Political entrenchment and public law.

• Author: Levinson, Daryl J.
• Position: II. From Formal to Functional Entrenchment C. Shaping the Political Community through Conclusion, with footnotes, p. 441-482

3. Shaping the Political Community

   Another well-documented entrenchment technique is for incumbent leaders to use the power of their offices to shape their own polities in such a way as to ensure their lasting support. Election law scholars have been attentive to this possibility in the context of districting, which presents politicians with the valuable opportunity to choose their voters. But here again, there are functional substitutes to gerrymandered districts. Substantive programs and policies can also be used to reshape politics in self-reinforcing ways by increasing the number of proponents relative to opponents. For example, municipal gun control or antismoking ordinances will predictably gain political support over time as gun owners and smokers either give up their firearms and cigarettes or exit the jurisdiction, either way resulting in a higher percentage of unarmed and nonsmoking supporters of the relevant policy and the officials who promulgated it. (157) Laws permitting more immigration or providing for the better treatment of immigrants will be similarly self-reinforcing, as a greater number of immigrants exercise more political power for the benefits of their successors. (158)

   Although some selection effects along these lines will be unintentional, strategic politicians have every incentive to manipulate policy for the purpose of shaping their electorates and entrenching their hold on power. A famous example is the "Curley Effect," described by Edward Glaeser and Andrei Shleifer. (159) James Michael Curley, who served four terms as the mayor of Boston during the first half of the twentieth century, was supported by a political base of lower-income Irish residents but opposed by Boston's wealthier Anglo-Saxon voters. To increase his own electoral prospects, Curley was interested in keeping poor Irish in the city and in encouraging the wealthy Anglo-Saxons to leave. With no formal immigration law at his disposal, Curley instead used his control over public projects, patronage, zoning laws, and the like to make things as hospitable as possible in Boston for his own voters and as uncomfortable as possible for his opponents. (160)

   Selecting a supportive constituency ensured these leaders' political survival and thus the continuation of their broader policy agendas. (161) In the remainder of this Section we consider two additional cases in which parties and politicians have quite clearly and self-consciously pursued entrenchment through the selection of a favorable electorate. The first example is the admission of new states in a federal system. Because each such admission threatens to shift the balance of overall federal power, those decisions are made with an eye to maintaining control by the currently dominant federal party. The second example is immigration policy, through which incumbents literally define their own polities.

   1. From Gerrymandering to State Admissions

      In a federal system, the admission of new states can shift the balance of national power in the direction favored by the representatives of the newly admitted state. Consequently, current legislative majorities can cement their hold on power by selectively admitting, or not admitting, new states. As we will show, this dynamic, just like gerrymandering, can be bipartisan or partisan. In the bipartisan form, legislatures lock in a policy status quo by designing state admissions policy in a way that maintains the current balance of partisan power. In the partisan form, a dominant party advances its own policy agenda and insulates that agenda against subsequent change by manipulating the admissions policy.

      The antebellum period provides a clear instance of bipartisan agreement on state admissions for the purpose of maintaining the policy status quo. In the antebellum era, the relevant policy was slavery, and disputes over state admissions were primarily proxy fights in the sectional battle over slavery. (162) During much of this period, there was an equal balance of power between Northern and Southern states in the Senate, which enabled either section to block policies they opposed. (163) But the balance of power meant that each state admission could shift political control of the Senate, and thus control over national policymaking, to one region or the other.

      With the Senate evenly divided, neither North nor South could dominate admissions politics, but each side could ensure the continuation of the status quo. The result was a series of political compromises in which slave and free states were admitted in pairs. Thus, at the time of the debate over the admission of Missouri as a slave state in 1819, there were eleven northern states and eleven southern states in the Union. (164) Missouri's admission, therefore, created the possibility that slave states would predominate over free ones. (165) To prevent this political shift and the policy consequences it would threaten, Northerners in Congress insisted that Maine enter the Union as a free state as a concession for their allowing Missouri to enter as a slave state. (166) The Missouri Compromise established a pattern that Congress would follow for some time, with slave and free states entering together, to preserve the Senate's sectional balance. (167) This so-called balance rule "protected Northerners against the dominance of national policymaking by the South, and it protected Southerners against the antislavery initiatives of the North." (168) In other words, it enabled Congress--in a bipartisan and bisectional manner--to lock in the national status quo on the slavery question.

