Marquette Law Review Volume 102 Article 4 Issue 2 Winter 2018

Political Parties and Constitutional Fidelity

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Repository Citation Political Parties and Constitutional Fidelity, 102 Marq. L. Rev. 387 (2018). Available at: https://scholarship.law.marquette.edu/mulr/vol102/iss2/4

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OT CONSTITUTIONAL FIDELITY N O 11 (D This paper seeks to demonstrate four primary points: first, I will identify In the aftermath of the 2016 presidential election, fewer themes have M K OCUMENT C Y Fellow, James O. and Alfred T. Goodwin Senior Fellow, University of Oregon School of Law. Nunez, Carolina Law, Gash, Anna Alison Francis, Forbath, Megan Willy Bybee, Keith to Thanks Karen Orren, Stephen Skowronek,Dan Tichenor, Rob Tsai,and Priscilla Yamin for helpful draft. prior a on comments *Associate Dean for Programs and and Programs for Dean *Associate D views views on certain individual may narratives party how on clarity some rights offer to hope I Ultimately, judiciary. and on address will I the Finally, presidency. Trump proper the of context present the role from evolve of the federal with with a very extensive literature in constitutional Constitution. the to commitment and popular fidelity law focused on themes of some core themes of Jacksonian especially with respect to Democratic their views on the and economy and the composition of Whig party American ideology— society. Second, I will illustrate how those themes have remained prominent facets of modern-day Democratic and Republican party ideologies will I discussion, prior this upon building Third, 1990s. early the least at since provide a more mapping systematic of Jacksonian Era concepts onto present- present- how on speculation some offer also will I VI. Part in politics party day contentious most the of some with intersect and evolve may ideologies party day constitutional polarization. polarization. However, given the recent contemporary focus on American tension and society, conflict appropriate in the moment to American present the investigate stabilize and bind to those direction opposite the also fundamental in worked successfully structures that seems have an polity. especially The goal of this paper is centrality precisely this of task, and one to emphasize particular the function: structure the that political parties. has Parties played are political often such polarization. invoked in a However, discussions I stabilizing of focus on the significant parties role in articulating of narratives of political affiliation that effectively bind disparate social groups together into cohesive political connect coalitions, I so, and doing In that system. encourage constitutional overarching the to fidelity popular recent scholarship on the role of political parties in our system constitutional received received more from attention scholars and than commentators public political 40986 mqt_102-2 Sheet No. 44 Side A 01/29/2019 13:38:24 01/29/2019 A Side 44 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 44 Side B 01/29/2019 13:38:24 M K C Y FFILIATION FFILIATION ONSTITUTIONAL ONSTITUTIONAL A ...... 396 ...... C RA E ARTY ARTY ...... 416 ...... P As Cover stated in the [102:387 [102:387 1 L.J. 1601, 1601 (1986). DEOLOGY ...... 435 ...... ALE ALE TATEMENTS ON I ACKSONIAN ACKSONIAN S J ...... 403 ...... , Robert Cover memorably noted that , 95 Y 95 , ARTY ARTY ONSTITUTION IN ARTY ARTY P C P NTRODUCTION I I. DEOLOGIES LTERNATIVES I A MARQUETTE LAW REVIEW LAW MARQUETTE THE AND , ARTY ARTY OME DEOLOGIES IN THE DEOLOGIES IN THE ATTERNS IN ATTERNS I P Violence and the Word the and Violence P ) ) 1/17/2019 8:28 PM :S ONTEMPORARY ...... 445 ...... 388 ...... C Violence Violence and the Word OCIETY ELETE ...... 427 ...... D ARTY ARTY ,S P OT N O ARRATIVES IDELITY articulates articulates her understanding of somebody loses his freedom, his a property, his children, even text, for justifications also and law constitute in his life. Interpretations as occur. to about is which a or occurred already has which result, violence When interpreters have finished their work, they frequently Legal Legal interpretation takes place in and a signal field acts interpretive of Legal pain senses. several and in true death. is This occasion the imposition of violence upon others: A judge 11 (D D. Libertarian View ...... 439 ...... View D. Libertarian 440 ...... Narratives Party and Fidelity E. Constitutional A. The Contemporary Democratic Party ...... 403 ...... Party Democratic Contemporary A. The 409 ...... Party Republican Contemporary B. The 414 ...... Republicans and Democrats C. Insurgent 436 ...... A. Populism 437 ...... View B. Jacksonian 438 ...... View C. Whig F N ONCLUSION ONTEMPORARY CONOMY ATTERNS IN ATTERNS ONTEMPORARY ONTEMPORARY OLITICAL OLITICAL 1. Cover, M. Robert In In his article NTRODUCTION I OCUMENT the the law is intertwined with violence and conflict. VII. C III. C IV. P V. C VI. E 388 388 narratives of party affiliation Specifically, I will articulate and defend the use of from a certain type of narrative a more of work the and theory legal contemporary in fidelity—rooted of constitutional normative-legal perspective. Jack Balkin, but oriented more empathically toward party politics—that may II. P D opening sentences of the article: article: the of sentences opening have broad appeal in contemporary American namely, politics: a narrative of redemption. I. 40986 mqt_102-2 Sheet No. 44 Side B 01/29/2019 13:38:24 01/29/2019 B Side 44 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 45 Side A 01/29/2019 13:38:24 . ARV , 97 H 97 , Legitimacy acquiescence acquiescence 3 389 389 items items that are Fallon, Jr., Jr., Fallon, and Narrative Nomos one might be impressed by the 2 Foreword: Relatedly, on the differing levels of what he 96 (2005). .1787,1795 Robert M. Cover, Cover, M. Robert EV ee alsoee .L.R s ARV ) ) 1/17/2019 8:28 PM H ELETE Risk aversion and fear of the unknown: as unsatisfying unsatisfying as unknown: the of fear and aversion Risk as current conditions might be for some subset of the polity at any given unknown might moment be perceived as in much, much worse. time, Thus fear the calculus of of choosing to the either assent reject to the existing constitutional system might or be less about merely weighing positive and negative policy outcomes, and more about negative policy outcomes weighing against a backdrop positive fear of and very uncertain, alternative governing arrangements. Not surprisingly, anyone with even a decent sense of , 118 , D OT N POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O (footnote omitted); (footnote leave behind victims whose lives have been torn apart by these these by apart torn been have lives whose victims behind leave of violence. practices social organized, 11 (D .4,40(1983). .4,40(1983). .Id. .Id. 3. 