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Monday, May 21, 2012

Hyper-partisanship and the irony of the Tea Party

While hyper-partisanship did not originate with the Tea Party, that group has pushed the concept further and more explicitly than just about anyone else. Anyone who compromises or attempts to work across the aisle--as by not opposing every judicial nomination by an opposing-party President--is a political heretic to be targeted for defeat. This is most recently exemplified by the primary defeat of six-term Sen. Richard Lugar for not being "conservative enough," as well as by Indiana treasurer Richard Mourdock, who defeated Lugar in the primary and defined bipartisanship as "consist[ing] of Democrats coming to the Republican point of view." At the same time, Tea Party advocates insist they adhere to the purest form of constitutional originalism and what the framers designed, especially as to congressional and state power.

It is widely agreed that the framers designed a system that 1) would be above political parties and partisanship and 2) cannot function without compromise and parties meeting midway in some sense of republican statesmanship. Given that, is there an ironic incoherence to the Tea Party position?

Posted by Howard Wasserman on May 21, 2012 at 09:43 AM in Constitutional thoughts, Howard Wasserman | Permalink


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I'd question the premise offered by Howard that "[p]retty much every historian and legal scholar who has studied the issue" agrees that the framers of the Constitution believed that political leaders should rule above party. Certainly, there was a lot of Federalist rhetoric to this effect -- but a lot of Anti-Federalist rhetoric about the need for constant suspicion against corruption of government by financiers, "fundlords," financial elites of all kinds (i.e. Robert Morris); military "juntos"; "young enterprising men (i.e. Hamilton); and so forth. The paranoia of their rhetoric is remarkably similar to the paranoia of TPers today.

Moreover, the Jeffersonian Republicans quickly bought into this sort of polarizing rhetoric: By the Jay Treaty, I think that it is fair to say that rule-above-parties guff was in tatters, replaced by the idea that the virtuous ought to band together in a tight group of constitutionally honest men to fight the corruption of the "Court Party" that had subverted the Constitution.

The Jeffersonians played lip service to anti-party rhetoric, but, as Gerry Leonard has shown, this rhetoric is perfectly consistent with support for a tightly knit organization to protect the constitution against those who would corrupt it. The "Spirit of '98" was all about maintaining unity on matters of principle against the forces of corruption at the metropolitan center. Such rhetoric was hyper-polarizing and imposed uncompromising litmus tests in much the same that the TPers' rhetoric does today.

So I tend to think that the TPers are the rightful heirs of our Country Party ancestors -- Anti-Federalists, Jeffersonian Republicans, "Quid" Republican followers of John Randolph, "hard-money" Jacksonian supporters of the Bank Veto Message, and so forth. And this strain is just as much part of the original understanding as Federalist rhetoric of "diffuse, national characters" like Washington standing above party.

Posted by: Rick Hills | May 22, 2012 9:23:02 PM

Brando, It's a nice point, but it's not the point that we are discussing. I'm saying that if you want to accuse the Tea Partiers of being incoherent originalists -- the claim that I believe this post is about -- you need to consider which original reference point should apply. The fact that some tea partiers want to amend the constitution and create a new reference point doesn't seem to change that.

Posted by: Orin Kerr | May 22, 2012 5:13:09 PM


So you're arguing that a group calling itself the "Tea Party," has chosen the original reference point not to be the period of the original constitution, but rather 1913, the year the 17th Amendment was adopted, the same amendment that the Tea Party wants repealed?



Posted by: Brando Simeo Starkey | May 22, 2012 11:21:27 AM

edit: the 14A "changed" the system for the last paragraph

Posted by: Joe | May 22, 2012 10:42:13 AM

"Joe, I'm not sure I follow your comments. How does the 14th Amendment suggest that it is somehow wrong to talk about the 10th Amendment? No one suggests that the 14th Amendment repealed the 10th Amendment, at least as far as I know."

To be honest, I don't know how this follows from what I said.

I didn't say it is "somehow wrong to talk about the 10A." I said that if we are going to give such a broad reading of the 17A to defend the Tea Party, it might backfire on them, since the 14A also could be used to answer their 10A claims. A strong reading of the 14A justifying a lot of stuff many TP supporters argue violates the 10A.

The fact the 10A "changed" the system like the 17A does not mean the 10A was "repealed." I'll end there, since this is getting unproductive.

Posted by: Joe | May 22, 2012 10:41:25 AM

I'm still stuck on the point that Jeff made and which Howard called semantic. This statement seems wrong to me: "It is widely agreed that the framers designed a system that 1) would be above political parties and partisanship." I don't think it is widely agreed that the framers took themselves to be designing such a system at all. If the reference point for the statement is the Federalist, I don't see how the statement is correct. Partisanship and party affiliation (in the loose sense of affiliation with one's part or one's interest) was a fact of political life and a reality that no author of the Federalist took himself to be overcoming.

I do not understand Howard's reply that while factions are a fact of life, organized parties are not a fact of life. That does seem like a purely semantic point. Factions and political parties are manifestations of the same phenomenon, updated for changed circumstance. One of the original aspirations might have been to try to mitigate or, as Jeff said, channel the inevitably partisan quality of politics (I do not know if it is widely agreed that this was an aspiration, but it seems to me that it might be). But there was no optimistic presumption that the partisanship of politics could be designed out of it, or to achieve a society which was "above" such problems.

One can agree or disagree with the Tea Party politically, but I am uncertain why that disagreement is the basis for a claim of irony. Many people, of many political persuasions, look to the Federalist as a wise political document. It's no more ironic that all of their political views generally do not rise above partisanship and faction than it is that the Tea Party's generally don't.