      But sectional balance in the Senate did not survive. By the early 1860s, Republicans had control of Congress, and the party was then able to use state admissions policy to enact its national agenda and insulate that agenda against subsequent reversal by Democrats. The admission of Nevada in 1864 provides one early and stark example of this strategy. When the state was admitted in 1864, Nevada's population was approximately forty thousand, and its economy was undeveloped. (169) Thus, Nevada's admission was "the most egregious effort in the nation's history to disregard population and economic criteria in order to admit a state for political reasons." (170) Those political reasons were clear: Nevada may well have been admitted "to bolster Republican numbers in the Senate" and to "provide votes for the ratification of the Thirteenth Amendment [and] Lincoln's reelection in 1864." (171) The State did both. (172)

      Across the 1860s and 1870s, Republicans continued to admit Republican states to the Union, enabling the party to lock up control of the Senate and thereby enact--and entrench--its favored policies. (173) Summarizing the Republican Party's approach to state admission policies across the period, Charles Stewart and Barry Weingast write:

      Republican political hegemony in the 1860s allowed them a head start in the race to admit new states. During the secession crisis, congressional Republicans took advantage of the withdrawal of southern members to admit Kansas as a free, and Republican, state. Over the objections of the few remaining Democrats, Congress accepted the Unionist government in Wheeling as the legitimate government of Virginia, accepted its vote consenting to the partition of Virginia, and admitted West Virginia as a new state. While denying admission to the more populous (but Democratic) Utah, Congress voted to admit (Republican) Nevada when its population was only one fifth that of the next-smallest state and one seventh that of Utah. By the time the South fully returned to Congress ... one sixth of the Republican delegation in the Senate came from states admitted during the Civil War and Reconstruction, and three of these four states ... provided a nearly solid core of Republican voting strength in the Senate for the rest of the century. (174) More contemporary state admissions debates also reflect these entrenchment dynamics. When Alaska and Hawaii's admissions were being debated in 1953, Republican congressional majorities opposed statehood for Alaska because it was a historically Democratic territory; they supported Hawaii's admission because of that territory's more conservative political constituency. (175) Likewise, in the ongoing debate over statehood for the District of Columbia, Republicans oppose admission and Democrats support it because of the predictable partisan impact that D.C. statehood would have on the congressional balance of power. (176)

   2. From Suffrage Restrictions to Immigration

      Immigration policy is another obvious lever for expanding or restricting the scope of the political community. Unsurprisingly, it too has been used throughout American history as a mechanism of entrenchment. (177) In 1798, for example, Congress increased the number of years an immigrant had to be present in the United States before naturalization from five to fourteen and thus significantly delayed the enfranchisement of newly arrived American residents. (178) Although there were likely a range of motivations for these policies, Adam Cox and Eric Posner argue that this delay was orchestrated by the Federalist Party in part as a means of preventing immigrants from installing Jeffersonians in power. (179) Daniel Tichenor similarly describes it as "an effort by the Federalist party to forestall its imminent loss of political power." (180) When, in the elections of 1800, the Federalists did lose their hold on national political power, the Democratic-Republicans who took control of the federal government changed the residency requirement back to five years. (181) The political consequences of these shifts in immigration law were not lost on contemporary observers. Tichenor recounts how "Federalist newspapers like the Columbia Sentinel featured naturalization policy in an extended series exploring how Jeffersonians translated proimmigrant policies into foreign-born votes." (182)

      In the 1800s...