2 In the face of such pervasive disagreements and conflict EV M K OCUMENT C Y 2018] 2018] D L. R following text, to the following of to forms system strongest mere commitment the constitutional to the constitutional system and everything in between. Constitution the and however, however, some elements that likely contribute to the maintenance of popular the following: include might system the constitutional to fidelity loved loved ones directly affected in the present or future; or may care deeply about principles. held of closely level the at disputes legal these guaranteed to be a perpetual feature of our legal system and democracy given the size and ofdiversity the American polity relative stability of exploited even our or disenchanted, or disappointed constitutional be to expected be can system. everyone In a context where nearly political outcomes, one might wonder, What accounts for continued popular system? constitutional American and the the Constitution to fidelity longer This is a treatments question where comprehensive answers would than elude even much what I could provide here. To briefly speculate, policy public of questions broader to extends adjudication of focus the when The controversial and coercive nature of the law is especially magnified and immigration and relations, economy of economic the in whether the realm of scope the contexts where or other rights, abortion religion, race, citizenship, the dispute and legal judgment might extend to millions of American citizens and Those ownhave their residents. and interests who are rights may affected directly at stake in the dispute; or may be affected in the future; or may have 40986 mqt_102-2 Sheet No. 45 Side A 01/29/2019 13:38:24 01/29/2019 A Side 45 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 45 Side B 01/29/2019 13:38:24 82 M K HE , 65 T C Y .877, E EV ,W Aziz Rana, 6 .L.R HI and C 5 .335,340,378 CKERMAN EV A , 63 U. .L.R Learning from Lincoln RUCE RUCE ALIF [102:387 [102:387 88, 90 (2003). note 3,at 1792 (making thispoint in the , 103 C (1991); 2 B either either through legislative supra supra HEORY EOPLE EOPLE T P Fallon, Fallon, E E THE ,W EMOCRATIC see also see D 98 (2017). Threats to Democratic Stability: Comparing the Elections of 2016 MARQUETTE LAW REVIEW LAW MARQUETTE The possibility of reversible policy shifts, Common Law Constitutional Interpretation CKERMAN 7 In a similar vein, perhaps the mechanisms of 4 8 A TATE OF OF TATE S 32 (1996) (discussing common law constitutional interpretation as a ) ) 1/17/2019 8:28 PM .291,296 HE RUCE RUCE EV ,T ELETE Stuart Chinn, Continuing hope for future change: Ian Shapiro offers change: offers future Shapiro hope Continuing Ian for the insight from the democratic theory literature that can competition electoral vigorous of maintenance the be crucial in aiding system. the stability of a democratic Evolution and updating of the law: the evolution of the the of evolution the law: the of updating and Evolution law, both through common law mechanisms with the policy of preferences a substantial portion of the polity to render it worthy of individuals fidelity over to time. enough The claim here historical is matter, that, the as constitutional a system has been time. over preferences to popular enough responsive may make the constitutional system align, just enough, enough, just align, system constitutional the make may through through dramatic exercises of popular sovereignty, risk risk aversion might find themselves putting up with a status quo that encompassed undesirable policy an outcomes. expansive This, after set toward inclination the in discern all, might one preference of is the constitutional original the in found stability and inertia design. democratic system even after suffering major electoral electoral major suffering after even system democratic losses. where losers holdmay out hope of the gaining upper- hand in some future electoral competition, strong offers a incentive for them to stay invested in the reform reform in American politics and law have generally remained open enough D .1781,1784 (1997); (1997); .1781,1784 OT .L.R ,1 B ,1 N D EV O HAPIRO S see also David A. Strauss, Strauss, A. David ; L. R 11 (D AN , 77 M , (1998). (1998). .See .Id. .See, e.g. .See, 5 7. I 4. 6 8 OCUMENT EOPLE EOPLE ORDHAM context context of discussing minimal theories of moral regarding legitimacy the Constitution); and 1860 and fears and concerns). concerns). fears and military elites in the early twentieth century that was fundamentally intertwined with national security P 390 390 D (2015) (discussing a campaign to encourage constitutional veneration put forth by corporate, legal, and and legal, corporate, by forth put veneration constitutional encourage to campaign (2015) a (discussing 879, 885, 888, 898, 929 descriptive phenomenon). what we wo F Constitutionalism and the Foundations of the Security State 40986 mqt_102-2 Sheet No. 45 Side B 01/29/2019 13:38:24 01/29/2019 B Side 45 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 46 Side A 01/29/2019 13:38:24 . , . 