Posted by: Marc DeGirolami | May 22, 2012 6:31:22 AM


Yes, I think you're missing something: Constitutional originalism does not reject partisanship if the original reference point is the early 20th century (when the 17th Amendment was enacted) rather than the late 18th Century (when the original unamended constitution was ratified).

Joe, I'm not sure I follow your comments. How does the 14th Amendment suggest that it is somehow wrong to talk about the 10th Amendment? No one suggests that the 14th Amendment repealed the 10th Amendment, at least as far as I know.

Posted by: Orin Kerr | May 22, 2012 1:54:04 AM

Finally, if the 17A changes things so much -- I doubt it does -- the originalist talk would be called into question since other amendments ALSO changed them. That wouldn't help them overly much.

For instance, there is a lot of 10A talk but later amendments changed the nature of the federal system if anything more than the 17A did (I think those who say it changed much overplay their hand, but clearly the 14A alone greatly changed the federalist system, no real doubt about it).

Tea Party groups probably would rather not go too far down that road.

Posted by: Joe | May 21, 2012 10:47:32 PM

Prof. Kerr ... that's a stretch.

The 17A was put in place to give the people a chance to directly elect senators. That's it. It is pretty debatable that it carried with it a replacement of the original understanding purported here of compromise.

And, it didn't change anything regarding the House of Representatives.

The last part misses the point too. The OP says the TP in part supports a certain constitutional vision. As I said, one can say that TP never claimed to be pure about that above and beyond anything else. But, if TP actually does claim to be for A, B and C ... it is notable if suddenly they violate B to get A or C.

Posted by: Joe | May 21, 2012 10:42:42 PM

Don't the TP folks think that both Houses and the presidency were in the wrong hands and that given the constraints of the election cycle all they could change in 2010 was the House -- which they did with the largest GOP membership in over half a century. If they think they have a good shot at the Senate and/or presidency later this year, they shouldn't compromise right now. I don't know what's "ironic" about that.

Posted by: John Steele | May 21, 2012 9:40:37 PM

Maybe I'm missing something, but Orin, your point does not make much sense to me. You state that "the people want gridlock." But Howard's argument is that "Tea Party advocates insist they adhere to the purest form of constitutional originalism" which rejects partisanship and prizes compromise. Your statement seems to prove Howard's point but then you're denying that it does. The point isn't weak, it seems. You just proved it.

Posted by: Brando Simeo Starkey | May 21, 2012 8:39:28 PM

Howard, Joe,

The post is premised on an alleged vision of the founders that politicians would be above partisanship and would be statesmen. It argues that the Tea Party vision is inconsistent with that vision, because, in Howard's view, the Tea Party vision is partisan and not statemanslike. But the 17th Amendment was enacted in an era in which partisanship was taken as a given, and it was designed to have Senators directly represent the people, and give them what they want. If the people want gridlock, then I would think the basic theory of the 17th Amendment is that the people should be given gridlock. I guess I'm not sure how it is ironic for Tea Partiers to favor gridlock over the enactment of policies they oppose, or of politicians who are aligned with the Tea Party to have the same preference. If it's an effort to play gotcha, it seems like a pretty weak point.

Posted by: Orin Kerr | May 21, 2012 5:52:49 PM

Orin: Like Joe, I'm not sure how the 17th Amendment plays in here. Direct election makes the Senate a bit more like the House because of manner of selection. But the need for compromise to make both chambers work is unchanged.

Posted by: Howard Wasserman | May 21, 2012 3:56:15 PM

Jeff: Fair semantic point. The counter-semantic point is the difference between factions (which Madison spoke about in Federalist No. 10) and parties, in the sense of the organized and now highly ideologically cohesive parties that developed. The former was a fact of life; the latter, especially where compromise is not an option, was not. And it is the evolution of the former into the latter that is the current problem.

Posted by: Howard Wasserman | May 21, 2012 3:54:15 PM

I don't understand why the 17A changes the basic point made in the OP.

Posted by: Joe | May 21, 2012 2:33:25 PM

Howard, doesn't your argument need to consider the 17th Amendment, providing for direct election of Senators? Tea Party originalism doesn't require ignoring validly-enacted constitutional amendments, and I would think the 17th Amendment alters that original design in potentially important ways.

Posted by: Orin Kerr | May 21, 2012 1:18:07 PM

Howard, I'm not a constitutional scholar, but I used to be an American history student. I thought the Federalists understood that factions were a fact of life, but hated them, and set up a system of checks and balances in which nobody would accomplish anything without compromise, hence encouraging the development of republican statesmanship.

That's not really to take away from your point about the Tea Party's views on compromise being beyond the traditional pale of pragmatic republicanism. Just that the system itself wasn't ABOVE factionalism; it was meant to incorporate and channel factionalism into workable government.

Posted by: Jeff Lipshaw | May 21, 2012 1:09:02 PM

Pretty much every historian and legal scholar who has studied the issue?

Posted by: Howard Wasserman | May 21, 2012 12:54:20 PM

The TP did not grow into being with the primary purpose of protecting "the purest form of constitutional originalism" and if pressed they would accept the point. That is, if debt is rising, in their eyes, they will accept "close as possible constitutional originalism" etc.

Posted by: Joe | May 21, 2012 12:08:40 PM

Among whom is it widely agreed that the elected politicans "would be above political parties and partisanship"?

Posted by: A LandHolder | May 21, 2012 11:03:55 AM

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