The Omittance of Political Parties from the Constitution

Almost forty years after James Madison publicly defended the United States Constitution for its ability to guard against factions,[1] he wrote that “the Constitution itself… must be an unfailing source of party distinctions” in a letter to Virginian historian Henry Lee.[2] In the intervening period, he had adequate opportunity to observe America under the Constitution and its flaws, having founded his own political party and served as President for eight years. Madison saw his closest and oldest colleagues rally against him, as he became a leader of one side of America’s first two-party system. Fierce debates between them manifested as early as the 1790s, driving a wedge through Washington’s cabinet. From the quote, we see that Madison came to see the Constitution as so feeble when dealing with political parties that instead of controlling them, it caused them to emerge. His change in stance over these four decades was certainly a response to what he had experienced in the center of American political and legal life. I argue what the reversal of position towards political factions from the “Father of the Constitution” highlights most clearly: the United States Constitution does not properly address partisanship nor does it protect against partisan interests interfering with the mechanics of government. 

Just like Madison, we can derive from historical evidence the idea that partisanship has constantly manifested in government since the Revolution, specifically in the federal legislature. While the framers attempted to stop the formation of a two-party system with doctrines such as the separation of powers,[3] they (including Madison himself) formed party organizations by 1800.[4] This started a trend of partisanship exhibited by even the current 116th Congress, where hundreds of bills sent by the Democratic-controlled House of Representatives are neglected by the Republican-controlled Senate.[5] For example, the Voting Rights Advancement Act of 2019 (also known as H.R. 4) was passed by the House of Representatives of the 116th Congress in December 2019, but has not been acted on by the Senate or any Senate committee as of November 11, 2020,[6] which is a week after the election of the 117th Congress. And so it is very likely that the bill will die at the end of this Congress. The most fundamental rules governing the houses of Congress come from the Constitution. But even the anti-partisan provisions that exist do not go far enough or are largely ineffective. For example, the separation of powers doctrine defends partisanship between branches of government. This is because, in theory, if one branch of government came to be temporarily submissive to a faction, it would not have sufficient powers to implement its dominance as each branch has its own, clear authority. However, as just seen in the example of Congress, this does not work within a branch. In fact, there is also a separation of some powers between the two legislative houses, but partisanship dominates. Even within one house, members assemble within their own blocks and cause gridlock.

One of the most tangible manifestations of partisanship in America is gerrymandering. Gerrymandering is when state legislatures redraw legislative districts in order to benefit their party in elections. The term comes from the name of founding father Elbridge Gerry, who carried out the first instance of this practice in a congressional district in Massachusetts in 1812.[7] Most recently, in 2018, North Carolina elected ten Republicans and three Democrats as its House delegation[8]– despite being a state which does not overwhelmingly favor one party.[9] In this election, the statewide vote was 50-48 in the Republicans’ favor.[10] The obvious reason for this discrepancy was partisan gerrymandering. The Fourteenth Amendment’s Equal Protection Clause ostensibly applies in cases like these, but federal courts have switched back and forth between allowing and prohibiting gerrymandering.[11] Since there is no clear constitutional standard on gerrymandering, there is no constitutional protection against it. Since gerrymandering is primarily driven by partisan interests, it comes as a result of partisan domination of government and so is an effect of weak legal protection against political parties.

The Constitution itself omits any mention of political parties. Though it is not as simple as the founders not having considered it, since Madison, George Washington, and Alexander Hamilton had all written about the subject at some point in their lives.[12] Specifically, they all had negative views on the matter, with Washington having used precious space in his Farewell Address to discuss the negative aspect of political parties, and Madison dedicating Federalist No. 10 to the issue.[13] In fact, the paper was written in part as a safeguard against political parties, since they were explicitly recognized as inevitable by Madison.[14] The irony is that the constitutional omission of political factions exacerbated the problem. While not mentioning something can serve as a barrier against it, in a legal environment, there is no room for chance; things as malicious as to be recognized as “enemies” of free states[15] are best explicitly prohibited by law.

There is no doubt that the Constitution has endured centuries of litigation. However, many of its flaws are seen throughout history. Partisanship is one of the rare examples of the omitted parts of the Constitution that was known to be an issue to the founders. Whether the omission of political parties from the document was a calculated maneuver, it nonetheless has allowed them to interfere with the processes of government and thus should be remedied by adding anti-partisan constitutional provisions.

References

[1] Madison, James. Federalist No. 10

[2] The Papers of James Madison, Retirement Series, vol. 3, 1 March 1823 – 24 February 1826, ed. David B. Mattern, J. C. A. Stagg, Mary Parke Johnson, and Katherine E. Harbury. Charlottesville: University of Virginia Press, 2016, pp. 338–339.

[3]  Foley, Edward B. "Due Process, Fair Play, and Excessive Partisanship: A New Principle for Judicial Review of Election Laws." The University of Chicago Law Review 84, no. 2 (Spring, 2017): 655-756. 

[4] Ibid.

[5] Greg Giroux and Madison Alder, “Both Parties Stuck Together on 2019's Biggest Votes in Congress,” Bloomberg Industry Group News (Bloomberg, January 17, 2020), https://news.bloombergtax.com/daily-tax-report/both-parties-stuck-together-on-2019s-biggest-votes-in-congress.

[6] U.S. Congress, House, Voting Rights Advancement Act of 2019, HR 4, 116th Congress, 1st sess., introduced in House February 26, 2019, https://www.govinfo.gov/content/pkg/CREC-2019-12-09/pdf/CREC-2019-12-09-house.pdf

[7] Li, Michael, and Annie Lo. “What Is Extreme Gerrymandering?” Brennan Center for Justice. Brennan Center, March 22, 2019. https://www.brennancenter.org/our-work/analysis-opinion/what-extreme-gerrymandering.

[8] Ibid.

[9] Ibid.

[10] U.S. House of Representatives. Statistics of the Congressional Election From Official Sources for the Election of November 6, 2018. Washington, February 28, 2019. https://history.house.gov/Institution/Election-Statistics/Election-Statistics/

[11] Ibid.

[12] Pruitt, Sarah. “The Founding Fathers Feared Political Factions Would Tear the Nation Apart.” History.com. A&E Television Networks, November 6, 2018. https://www.history.com/news/founding-fathers-political-parties-opinion.

[13] Ibid.

[14] See footnote 1.

[15] See footnote 8.