12 19 3 EV EV NJUST NJUST U Daryl J. .L.R .L.R ; ARSHALL HANGE HANGE A C ASH ,M - 391 391 .2311,2315 .W , 87 V EV AITH IN AN IN AITH EO And F OLITICAL OLITICAL 11 10 P EFFERSON .L.R , 66 G :J ARV The Legal Status of Political .775,779(2000)(setting forth forth .775,779(2000)(setting OLITICAL OLITICAL IMITSOF EV :P L ATHERS F , 119 H HE .L.R :T After all, Article V in 9 OLUM EDEMPTION OUNDING EFORM R F R , 100, C 5, 21 managerial, libertarian, progressive, political markets, Textualism and the Dead Hand Understanding the Constitutional Revolution ONSTITUTIONAL AILURE OF THE ECALIBRATING F The Congress, whenever two thirds of both houses shall shall houses both of thirds two whenever Congress, The :C ,R EMOCRACY EMOCRACY at 1066 at D to allow disappointed constituencies to hold HE Separation of Parties, Not Powers ,T HINN ALKIN C ) ) 1/17/2019 8:28 PM M. B with each paradigm offering a distinct view on the primary purpose served by see also id.also see ELETE prominent prominent historical events such as Reconstruction, the New Deal, and the Rights Civil Era concrete offer changes transformative for potential the of illustrations framework. constitutional existing the within reform reform or through the appointment judges of new federal out hope for future changes. the Constitution seemingly invites the possibility of future changes to the constitutional text. TUART D CKERMAN RESIDENTIAL ACK ,S ONST A P OT , J , N POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O 66 (2001); RUCE RUCE ISEOF 11 (D R 10 (2011); Frank H. Easterbrook, . U.S. C .See, e.g. .See, .See, e.g. .See, 11 9 10 12. B A number of legal scholars have drawn attention to some of the unique and and unique the of some to attention drawn have scholars legal of number A M K ORLD ORLD (2014) (discussing transformative policy changes during each of these historical eras). OCUMENT C Y of powers dynamics in practice); Nathaniel Persily & Bruce Parties:Reassessment A ofCompetingE. Paradigms Cain, AND THEAND other key structure of the American constitutional system that I also believe has has believe also I that system constitutional American the of structure key other played a supporting role in facilitating popular parties. political fidelity to that system: the very crucial functions that political parties play in the constitutional system. Aside from these explanations, however, I want to draw attention to one 4 (2006) (noting the fundamental place of political parties for any accurate understanding of separation separation of understanding (2006) accurate any for parties political place of fundamental the (noting convention convention amendments,for proposing which,either in case, shall be valid to all intents and purposes, as part of this Constitution, when ratified legislatures the by of fourths ofthree the several states, conventions orin by three fourths thereof, as the one or the other ratification of mode bethe proposedmay by Congress; provided that no amendment which may be made prior to yearthe thousandone eight hundred and clauseseight shall first and in affect fourth any in the the of section ninth manner the article;first and that no state, without its consent, shall be deprived its equal of W it necessary,deem shall propose amendments to this Constitution, or, the on applicationlegislatures the of thirds the of two several of states, shall call a 2018] 2018] D 1045, 1064 1119, 1122 (1998). Jack Jack M. Balkin & Sanford Levinson, context of the Jeffersonia the of context six six legal paradigms for political critical and parties pluralist, Levinson & RichardPildes, H. 40986 mqt_102-2 Sheet No. 46 Side A 01/29/2019 13:38:24 01/29/2019 A Side 46 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 46 Side B 01/29/2019 13:38:24 , M K See C Y MERICA relative relative ARTIES IN A This is 811 (2001) P ARTIES ARTIES AND 16 P Id. at 793 Thus parties parties Thus 15 OLITICAL OLITICAL P about their their about DEOLOGIES IN I see also id. ARTY ARTY PPRECIATION OF Toward a Functional Defense of [102:387 [102:387 A ,P N I would tentatively suggest suggest tentatively would I 17 :A ERRING 54 (2001); G RANSFORMATION OF T NGELS A OHN OHN J .750,753 .571,571(2012)(focusing less on legislator goals and and goals legislator on less .571,571(2012)(focusing EV RIGIN AND OL see also O P ve alsove sought tomake normative-theoretical a casedefensein L. R HE IDE IDE OF THE The Jacksonian Integration of Parties into the Constitutional S ?: T MARQUETTE LAW REVIEW LAW MARQUETTE namely, their role of offering narratives of affiliation to to affiliation of narratives offering of role their namely, N THE ARTIES [T]he [T]he major American parties have articulated views that were (and are) ) ) 1/17/2019 8:28 PM , 76 N.Y.U. A TheoryA of Political Parties: Groups, Policy Demands and Nominations in P ,O ERSPECTIVES ERSPECTIVES ON HY .Q.85,107(1986); ELETE In setting forth policy positions, statements about present D CI Parts III and IV. Parts III and IV. 14 ,W , 10 P OT .S sometimes more and sometimes less explicit less sometimes and more sometimes N O OL OSENBLUM 14 (Benjamin I. Page ed.1995). He labels with various constituencies in American society. at 6. For an opposing view, see Kathleen Bawn, Martin Cohen, David Karol, Seth Masket, Masket, Seth Karol, view, David opposing an Cohen, For Martin Bawn, 6. Kathleen at see My aim here, however, is to highlight one valuable function of LDRICH 7 11 (D 13 L. R Id. Id. .See infra infra .See .See infra infra .See , 101 P 1996, at 6 (1998) H. A 13. For a concise summary of the three conventional views or conceptualizations of parties, see see 13.parties, of conceptualizations or views conventional three the of summary concise a For 14. 17.ha theorists political Relatedly, 16 15 ANCY ANCY MERICA MERICA OCUMENT OHN OHN coherent, coherent, differentiated, and stable. American party history and, by extension, American political at large history demarcate demarcate focal points of commonality and affiliation themselves, for their values, or those their policy who positions in a view similar way. more on in particular their for government use and capture to seeking activists and groups interest of coalitions as goals, whichrange from material self-interest to high- (emphasizin autonomy). organizational party political J kind of political community; to interpret ideas of political party as broader theories of politics can be be can theories of politics as broader party political of ideas to interpret community; of kind political 1820 A parties parties in American constitutional democracy); Nathaniel Persily, Political Party Autonomy 392 392 And similarly, scholarship from political science has set distinct forth a understandings number of of the political dynamics that parties. give rise to political D conditions conditions in American life, statements on future reform, and