The political battle for the constitution.

• Author: Perry, Jr., H.W.

1. INTRODUCTION

   Battles over the meaning of the Constitution began before the document was written, and they have continued through history at varying levels of intensity and salience. But an important change regarding constitutional battles has gone largely unnoticed. Understanding the new terms of engagement helps us better explain the current behavior of many political actors, including Justices. We also believe that it may have significant implications for the future.

   Over the past two generations, the Democratic Party and Republican Party have come to fundamentally different conceptions of the United States Constitution, and are visions that differ from the Constitution as interpreted by the Supreme Court. Previously, albeit only periodically, one political party has had serious disagreements with the Court, causing that party to articulate a separate constitutional vision. (1) What is new is that now both parties have done so. Without much recognition, we have reached a point where, in addition to the Constitution espoused by the Supreme Court, we have two quite different constitutions in waiting and in action, one attached to each political party. Furthermore, unlike previous one-party episodes, this time the phenomenon has not evaporated after a few years. Documenting and understanding this phenomenon fully requires serious attention to both law and politics.

   That the political parties have developed opposing visions of the Constitution which in turn differ from the Supreme Court's demonstrates that there can be useful constitutional interpretation distinct from that of the Court. (2) The debates of the first Congresses showed as much. (3) More importantly, the rise and persistence of these opposing visions has important implications for constitutional politics now and in the future. The fact that each party's vision is quite opposed to the other's throws light on the apocalyptic statements by each party over the past five of six presidential elections (4) concerning the inherent danger of any Supreme Court appointee coming from the other party. The exception was the election of 2004. Neither party's convention nor campaign reflected the constitutional differences we shall describe. The reason was articulated in early September by New York Times reporter Roger Cohen when he wrote that "this vote has a theme: the war." (5) Quite understandably, war (6) and national security trumped everything else. That said, it did not take long after the election for the appointment of judges to return front and center. Talk did turn to "nuclear options" but it was not about war. The issue of the appointment of judges was so contentious that Republicans threatened to use the "nuclear option" and prevent filibusters. Thus far, it has gone unused. In the end, the division helps explain the non-ideological nature of all of the post-Bork nominees except Thomas. (7) Absent profoundly differing constitutional visions, the current battles over circuit court nominations might appear merely as tit-for-tat for what Republicans did to Clinton nominees.

   Understanding the split not only helps to explain and predict behavior, but it also raises larger questions. (8) For example, the so-called countermajoritarian difficulty is sometimes dismissed by the claim that the majority position will soon prevail. (9) If, however, the Court develops its own vision of the Constitution that is different from either party, it raises interesting issues about democratic accountability. Perhaps, however, in a political world where the parties have become more polarized, the Court in forging a majority opinion is offering the bipartisanship that the public purportedly wants but is otherwise lacking in Washington. For many reasons then--historical, behavioral, and theoretical--attention to this phenomenon is important.

   Focusing on political parties is not something legal academics tend to do. (10) We know parties exist and differ on policy, and we understand them as electoral organizations, but we often ignore them as crucial institutions in governing. (11) When it comes to constitutional analysis, they fall off the radar screen. Legal academics are not alone. Supreme Court opinions that describe how our government works likewise ignore political parties. Justices opine about the balance of power between branches, or how the administrative state functions, with hardly a reference to the role of political parties. (12) Interbranch struggles and issues of separation of powers today are often not the same as those described in the Federalist Papers, when parties did not exist. (13) What usually matters most today is whether we have divided government, how divided it is, and how it is divided. Ignoring the role of political parties when analyzing a governing arrangement would be unthinkable to any serious modern student of government.

   Political scientists view political parties as central to governance. (14) The modern American state--indeed any modern democracy-cannot begin to be understood or explained without a deep understanding of the role played by political parties. Parties are the primary institutions that articulate, aggregate, and integrate interests in democratic polities. Moreover, understanding the positions of parties is the only way to understand the "output" of government. As Morris Fiorina has noted, "the only way collective responsibility has ever existed, and can exist, given our institutions, is through the agency of the political party; in American politics, responsibility requires cohesive parties." (15) Yet political scientists, like legal academics, have not noted the creation of a constitutional vision within each party. (16)

   We proceed by describing the evolution of the parties' constitutional positions and then compare them to the position of the Court. We cannot recount every jot, tittle, and perturbation, and we often skip over several years. What matters is that at the end of our story, the parties have strikingly differing constitutional visions that have persisted and seem likely to persist.

   Parties, of course, are complex institutions. Obviously not each member of each party subscribes to every point that we shall make. But the positions ascribed to each party faithfully track the dominant national presidential wing of each party. We have developed these party visions by systematically examining the presidential platforms of the parties and statements by party leaders in publications such as Congressional Quarterly and the Congressional Almanac. We have also supplemented this more systematic examination with statements and articles in other major press venues. While the presidential wings are generally more ideologically "extreme," they are not as different from the broader parties as they once were. Political scientists have demonstrated that both parties are becoming more cohesive, more partisan, more polarized, and moving toward the ideological extremes. This is certainly true of the parties in Congress, (17) but there is some debate about whether it is also true of partisan identifiers in the public. (18) We also believe that the positions that we ascribe to the parties will ring true to the reader.

   To set the stage for a discussion of political parties, the Constitution, and the Court, and to set the baseline for our story, we begin by retreading familiar ground. We recount two instances in which one party agreed with the Court and the other did not.

2. PRELUDE: SLAVERY AND THE DEPRESSION--ACKERMAN'S CONSTITUTIONAL MOMENTS

   The rise of the modern mass political party is generally seen as beginning with Andrew Jackson and the efforts of Martin Van Buren in seeking the formation of a national Democratic Party. Our story, however, can begin after the emergence of two national, competitive parties, the Whigs and the Democrats. Of course, the crucial issue driving the parties and the polity was slavery.

   Although the Constitution seemingly left slavery to the states, the Mexican War and territorial acquisition moved slavery to the top of the national agenda. The debate over slavery split both national parties on sectional lines, doomed the Whigs, and paved the way for an antislavery candidate to take the presidency in 1860 with just 40 percent of the popular vote and no southern support whatsoever. (19)

   With slavery in the territories ripping both parties apart, it is no wonder that politicians in the 1850s labored so hard to depoliticize the issue by framing it as one of "law" for the Supreme Court. (20) Unlike the Democrats and Whigs, who understood that slavery in the territories was too hot to handle, the Supreme Court accepted the invitation to "finally" settle the issue with Dred Scott. (21) Obviously, that didn't work. The Whigs were no longer viable, and the newly formed Republican Party believed that slavery was a blot on the nation that should be placed on its way to an eventual extinction. Given the very limited powers of the national government to deal with slavery, the only way that essential ending was likely to occur was by a policy of containment--the very solution that Dred Scott barred.

   The Republicans could not live in a world where Dred Scott was law because a constitutional amendment to ban slavery in the territories (or to give Congress that power) was a mathematical and political impossibility. (22) Halting the spread of slavery was a moral, not a partisan, position. That goal had created the party in the wake of the Whigs' demise, and it was the only common ground the purely northern Republicans shared. So they developed instead an alternative constitution, one in which Congress had the power to legislate on slavery in the territories.

   What to do about Dred Scott? The case held that one black man remained a slave, but the rest of the opinion was dicta and any Justice appointed by a Republican president would be sworn to repudiate that dicta. As Abraham Lincoln, hardly the most hawkish...