Endurance of National Constitutions (2009) 19.

5  Madison, J, ‘Federalist #10’ in Rossiter, C (ed), The Federalist Papers (1961) 82.

6  Paine, T, ‘Common Sense’ (1776), available at http://www.gutenberg.org/files/147/147-h/147-h.htm#origin.

7  ibid.

8  ibid.

9  1776 Pennsylvania constitution, sections 1-8, available at http://avalon.law.yale.edu/18th_century/pa08.asp.

10  ibid section 13.

11  Adams, J, ‘Thoughts on Government’ in Peek, G (ed), The Political Writings of John Adams (1954 repr. 2003) 84.

12  ibid 87–88.

13  Adams, J, ‘A Defense of the American Constitutions’ in Peek, G (ed), The Political Writings of John Adams (1954 repr 2003), 139–140; in the 1780 Massachusetts constitution, the property qualification for members of the House of Representatives was either a hundred-pound freehold or a three-hundred-pound estate, while the qualification in the Senate was a three-hundred-pound freehold or a six-hundred-pound estate; the qualification for governor was a freehold of one thousand pounds; see 1780 Massachusetts Constitution, Chapter 1, Section 2, Article 5, Chapter 1, Section 3, Article 4, and Chapter 2, Section 1, Article 2, available at http://www.nhinet.org/ccs/docs/ma-1780.htm.

14  Washington, G ‘Farewell Address’ (1796), available at http://avalon.law.yale.edu/18th_century/washing.asp.

15  Madison, J, ‘A Candid State of the Parties’ in Hunt, G (ed), The Writings of James Madison 1790–1902 (1906) Vol 6:106–119; Hofstadter, R, The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780–1840, The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780–1840 (1969) 82–86.

16  Ceaser, J, Presidential Selection: Theory and Development, Presidential Selection: Theory and Development (1979), 104–106.

17  ibid 123–149.

18  Milkus, S., Political Parties and Constitutional Government: Remaking American Democracy (1999), 42–71; Pestritto, R, Woodrow Wilson and the Roots of Modern Liberalism, Woodrow Wilson and the Roots of Modern Liberalism (2005) 124–128; Levinson, S, Our Undemocratic Constitution: Where the Constitution Goes Wrong and How the People Can Fix It (2006); Dahl, R, How Democratic Is the American Constitution?, How Democratic Is the American Constitution? (2 edn, 2003).

19  Pestritto, n 18 above 124–128; Levinson, n 18 above; Dahl, n 18 above.

20  Madison, n 5 above, 78.

21  Even John Adams, that champion of what we call “complex constitutionalism,” hewed to the mimetic ideal; as he wrote in “Thoughts on Government,” (1776) the representative assembly “should be in miniature, an exact portrait of the people at large.” See n 12 above, 87–88.

22  ibid 78.

23  ‘Representation: Debate in the House of Representatives,’ Chapter 13, Document 39, The Founders’ Constitution, Chapter 4, Document 5, Kurland, P. and Lerner, R (eds), (1986), available at http://press-pubs.uchicago.edu/founders/documents/v1ch4s5.html, http://press-pubs.uchicago.edu/founders/documents/v1ch13s39.html.

25  Hamilton, A, ‘Federalist #72’ in Rossiter, n 5 above, 437.

26  Hamilton, A, ‘Federalist # 71’ in Rossiter, n 5 above, 432.

27  Madison, J, ‘Federalist #51’ in Rossiter, n 5 above, 322.

28  Patten, J, ‘Robert C. Byrd’ in Dewhirst, R (ed), An Encyclopedia of the United States Congress (2007) 73–75.

29  Levinson, D and Pildes, R, ‘Separation of Parties, Not Powers’ (2005–2006) 119 Harvard Law Review 2313.

30  Wilson, W, Constitutional Government in the United States (1908) 198.

31  ibid 203.

32  ibid 206.

33  Levinson and Pildes, n 29 above, 2329.

34  ibid 2348.

35  ibid 2379.

36  ibid 2379.

37  ‘Toward a More Responsible Two-Party System: A Report of the Committee on Political Parties’ (1950) 44 American Political Science Review (Supplement) 1.