even in sending provide parties political constituencies, distinct to signals less-than-substantive statements clearly clearly a valuable function of political parties. seeking to realize their goals [reelection, policy goals, personal prestige, etc.], choosing within and possibly shaping a set given of and institutional arrangements, so choosing within a given historical context. HansNoelJohn & Zaller, American Politics of partisanship grounded, in part, on the value of political parties serving as a conduit for citizens to stand as together striving a for collectivity broader some set of democratic means. goals through N political political parties linked to their system constitutional role in facilitating broader the fidelity electorate. to the System affiliation 40986 mqt_102-2 Sheet No. 46 Side B 01/29/2019 13:38:24 01/29/2019 B Side 46 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 47 Side A 01/29/2019 13:38:24 . OL P , N.Y. , ORALS OF M 393 393 , narratives of of , narratives Foreword:Traces Constitution might Constitution ERSPECTIVES ERSPECTIVES ON OLITICS OLITICS AND ,4 P ,4 P HE surrounds surrounds the :T This might allow for more more for allow might This tive for the constitutional system and system constitutional the for tive 19 And precisely because the the because precisely And 18 6; Michelman, I. Frank EOPLEHOOD P A Defense of Party Spirit of acceptance that that acceptance of note 9, at2 TORIES OF supra , ,S .4,64(1986). .4,64(1986). EV MITH ALKIN DemocratsarePlaying Checkers While TrumpPlaying is Chess .L.R M. S 56 (2003).narraof relevance the On ARV ) ) 1/17/2019 8:28 PM 42 note 3, at 1811. OGERS OGERS the the American political system, thereby perhaps providing a ELETE 68 (2008); Muirhead, Russell D , 100 H , 100 , R OT supra supra N 353 The degree to which the polity has grappled with questions over POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O Thomas B. Edsall,B. Thomas EMBERSHIP 20 within M 11 (D 20 (2006). .See .See .See, e.g. .See, (Oct. 12, 2017), https://www.nytimes.com/2017/10/12/opinion/democrats-are-playing- 2017), 12, (Oct. 20 19.consti to respect with notes Fallon As 18 To the extent that the legal and policy outcomes in place at any given As others have written, narratives of belonging are central to the Such questions regarding constitutional fidelity, affiliation, and party M K IMES OCUMENT OLITICAL ARTISANSHIP C Y be experienced be in experienced diverse ways, then the fabric checkers-while-trump-is-playing-chess.html?_r=0 [https://perma.cc/8Z93-H4BQ]. [https://perma.cc/8Z93-H4BQ]. checkers-while-trump-is-playing-chess.html?_r=0 narratives of affiliation from parties offer a chance for competing narratives to to narratives for parties a chance competing narratives offer of from affiliation play out somewhat safer and less threatening space for contestation over questions of and exclusion. belonging affiliation put forth by the parties expand may the scope of and legal plausible time. in moment same that at play in views policy narratives of affiliation offered by parties are one step removed from questions questions from removed step one are parties by offered affiliation of narratives of belonging to the American national community itself, the former provide a valuable words, other In venue weighty. less slightly is that manner a in affiliation for surrounding exploring significant controversies and questions constitutional interpretation, see B see interpretation, constitutional T P P 713, 719 2018] 2018] that it is a function so basic that it has been present in some form throughout were when parties periods historical encompassing history, political American cohesive. ideologically more and cohesive, ideologically less stronger, weaker, construction of stable political communities. D of Self-Government of elections. elections. ideology would be worth exploring in any these But period democracy. of constitutional American our of history life given the to are they fundamental how questions have particular urgency in the present time for at least two reasons. First, the explicit articulation and contestation over narratives of reached belonging new levels of intensity with the aftermath. 2016 presidential election and its Americans Americans to perceive their own world-views reflected in the constitutional system. Indeed, such narratives may provide stability-promoting benefits in or reversibility policy future on losers political to solace greater giving perhaps provide hope that the time for reform is no further away than the next set of 40986 mqt_102-2 Sheet No. 47 Side A 01/29/2019 13:38:24 01/29/2019 A Side 47 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 47 Side B 01/29/2019 13:38:24 , - 22 in in M K EW N C Y (June (June HE , T OALITION AND ROSPECT To be sure, sure, To be C .P 23 M , A The Unconnected and to what extent ONSERVATIVE C [102:387 [102:387 EW of present party alignments. N HE note 21,at 1. :T supra supra MERICA A ED R 46 (2006). (2006). 46 2. 2. 45 UILDING UILDING MARQUETTE LAW REVIEW LAW MARQUETTE OWER ,B P ) ) 1/17/2019 8:28 PM Still, the 2016 presidential election lay bare the divisions DSALL or or even future disintegration 24 The Great Divide: Clinton, Sanders, and the Future of the Democratic Party ELETE D B. E , Mar. 21, 2015, at 1 at 2015, 21, Mar. , Winning (Some) Middle-of-the-Road Working-Class Whites

