An introduction to basic techniques of constitutional interpretation.
Joining the Party, Part 2
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America's Unwritten Constitution
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Joining the Party
In this module, Prof. Amar chronicles the adoption and evolution of the two party system in America. You'll learn which framers founded each party and how the creation of the parties caused great friction in government. The lectures go on to explain how the Constitution changed to accommodate the two party system and how these changes have made to the two party system inextricably codified into the Document.
Rencontrer les enseignants
Akhil Reed AmarSterling Professor of Law and Political Science
Yale Law School
[BLANK_AUDIO]
Welcome back.
We've been talking about the role of political parties in our
constitutional system, both in the, the reflection of the role of
parties in the written constitution, and the reality of parties in
the unwritten constitution of the reality and how the system actual operates.
Consider for example independent agencies.
I mentioned those, I've mentioned those in eariler lectures.
And one of the features of these independent agencies is that presidents
typically cannot fire officials at will, but only for a good cause.
Another typical feature of these independent agencies is
that they are headed up by a commission a
multi, aboard, a multi-member body, a hydra at
the top, rather one single person like the Secretary
of the Interior, or the Secretary of Defense, or the Secretary of Commerce.
The cabinet officers are removable at will by the
President and each cabinet department is headed by one person.
These independent agencies are headed up by commissions or boards,
and they're not removable at will, but only for cause.
Those are two basic distinctions between
so-called independent agencies and cabinet departments.
Here's a third.
By law, by statutes, statutes agreed to by basically both
parties for a very long period of time and, and,
and both, and all the branches of government many of
these independent agencies have formal,
official, legal rules about party affiliation.
And these agencies are supposed to be balanced along partisan lines.
For example, the Federal Election Commission
which regulates, federal elections has six members, and by law
no party may have more than three of those six members.
There are a bunch of other commissions that have five, or seven members,
and by statute no one party can have more than the barest of majorities.
Whether some of these independent
agencies, the United States Sentencing Commission,
the Federal Trade Commission, the Federal
Energy Regulatory Commission, the Equal Opportunity
Employment Commission, the Commodity Futures Trading
Commission, the Nuclear Regulatory Commission, and, and,
and, and on and on So, so when we look at independent agencies we see
the role of parties formally acknowledged in the basic statutory structure.
When we look at the organization of congress itself, we
see all sorts of very explicit rules about how many
staff members the majority party will have on each committee and the minority party.
And how the how many seats on each a
committee, the majority party's entitled to, and the minority party.
and, indeed the two-party system is built-in not just to these rules, but into
the informal folk ways of the place,
it's built into the very architecture of congress.
With people in one party sitting on one side of a proverbial aisle, and
people in the other party sitting in the on the other side of the aisle.
So sort of built into, the very structure, the architecture, of
congress.
Is basically a presupposition that they will be two parties, a
majority party and the minority party, and that presupposition, as I said,
is also built into all sorts of rules of, of procedure
for the committees and, and for voting rules, all sorts of stuff.
Now
and by the way, we see similar things in the
state, in, in state legislatures, and indeed the same two parties.
It's a two-party system basically in states as well as the federal government.
So, how did, how does that maintain itself?
because this seems a very stable, regular feature of the system.
The parties might morph, might evolve,
the democrat party used to be a southern
party now the republican parties become a southern party.
The parties kind of, you know switched places, the guy that sort of you know
looks most like Lincoln today, is Barack Obama
the democrat the tall skinny guy, from Illinois.
And a lot of the members of the so-called party of Lincoln today seem to
have, you know, affection for secession, and
the confederate flag and all of that stuff.
So the parties can
switch positions over time, they can morph, but
we've had still the same two parties in place.
Republicans and Democrats, ever since the 1850s, and that's,
an interesting feature of our system, a kind of
fixed feature of our system, an entrenched feature of
our system and the question is how that comes about.
and, and how it's maintained and and that there's we're talking a lot about law, and
we can, and we've been talking about formal statutes
and constitutions, and, but political scientists also talk about laws.
Economists talk about laws, which are merely
empirical regularities that are useful in making predictions.
The law of supply and demand.
Well that's not you know a law exactly like the Sherman
Antitrust Law or the Smoot Hawley Tariff or the Voting Rights Act.
It's,
it's an empirical regularity that when price goes up, you know
fewer people demand stuff in general and more people supply it.
And so the law supply and demand are,
are certain empirical regularities that we tend to observe.
Political scientists have observed political regularities.
One of the more important regularities
recognized by political scientist, is a law
called Duverger's laws. Named for a political science, scientist
Maurice Duverjay, and and it basically says it's a prediction about how
many parties in any given system we are likely to see in long-term equilibrium.
And the long-term can be quite long but, but one version
of Duverger's law says the following: That if you have n number
of seats simultaneously up for grabs, you can in long-term equilibrium probably
have no more than n plus 1 viable parties. It's a musical chairs game.
There's one less chair than there are number of
people sort of playing to, to sit in that chair.
So if you have three seats simultaneously up for grabs, you could
have four parties all vying for the three seats and, maybe two
parties that are going to get pretty, pretty clearly
going to get a seat and, and, that third seat
is going to be fought over by the, the,
the two lesser parties or something like that, so.
This means if you have one seat up for grabs,
in long-term equilibrium you're going to have two parties vying for it.
Each party, in effect, trying to capture that middle voter the, the,
the median voter, the person in the center of the political spectrum.
So when you have one governor up for grabs,
you're going to have two, gubernatorial parties in long term equilibrium.
If you have one senator who's voted on at any given point
in time, and we almost never have two senators simultaneously up for election.
We might in some special election if there's been a
death or resignation, but ordinarily the senate races are staggered.
So that in any given year, either no senator is up for election or only
one at a time.
because the other one is elected on a different schedule so one senator
at a time, one governor at a time, one president at a time.