38  Brownstein, n 3 above, 58.

39  Levinson, n 18 above; Dahl, n 18 above.

40  Madison, n 5 above, 78.

41  Ceaser, n 16 above, 138–143.

42  Brutus, ‘Letter I,’ 18 October 1787, available at http://www.constitution.org/afp/brutus.txt; some historians claim that Brutus was the pen name of Robert Yates; others remain unconvinced; see Ball, T (ed), The Federalist with the Letters of Brutus (2003) 436n4, 436n5. Brutus wrote a series of essays from October 1787 to April 1788 opposing the proposed constitution.

43  Brutus, n 42 above.

44  Hamilton, ‘Federalist 27’ in Rossiter, n 5 above, 174–177; in the New York ratifying convention, arguing with Melancton Smith, 21 June 1788, available at http://www.constitution.org/rc/rat_ny.htm; Madison, ‘Federalist #46’ in Rossiter, n 5 above, 294–300.

45  Storing, H, ‘What the Anti-Federalists Were For’ in Storing, H (ed), The Complete Anti-Federalist (1981) 41–43; McWilliams, W, ‘The Anti-Federalists, Representation, and Party’ in Deneen, P and McWilliams, S (eds), Redeeming Democracy in America (2011) 80–86.

46  The final, landmark case is Smith v. Allwright, 321 U.S. 649 (1944).

47  California Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (quoting Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 216 (1986).

48  Note too that partisan primaries are likely to give greater voice to minority groups within the parties.

49  Hasen, R, ‘Do the Parties or the People Own the Electoral Process?’ (2001) 149 University of Pennsylvania Law Review 815.

50  California Democratic Party v. Jones, 530 U.S. 567 (2000). The presumptive effects on expanding participation and on the types of candidates that would be selected are empirically unproved. See Rosenblum, N, On the Side of the Angels: An Appreciation of Parties and Partisanship (2008); Persily, N, ‘The Blanket Primary in the Courts: The Precedent and Implication of California Democratic Party v. Jones’ in Cain, B and Gerber, E (eds), Voting at the Political Fault Line: California’s Experiment with the Blanket Primary (2002) 303–323.

51  Thompson, D, Just Elections (2002) 120.

52  Washington State Grange v. Washington Republican Party, 128 S. Ct. 1184 (2008).

53  Justice Scalia, dissenting, in Washington State Grange v. Washington Republican Party, 128 S. Ct. 1184 (2008).

54  ibid 1202.

55  Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997).

56  ibid 378.

57  ibid 364, Souter at 383–384.

58  Bickel, A, Reform and Continuity (1971) 80, cited at Timmons, n 55 above, 380.

59  Timmons, n 55 above, 365.

60  ibid 362–363.

61  See the chart by Elkins, Z, Ginsburg, T and Melton, J: http://comparativeconstitutionsproject.org (last visited March 2, 2014).

62  What counts as “fundamental” ranges from specific ideological parties that are judged enemies of democracy, or parties that are viciously sectarian. For a full discussion see Rosenblum, n 49 above, chapter 9; Issacharoff, S, ‘Fragile Democracies’ (2007) 120 Harvard Law Review 1405.

63  Loewenstein, K, ‘Militant Democracy and Fundamental Rights’ (1937) 31 American Political Science Review 417.

64  Terminiello v. Chicago 337 U.S. 1, 37 (1949) in dissent.

66  Dennis v. United States, 341 U.S. 494 (1951).

67  U.S. Statutes at Large, Public Law 637, chapter 886 (1955) 775–780.

68  Stone, G, n 65 above.

69  We have focused on parties in relation to the constitutional structure of the federal government, separation of legislative and executive powers, and key aspects of constitutional interpretation of the independence of parties. Left unexplored is the uneasy place of parties in the election of judges in light of the ideal of impartiality; partisan districting versus independent districting commissions; partisanship in the appointment and dismissal of a range of constitutional offices, including U.S. attorneys, directors, and administrators in regulatory agencies; and not least ambivalence about an avowedly partisan media.