OT ERMANENT P N 21 O ORKER HOMAS Y 11 (D , Oct. 31, 2016, at 8. Others have described the core of this coalition in slightly different terms terms different slightly in coalition this of core the described have Others 8. at 2016, 31, Oct. , EW RIVE FOR 24. the Lizza Ryan two describes 23.Pac George 22. T 21. Ryan Lizza, Second, and equally momentous, competing narratives about affiliation are are affiliation about narratives competing momentous, equally and Second, N D ORKER HE OCUMENT business business (both big and small) and the relatively more socially conservative taking taking place right now within a 2016 the to chaotic Up context generally. more democracy for constitutional American andboth parties American political presidential election, Republicans set forth the image of being the party of 1, 1, [https://perma.cc/Q62P-7V63]. 2017), Wall Street, and pro- laissez- more and world, financial http://prospect.org/article/winning-some-middle-road-working-class-whites while in contrast, Democrats set forth a vision of being the party of unions, the the the of unions, party being a of vision forth set Democrats contrast, in while working-class, relatively more disempowered social cosmopolitan. theand more liberal, groups socially more the minorities, such as racial recent recent electoral politics and public analogue commentary going seemingly back has at no precursors to least the present-day ready context can to be found, of the course, in the Obama presidency presidency). of Bill Clinton (though Y 394 394 who falls within the American political community D Andrew Levison, THE THE between between the establishment and insurgent wings of both the Democratic Republican and parties, and conditions at present seem particularly ripe radical revision for the internal internal tensions within these party coalitions complicated certain their values or policies stances (a largely inescapable on feature of American parties), and it would not be difficult to show how policy outputs conflicted with these party self-images at different moments in time. liberal Indeed, socially in of recent times, presence such odd seemingly the by illustrated are tensions internal economic elites and Republican Party, and socially the outsized role of Wall Street money conservative in the modern working-class Democratic Party. voters in the T Hence we see within the present-day Democratic and Republican parties not 40986 mqt_102-2 Sheet No. 47 Side B 01/29/2019 13:38:24 01/29/2019 B Side 47 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 48 Side A 01/29/2019 13:38:24 395 395 and (2) in Parts III, III, Parts in (2) and al al rights and on the particularly particularly with respect to the rooted in contemporary legal theory theory legal contemporary in rooted especially with respect to their views views their to respect with especially Ultimately, I hope to offer some clarity clarity some offer to hope I Ultimately, so I will limit my focus to those ideals and ) ) 1/17/2019 8:28 PM ELETE D With respect to Jacksonian Era party ideologies, historical OT 25 N POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O that that may have broad appeal in contemporary American politics: 11 (D 25. The of relevance Era Jacksonian for party ideologies present-day politics can no doubt be Let me close with a note on my choice of the Jacksonian Era as the reference reference the as Era Jacksonian the of choice my on note a with close me Let My general goals in this paper are precisely to deepen our understanding of of understanding our deepen to precisely are paper this in goals general My M K OCUMENT C Y some some of the most contentious constitutional legal questions confronting the Trump the of context present the from evolve may narratives party such how on presidency. (4) Finally, also in Part a andfrom affiliation normative legal more bent. will I VI,discuss a Specifically, I will address narratives fidelity of constitutional of narrative party of kind and the work of Jack Balkin, but oriented politics more empathically toward party debate debate continues to be fierce on these points ideology of the Jacksonians principles that enjoy some ideologies, party convergence contemporary more to respect With within era. the of interpretations some of the key historical I will primarily focus on party platforms from the 1992 presidential election through the 2016 presidential election. (3) Building upon the Parts discussion III, IV, in and V, I will provide a more systematic mapping of Jacksonian Era concepts onto present-day politics with intersect and evolve in may ideologies party present-day how on speculation Part VI. I will also offer some point point for my analysis of party contemporary ideologies. Why this era and not namely, namely, a of narrative redemption. Building off of the discussion in Part V, I will discuss the implications of this rights. individual over narrative controversies for some of the present-day IV, IV, and V, I will illustrate how those themes have remained prominent facets of modern-day Democratic and Republican party ideologies since at least the early 1990s. 2018] 2018] just competing narratives of affiliation within each, but competing narratives other. each to hostile affirmatively are that party affiliation narratives and the In system. constitutional the to fidelity contemporary popular of understanding our enriching political context, thereby II, Part In (1) points: primary four demonstrate to seek will paper this so, doing I will identify some core themes society American of composition the and economy the on of Jacksonian Democratic (hereafter D identified in every era of American politics since the mid-nineteenth century. century. scope of Since the this era since the in mid-nineteenth politics of every identified American in given 1992 of Clinton election the to I start with chose in some manner, be to had paper delimited this in paper. prominently figure which campaign that in themes class-based of presence the 40986 mqt_102-2 Sheet No. 48 Side A 01/29/2019 13:38:24 01/29/2019 A Side 48 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 48 Side B 01/29/2019 13:38:24 , n M K C Y (Mar. donald- Jackso Much Much

Jackson Jackson IMES 26 T aided aided and RA Andrew

E , N.Y., RANSFORMATION OF T HE Channeling :T ? Because comparisons comparisons Because [102:387 [102:387 ACKSONIAN ACKSONIAN 29 Generally, Whigs were J 30 Secret

s ROUGHT ’ Even though a more coherent coherent more a though Even W 32 OD Trump

