The Anti-Partisan Principle and Slavery
posted by Gerard Magliocca
Another set of examples that illustrates what I’m calling the anti-partisan principle (or norm) comes from the slavery era. While we think of partisanship in terms of party, in that era the fundamental division in society was between slave states and free states. The Constitution made some efforts to preserve a balance of power between those factions, most notably in the Fugitive Slave Clause, the Direct Tax Clause, which made it difficult for Congress to tax slaves, and the Importation Clause, which guaranteed the right to import slaves for a minimum of twenty years.
This structural design was extended in a series of measures adopted during the ante-bellum period. The Missouri Compromise of 1820 and the Compromise of 1850 each consisted of a series of laws that were enacted as a package to maintain the slavery/freedom balance. One component of these deals was that the number of free and slave states should be equal. That equilibrium lasted from the 1810s until 1850. When California was admitted in 1850, a further arrangement was made that one of its senators would support slavery and one would oppose it, which, if you think about it, was a pretty significant limit on state sovereignty.
The Civil War resulted from the breakdown of this fundamental principle that the slave and free factions must be balanced. Lincoln famously said that the Union could not remain half free and half slave. Dred Scott declared the Missouri Compromise unconstitutional. And Minnesota was admitted in 1858 as a free state while Kansas was not admitted as a slave state. The violation of the anti-partisan norm triggered the South’s secession. Consider the following question. Why did the South secede in 1860-61? They could block any constitutional amendment on slavery. Lincoln pledged in his First Inaugural that he would not touch slavery in the states where it already existed. These guarantees, though, were not good enough because he no longer would guarantee that slavery interests would be given equal weight within the Federal Government. So they left.
The difference between political partisanship and slavery is that the Framers were unfamiliar with the former but familiar with the latter. That is why you could find explicit efforts to balance the factions in one but not the other.
Tomorrow I’ll move on to another set of examples that postdate