Reflections upon the Law of Political Parties

Abstract

No one writes reflections any more. A bygone era treasured the essayist, the feuilletonist who held some aspect of life or law under scrutiny, discoursed lovingly for a few moments and then departed, making no point, driving home no argument and attempting no more than a brief illumination of his subject. Such writings are passe. And certainly they have scant place in a sober legal journal, which perforce derives a substantial part of its support from busy lawyers in search of bread-and-butter material. Yet, in the matter of the law's impact on political parties there may be some occasion for a discussion of that sort. The legal profession, more than any other, has made American politics its own. Without benefit of statistics, it is probably true that during most of our national existence the majority of elective public offices in federal and state government have been held by lawyers. Too, lawyers have played a major role as party leaders and party workers. They were in the forefront of yesterday's local and state conventions, and they are prominent in today's central committees and party councils. Thus, it may not be amiss to consider some of the legal incidents of party existence and function, with the idea of developing concepts rather than specific rules of behavior. Political one court has observed, are neither mentioned, protected, nor favored in the Constitution.' The prescience of the Founding Fathers fell short of recognizing the powerful role parties were to play in the new republic. For almost a century American constitutional and statutory law ignored the parties. What the law ignored it did not regulate. The first American parties, Federalist and Republican, were hardly more than labels describing those who clustered around the opposing philosophies of Hamilton and Jefferson. They exercised none of the functions of party organization, fixed no membership criteria, nominated no candidates, erected no platforms. Candidates were nominated by caucuses, that is to say, by informal groups of influential gentlemen meeting in secret session. Samuel Adams' amusing description of the caucus antedates the Revolution. Yet it applies with equal vigor to the political forces which held sway in the early days of the republic:2