m/2016/02/17/opinion/campaign-stops/ G ATH ATH Donald H some some prominent narratives of affiliation Further, as we will also see, the Jacksonians DEOLOGIES IN THE DEOLOGIES IN THE HAT HAT I 27 Examining some of these concepts at their their at concepts these of some Examining ,W 28 MARQUETTE LAW REVIEW LAW MARQUETTE ARTY ARTY OWE P H VI. ) ) 1/17/2019 8:28 PM Jackson and Trump: How Two Populist PresidentsPopulistTwoCompare How Trump:andJackson ALKER ELETE 81. as we will see D Part II. Part II. W Parts II Parts Jacksonian voters, on the other hand, tended to be tied to less- OLITICAL OLITICAL OT 1848,at 578 (2007). 31 N P O at 579. 579. at 577 at II. (Feb. 17, 2016), https://www.nytimes.co 2016), 17, (Feb. ANIEL 11 (D ,1815 .See infra .See .See infra infra .See .See infra infra .See .Id. .Id. IMES T 29. Baker, Peter 28 30. D 27 26 31 32 MERICA OCUMENT like like the present time, party competition was fierce in the early-mid nineteenth century with developed developed agricultural areas, and and white ethnic immigrants. nonevangelicals generally had greater strength among The The Jacksonians and Whigs were both truly national parties, and as such, they were both successful in drawing support from a diverse range of professional, religious, ethnic, and geographic constituencies. American within uniformity ideological that case the been political commonly parties has has It been precluded by the disparate nature of party coalition members.The Jacksonian Democrats and the Whigs during the middle third of the nineteenth century illustrate this point as well as any historical example. inception may offer us some leverage in understanding their deployment in the the in deployment their understanding in leverage some us offer may inception present-time. Finally, it comparison has is seeped also into some worth public encouraged commentary noting in as no that well small the part Trump by Trump himself. and Whigs were responsible for setting forth a set of concepts and arguments about American politics, society, and the economy influence that into retain the vitality and present. A 396 396 some other? First, the Jacksonian period was also a period of party upheaval, activism, and transition competition. Jacksonian Democratic-Whig of era a new to dominance from the prior era of Democratic-Republican D 15, 15, Inskeep, Steve 2017), [https://perma.cc/G3T3-6C6F]; https://www.nytimes.com/2017/03/15/us/politics/donald-trump-andrew-jackson.html between between the two eras have been featured in public commentary, the focus on too. reason this for fitting seems point reference a as Era Jacksonian the stronger stronger in more economically-developed evangelicals. regions, in cities, and among trumps-secret-channelling-andrew-jackson.html [https://perma.cc/RRC2-GHXE]. [https://perma.cc/RRC2-GHXE]. trumps-secret-channelling-andrew-jackson.html prevailing prevailing within both parties. N.Y. 40986 mqt_102-2 Sheet No. 48 Side B 01/29/2019 13:38:24 01/29/2019 B Side 48 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 49 Side A 01/29/2019 13:38:24 ]; note note . 615 1924, at at 161 ,1815 EV supra supra id. id. .R 135 (1990); 508(2005). EVOLUTION IST R MERICA H 397 397 A DEOLOGY IN THE I INCOLN EPUBLIC EPUBLIC 1892, 1892, see L R ARKET ALLEY ALLEY M .V the glue that bound bound that glue the HE ARLY OLITICAL OLITICAL 33 ISS P ACKSONIAN ,T M :J EFFERSON TOEFFERSON , 10 J. 10 , E , 44 ARTY ARTY :J P ELLERS acksonian acksonian coalition led it to focus on EVOLUTION R EMOCRACY broken down into rough viewpoints on on viewpoints rough down into broken 38 D 35 RISTOCRATS ARKET ARKET M 65. 65. & 87. HE MERICAN MERICAN A , T 48 (1983). ISE OF OF ISE GRARIANS ELLERS R S Though disagreement continues between historians on on historians between continues disagreement Though note 33,at 62 HE , 36 note 34,at 486 ) ) 1/17/2019 8:28 PM Andrew Jackson Versus the Historians ,T 1846, at 47 supra supra , HARLES HARLES ELETE supra supra D , ,C ILENTZ SHWORTH OT ,1837 N A W I would propose the following set of discrete elements of a a of elements discrete of set following the propose would I POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O supra supra Politics and Society: Toward a Jacksonian SynthesisJacksonian a Toward Society: and Politics 39 (Oxford University Press 1991) [hereinafter S 124. For his discussion of Democratic Party ideology from 1828 37 And likewise, as commentators have noted, part of the glue for the , ILENTZ SHWORTH EAN EAN OHN OHN 34 11 (D TATES 87. As noted below, however, I am proposing that a substantive set of principles also served served also principles of set substantive a that proposing am I however, below, noted As 87. S .See, e.g. .See, at at 57 at 438 35. W 38. The discussion below both draws from and converges with the discussion of party ideology 38. ideology party of discussion the with converges and from draws both below discussion The 36. A 37 33. J 34. S Yet, if an oppositional logic constituted some of the binding force of both ERRING id. id. M K NITED OCUMENT C Y to bind this coalition together. together. coalition this bind to electoral electoral coalitions, one might also identify a larger world-view that emerged and Jacksonians the of ideologies party the Indeed time. over parties both from Whigs were substantive enough society. and economy to encompass broader views about the 86. 86. 14, at 86 at 14, relatively relatively greater embrace of the more impersonal, modern, manufacturing perhaps best remembered perhaps best in remembered the present day in comparison to the Jacksonians, Whigs the perspective, modern a From economy. the of view distinctive its was are often viewed as the more forward-looking of the two parties, with a Charles Grier Sellers, Jr., Daniel Feller,Daniel U Democratic and Whig party ideology party Whig and Democratic each party. by and society the economy 2018] 2018] party ideology would later crystallize by the late 1830s D (1958). (1958). in G Whig Whig coalition was an equally Andrew Jackson powerful and oppositional accompanying logic: fears system. antipathy constitutional the of corruption of to presidential and Democratic the Jacksonians together was, at first, a sense of alienation from the national republican wing of the to John that Adams delivered presidency the bargain Quincy supposed corrupt Jeffersonian Democratic Party in 1824. prompted by the Indeed, Jaenicke argues that the deep as glue heterogeneityof the primary Jaenicke, settlements the coalition. and institutional proceduralism of the J ideologies is within his examination of Whig-Republican and Democratic ideologies spanning decades decades spanning ideologies Democratic and Whig-Republican of examination his within is ideologies beyond the Jacksonian Era. For his discussion of Whig-Republican Party from ideology 1828 see 1846, the precise content and coalitions, coherence of these views across such disparate 40986 mqt_102-2 Sheet