Party as a 'Political Safeguard of Federalism': Martin Van Buren and the Constitutional Theory of Party Politics

Abstract

In the aftermath of the American presidential election of 2000, calls to amend the Constitution's electoral scheme were rampant. Attacks on this relic of eighteenth-century elitism, however, faded with remarkable, if predictable, speed. Although the electoral college may sometimes prove an excellent whipping boy, it has remained immune to sustained attack, at least in part because it is today a largely inconsequential institution. 1 Despite its presence formally at the center of the Constitution's electoral scheme and its supposed status as one of our "political safeguards of federalism," 2 the electoral dominance of political parties has meant that the electoral college simply does not have an effect on presidential election strong enough to provoke sustained hostility. And this irrelevance is traceable to an "amendment" to eliminate the electoral college that was, in a sense, ratified as long ago as 1836. There was no formal amendment that year, of course, but I want to suggest that the election of Martin Van Buren in that year constituted a functional, if not formal, amendment to the Constitution and one that goes well beyond even the vitiating of the electoral college. Most of us have not been taught to think of Van Buren's election as especially significant, let alone constitutionally transformative. But Van Buren's success in 1836 reflected a profound and permanent alteration of the American constitutional order, because he was elected not as the

Before the Countermajoritarian Difficulty: Regime Unity, Loyal Opposition, and Hostilities toward Judicial Authority in Early America

“…116 He was not an early supporter of Van Buren's idea of a permanent political party; he still clung to the notion of party as a harbinger of civic instability. 117 His depiction of supporters of nullification brings this underdeveloped sense of legitimate opposition to the fore. He renounced them as conspiratorial demagogues, as "unprincipled men who would rather rule in hell, that subordinate in heaven."…”

Law and Politics Reconsidered: A New Constitutional History of Dred Scott

“…Although he has plenty to say about doctrine, he is more concerned with situating the Court in the larger politics of the Constitution. This approach has been employed by a number of political scientists, historians, and legal scholars in recent years to show that an effective understanding of American constitutionalism must fully appreciate the courts' complicated interactions with political institutions of all kinds (Fisher and Devins 1992; Whittington 2007, 1999; Leonard 2002, 2001; Kramer 2004). These institutions might include branches and agencies of government, political parties, unions, business organizations, special interests of various kinds, as well as popular movements and the electorate as such.…”