Political Parties and your Proposed National Primary Constitutional Amendment
Monday, January 19, 2004
by James Dayton
My only comment regarding Mr. Berg-Andersson's proposed amendment, as written, is this:
In the first sentence in section 1, he uses the phrase "by the several political parties". As has been pointed out in several articles I have read on your site, the Framers of the Constitution had never intended political parties to exist. Nowhere in the Constitution does the term "political parties" currently appear. I think this would necessitate that the Amendment define exactly what constitutes a political party, under the terms of this amendment.
I think it would be preferable, however, to avoid use of this term altogether. It makes me a bit uneasy to finally admit, in the Constitution itself, that political parties do in fact exist, and are here to stay. Notwithstanding your disclaimer that the likelihood of such an amendment ever becoming part of the Constitution is for all practical purposes zero, in my opinion the terminology referring to political parties ought to be revised.
Just my two cents worth.
Mr. Berg-Andersson responds:
No, not just two cents worth-- as Mr. Dayton has made a good point (and I am so gratified to see that the historical essays I have written for 'The Green Papers' are actually being so carefully perused! [;-)])
In my own defense (as well as in defense of the legal language I had chosen for my proposed amendment), I would- first- have to note that, while- yes- I don't believe there is even the iceberg's proverbial "chance in hell" of an amendment such as mine to ever be adopted as part of the U.S. Constitution, nevertheless I was trying my level best to craft a pragmatic amendment that actually could be adopted: one that might well address the problem at hand while still retaining its however outside a chance of adoption.
Yes, political parties, especially in the form we have them today, would not at all have been contemplated by the Framers (for reasons I myself have expressed elsewhere on this site, as Mr. Dayton himself has noted); yet they do, in fact, nonetheless exist today: furthermore, their existence is already well codified within the election laws of the several States. As a result, I don't think it is at all necessary to clutter up my proposed amendment's Section 1 with a legalese-based definition of just what is a political party anymore than the most recently adopted 27th Amendment (a product of the very era that produced the Constitution itself, despite its rather late ratification) needs to outright define "compensation for the services of the Senators and Representatives" (is such "compensation" merely an annual salary set by Federal statute or might it, perhaps, include something more than that?--- the 27th Amendment does not say). In my opinion, legal custom and the courts would, if necessary, come to sort things out (I myself would think that reference to what might be defined as a "political party" at the State level would have to be well taken into account in any legal proceeding related to my proposed amendment were it actually to become a part of the Constitution).
In addition, it is the Political parties which elect the vast majority of the Senators and Representatives who would be among the 2/3 of each house of Congress that would have to approve my proposed amendment before it even would get to be looked at by the States re: possible ratification by 3/4 of these. I would think it most difficult to get such an amendment through Congress in the first place without such an amendment actually, within its verbiage, recognizing the role political parties might continue to play in the presidential nominating process. Tack on the fact that state legislators- those who would have to be among those who ratify a constitutional amendment on behalf of their respective States- are also, in most cases, elected with the aid of political parties and one should easily see why I used the wording I did in my proposed amendment.
Political parties have long been part of the nominating process on the State level and, as I've already noted, this role is clearly recognized by State statute. If my proposed amendment were to ever be adopted and, if Congress were to- under its provisions- subsequently authorize a National Nominating Presidential Primary to be held on the same day throughout the Nation, I doubt very much you would end up with anything but each Party nominating its own presidential candidate via this hypothetical nationwide primary (I don't, for example, see any hope whatsoever [not that I see much hope for anything else!] for, say, a nationalized version of Louisiana's so-called "Open Primary" in which everyone runs for an office "all-up" without any required reference to the candidate's political party, with a runoff between the top two vote-getters if no one gets a majority of the Primary vote: though I might feel differently if such an "Open Primary" were more common, already used in a majority- if not a supermajority- of States, or if there seemed to be a strong sentiment within many other States to adopt such a nominating device as Louisiana already has for State and local nominations). Thus, I don't see how making reference to political parties in my amendment (while it might put the ol' KI-bosh on a non-Party national presidential nominating primary) is at all harmful to the basic issue at hand, that of constitutionally granting to Congress a power over presidential nominations that the State legislatures currently have over nominations for their Governors and/or other State elective officers, a power Congress- perhaps- should long ago have had but which the Framers- honestly believing that their Electoral College, despite its common name, was to be principally a presidential nominating device- never thought to grant it.
The fact is that political parties are with us in this country for at least the foreseeable duration: even those who openly challenge the two-party system in which two Major Parties predominate themselves, for the most part, willingly form what we all (recognizing that predominance) call "Third Parties". I just don't see how a constitutional amendment allowing Congress to have some regulatory role over the process of nominating candidates for the two highest offices in the Federal system could well ignore all of this and yet remain the least bit pragmatic!