No. 49 Side A 01/29/2019 13:38:24 01/29/2019 A Side 49 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 49 Side B 01/29/2019 13:38:24 , M K C Y note 34, OLITICAL OLITICAL note 37, at P CHLESINGER supra supra HE , supra supra ARTIES ARTIES AND THE ,T M. S , :P ILENTZ OWE H RTHUR RTHUR EVOLUTION R ALKER [102:387 [102:387 W NDIVIDUALISM I note 40,at 9; W note 30,at 583. ARKET ARKET note 40, at 9; A M ANIEL ANIEL note 40, at 13. supra supra HE 44 , , 18 (1989). ,T supra supra supra supra , OLITICS OF , 15 OWE OWE (and the shift of many Whigs into the P H 78, 82; D 45 RA RA OWE In short, the Party sought to appeal to any any to appeal to sought Party the short, In OWE ELLERS E HE and (b) a view of American society as as society American of view a (b) and 42 40 Hence the Whigs sought to appeal not just to to just not appeal to sought Whigs the Hence ,T 41 see also see OHL 16 (1979); H (1979); 16 K ACKSONIAN ACKSONIAN 71 71 (1946); S MARQUETTE LAW REVIEW LAW MARQUETTE J HIGS note 33, at 77 note 33, at 70; H W note 33,at 55; H 270 note 34, at491. ) ) 1/17/2019 8:28 PM REDERICK note 30,at 583; note 40,at 13. supra supra supra supra supra F note 34, at486. , , , 43 ELETE supra supra D MERICAN , ACKSON A J supra supra OT supra supra , , N supra supra , O HARACTER IN THE 39 ILENTZ C SHWORTH OWE SHWORTH OWE SHWORTH AWRENCE GE OF had a responsibility to develop their potential to the Causes fullest. like temperance and public education fostered these values and also helped produce a economy. of a developed demands population ready for the [Whigs] [Whigs] wanted to in nurture that a would believed they society because impose strongly cultural (moral) homogeneity and respect conscientious individual autonomy, in contrast to the Democrats, who valued the autonomy of the small white community. Much more to seemed Duties demagogy. and violence, than lawlessness, about Democrats, nation Whigs the and individuals both worried and rights, as important as them 11 (D A ILENTZ HE 41. A 43. A 42. H 45. W 39. L 40. A 44. H This This impulse explains the presence of temperance advocates and anti- Beyond Beyond this economic vision and its implications for American society, ., T MERICAN ULTURE OF THE OCUMENT R it to two significant corollaries (a) to it avision: itsfor economic torole corollaries the two crucial significant state and federal improvements, governments the tariff, and support in for a national undertaking bank that might growth aid actions the of a such national as economy; internal Republican Party later). To be sure, this Whig outlook on moral uplift and slavery slavery advocates in the Whig Party composed of non-antagonistic segments that all stood to gain from the common common the from gain to stood all that segments non-antagonistic of composed economy. growing this of fruits C A 398 398 economy. D J at 489. 489. at 363; W 363; investors investors and manufacturers, but also to artisans, wage-earners, and markets. farmers commercial for grew who there was a moral component to the Whig outlook among on American improvement society. moral for desire As strong a was there emphasized, has Howe development: economic for vision larger their into tied which Whigs, many upwardly upwardly mobile individuals who world. economic foresaw greater benefit from a larger 40986 mqt_102-2 Sheet No. 49 Side B 01/29/2019 13:38:24 01/29/2019 B Side 49 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 50 Side A 01/29/2019 13:38:24 , 48 as or supra supra The , 49 SHWORTH ILENTZ 399 399 suggested suggested that as well. A 51 nd statend level note 30, at 386, 582; W note 30,at 386, 583. supra supra supra , , OWE OWE 47; 47; H carried over to the local a local the to over carried as illustrated by the Jacksonian hostility to the note 33, at 39 note 33,at 76. note 33,at 20, 37; H 50 ) ) 1/17/2019 8:28 PM note 30, at583. note 30, at386. note 30,at 386. supra supra supra supra supra , , , ELETE 43. D supra supra supra OT supra supra , , , N POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O Second, free of federal governmental influence, the unregulated 52 OWE SHWORTH OWE SHWORTH OWE SHWORTH But especially when contrasted withthe Jacksonians discussed below, 47 11 (D 46 .Id. note 33,at 42 48. A 50. A 52. A 47. H 46 49. H 51. H This This basic concern connected to several key corollaries of the Jacksonian With respect to the Jacksonians, countervailing views of the economy M K OCUMENT C Y view view of the economy. First, intervention in the the economy preference for less federal governmental Second Bank of the Uni internal improvements with his veto of the Maysville Road And it is also this piece America. modern-day of point vantage the of from glance, first at anachronistic, Whig Party ideology that seems perhaps most staked out a different clearly view and spoke to some different constituencies. the Bank on the by his of renewal Second veto dramatically Asmost indicated of the United intertwinement of the American witheconomy the federal government. States, Jackson articulated a deep concern about the the ideal economy would be one relatively more free of centralized economic planning. 2018] 2018] anti-slavery and slaveholders of presence the by complicated was improvement advocates within the Party, so it is hard to think probably any of other party principle mentioned in this this paper for that matter party principle a point of actual consensus among Party policy. members at the level of specific D to American imperialism: incorporating American more state would only complicate this aspiration to societal uniformity. diverse peoples within the a corrupt government. a corrupt primary primary concern with the American economy for Jacksonians was to prevent of class privileged artificially an create would that action governmental federal of interventions the from benefit unfairly might who entrepreneurs or investors supra supra note 34, at 370. Some of this anti-statism thisof Some 370.34, atnote economy economy would tend toward more egalitarian outcomes with more of an one discerns Americans a estimation, their By relatively unit. greater cohesive a as interest America of vision among normative many leading Whigs in a were meant to be bound together by common norms, morals, and a common outlook. 