And because of a statute passed in the 1840s, congressional districts are single
member districts, if Pennsylvania has you know 14 representatives
they actually have to have 14 separate districts.
They can't just have one election and elect all
14 of them at large, or something like that.
Single member districts have been required by a congressional statute since 1842.
And once that statute is in place, it basically helps stabilize a two-party
system because with only one house seat up for grabs, and within any district at any
time, you're going to have two parties in
long term equilibrium vying for that one seat.
That's Duverger's Law.
And we have the same two parties across the country, because of
certain electoral economies of scale, a ticket system in which you basically,
you vote for a slate, and you vote for governor, and president,
and senator, and representative, and state lawmaker all at the same time.
Many states have single-member
districts, not all of them do, but many states
have single-member districts for their state legislatures as well.
And here's what Duverger's law basically suggests.
That once you have, at least once you have a two-party
system in place, it's going to be pretty stable and, and self
enforcing, here's the basic logic.
You've got one office up for grabs, and if you don't vote for
one of the two major parties, your vote is probably a wasted vote.
In the past the only people who've wanted to come from those two parties.
So its unlikely that any new comer is
going to the threshold is set very high and
two people running, you basically need a majority or a
least a plurality to win, thats a very high threshold.
If some third party comes in they're going to
have to beat the other two established parties at
the beginning from the get go, that's a hard
thing to do, and here's the kick, the kicker.
Even if you prefer that newcomer, if you vote for that newcomer, you
may be increasing the odds that the, of the two major political parties,
the person who you like least will win.
So, for example let's use the cast of characters from the 2000 election.
You like Ralph Nader, because you're ultra-liberal, you like
him better than Gore, and you really don't like Bush.
Well if you vote for your first choice, Ralph Nader,
you may be increasing the chances that actually, you know, Bush
will beat Gore, because you could have voted for Gore
and helped Gore, but instead you, in effect, wasted your vote.
You voted for someone who wasn't going to win at all, and that increases the
odds that Bush is going to win, and
he's your least favorite, or you're a conservative.
You actually like Pat Buchanan best.
Bush second, Gore least of all, but if you vote for Pat Buchanan, you're
increasing the likelihood that Gore is going to
beat your guy, your your second choice, Bush.
Bush isn't your first choice Buchanan is, but a vote for Buchanan helps Gore,
it's a wasted vote.
And even if you don't think that way, many
other voters might think that way, and if you
are not aware that they're going to, think that
way, again, you're at risk of, of wasting your vote.
so, in long term equilibrium, once there two parties in place, in a single
member district system, which we've had in
place since the 1840s it's self stabilizing.
The parties in place are unlikely to change
that single member district rule, and with that
single member district rule in place, plus the
constitutional reality that we have one president, and
one senator up for grabs any particular time.
And the state constitutional reality that we have
one governor up for grabs at any one time.
We basically have the political science conditions
that exist for basically an entrenched two-party system.
The two parties are the ones who are controlling
the how they, they have a duopoly over the system.
In the House, in the Senate, they are the two major presidential parties.
They also are the two parties in operation in
every state, for the governorship, and for state legislature,
for the state house, for the state senate, and
once that duopoly has kind of emerged, it's going to
take, and been solidified simply by a statute, single
member district, it's going to be hard to dislodge it.
So I'm not saying that it would be unconstitutional to change this system.
We could have a multi-party system in the House and the Senate.
I'm simply saying, it's not this unconstitutional and
some literal textual sense it's simply unlikely to happen.
Because a single member district system is constitutionally permissible.
It's one option, it, it, it's within the, the
range of things that Congress is allowed to, to choose.
Congress has power to determine the
time, place, and manner of congressional elections.
They've done so in a way that basically
entrenches a two-party system, and that two-party system
is unlikely to basically collapse unless you have
some massive external event that shakes everything up.
The equivalent of the
kind of massive asteroid that hits the earth and wipes out the dinosaurs.
And so, that, that's what Duverger's law predicts, and at least in America the
prediction seems quite robust So we
come now to the end of, of this lecture, the basic thought is that
that the party system is pretty much interwoven,
tightly interwoven with the Turisk text. It's, it's, it's a basic
feature of our constitutional system and I always
end with a discussion of, of, of the illustration.
This is an artist depiction of
the drafting of The Declaration of Independence.
And what we see are people working together, people of different but
Thomas Jefferson is at one side of the table, and
John Adams is at the other side of the table.
Because of course we don't know how they sat in, in that room.
The artist is taking perhaps a little liberty, sort of reminding you
that these two people who were very close allies in the American Revolution.
They were in the same party at that time so to speak, the Patriot
party against the Loyalists, the Tories, those who are partisans of George the III.
They're in the same party at the beginning
the American Revolution is launched by the Patriots but
eventually, there's going to be a split, because, This one
party system that, that emerges early on, the, the,
the Loyalists and the Tories are basically repudiated,
so it's only the Patriots that are in charge,
led by George Washington, who's not in here in
the picture, he's off fighting in, in, in Massachusetts.
But the
Patriots led by George Washington and Ben Franklin right here who's kind of in
the middle trying to, sort of maintain the peace and, and Jefferson and Adams.
This one-party system that emerges after the revolution is going to break into two.
Two natural parties one a southern party, one a northern party
competing for middle America Ohio today back
in those days, New York was the swing state.
And and so this picture is reminding us that we're all Americans.
When he becomes president, he says we are all Republicans, we are all Federalists.
They're working together, but they do have
different perspectives, ours is a two-party system.
We're all Americans, but we're also typically Republicans and
Democrats, respectively.
As Ben Franklin reminds us, Independence are important too.
Okay still more to do so stay tuned.
[MUSIC]
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