40986 mqt_102-2 Sheet No. 50 Side A 01/29/2019 13:38:24 01/29/2019 A Side 50 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 50 Side B 01/29/2019 13:38:24 - T 55 I M K HE HE C Y ,T ADE ARKET M M EYERS HE HO HO M W ,T EN EN M ARVIN ore of their philosophytheir of ore ELLERS 54 the farmers, the farmers, 21; 21; M [102:387 [102:387 23 (1957); S RADITION AND THE ANDRADITION T 17, 19 17, Finally, the Jacksonian view of of view Jacksonian the Finally, note 41, at 306 53 9, 12 9, OLITICAL OLITICAL 6 P supra supra , who have neither the time nor the 27. 27. 27. 27. ELIEF B 26,345, 352,qualified439.aFor concurrence thison view, MERICAN A CHLESINGER HE 82,582.Forsomewhat a skepticalmore thison view point, Richard MARQUETTE LAW REVIEW LAW MARQUETTE ,T note 33,at 24 note 33,at 24 OLITICS AND OLITICS AND 80. 29; S ) ) 1/17/2019 8:28 PM :P the the former of which would be harmed by federal supra supra supra supra at 72 , , ELETE note 37,noteat325 321, 24, 24, 28 D OFSTADTER note30, at380 OT H N ERSUASION supra supra O P , . at 21 SHWORTH SHWORTH supra supra see also see id. exclusive exclusive privileges, to make the rich richer and more powerful, the humble members of society the potent mechanics, and laborers It It is to be regretted that the rich and powerful too often bend the acts of government to their selfish purposes. Distinctions in society will always exist Equality under of every talents, just of education, government. produced by or human institutions. In of the full enjoyment of the wealth can not gifts of be Heaven and the fruits of superior industry, economy, and virtue, every man is equally entitled to by protection law; but when the laws undertake to add to these natural and just and gratuities, titles, to grant distinctions, artificial advantages means means of securing like favors to themselves, have a right to complain of the injustice of their Government. abuses. its There in are only no exist evils Its government. in evils necessary If it would confine itself to equal protection, and, as Heaven , 11 (D ICHARD ICHARD .Id R OWE 55. A 54 53. A EVOLUTION OCUMENT ACKSONIAN creative the for pathway possible every open to business, liberate but to throttle to not is aim its class; enterprisepeople.theJacksoniantheAlthoughof leadersaggressive more wereJeffersonians than the was the same: both aimed to take the grip of government-granted privileges off the natural economic see H see This is what Jackson himself stated in the most memorable passage of his veto of his veto passage memorable the most in stated himself Jackson isThis what States: United the of Bank Second of the Jacksonian rhetoric i rhetoric Jacksonian Perhaps the enduring feature of Jacksonian political historiography has has historiography political Jacksonian of feature enduring the Perhaps class- economic read not) have (or have commentators which to degree the been 80 (1989); (1989); 80 J R 400 400 agrarian and less a manufacturing bent. D American American society ultimately saw it as indeed composed of competing social classes in the f special interests governmental interference in the economy, and former. the with lay clearly sympathies Jacksonian benefit. the latter of which would 40986 mqt_102-2 Sheet No. 50 Side B 01/29/2019 13:38:24 01/29/2019 B Side 50 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 51 Side A 01/29/2019 13:38:24 01, They 58 itself itself a crucial 401 401 note 14, at 100 supra A potential problem 61 As noted below, this is a a is As noted this below, 60 central issue for the early Jacksonians. Jacksonians. early the for issue central with with many of the latter vested the 56 with Whigs relatively more open to federal federal to open more relatively Whigs with hintsat anarea where the use of state power held few anxieties for The Jacksonians thus emphasized themes of mutual 57 note 34, at489 (stating, though not endorsing, this view). ) ) 1/17/2019 8:28 PM note 30,at 582. ELETE supra supra 83. Of course, the issue of slavery also highlights the complicated or partitioned partitioned or complicated the highlights also slavery of issue the course, 83. Of D , OT supra supra 59 , N POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O at 582 at ILENTZ OWE 57, 584. does its rains, shower its alike favors on the high and the low, the rich and the poor, it would be an unqualified blessing. In the act before me there seems to be a wide and unnecessary just principles. these from departure Id. 11 (D .Id. 356 58. Even though it is not a point of emphasis in the preceding discussion, Howe identifies white white identifies Howe 58.discussion, preceding the in emphasis of point a not is it though Even 60. W 56. President Andrew Jackson, Veto Message Regarding the Bank of the United States (July 10, 10, (July States United the of 56.Bank the Regarding Message Veto Jackson, Andrew President 57. H 61 59. M K at OCUMENT C Y suggest suggest at least three ways to characterize the divergence in the larger visions offered by divergent thea to reduced be might Jacksonians Whigs and Jacksonians the and between differences Whigs. First, one statethe ofproperrole theonview might argue that the so.less Jacksonians and intervention governmental in the slave economy. intervention complemented These a economic Whig commonly the ideals noted to and feature contrast of In their Jacksonian emphasis society. thought on American of federal structure governmental desired non- the to regard with focus on party the as core its at plurality and cohesion diversity had Jacksonians the improvement, in American of northern immigrants society and southern farmers and the centrality of moral on key economic issues like internal improvements. distinction. this with emphatic too being against caution Still, others helpfully distinction that I think has value; it captures the divergence between the parties parties the between divergence the captures it value; has think I that distinction Id. supremacy, and the policy question of Indian Removal, as of Removal, and Indian question the policy supremacy, with it, for example, is that it fails to align with the Jacksonian support for on moral matters. The use of state power to preserve elements of white supremacy part of the social glue needed agrarians to white and slaveowners, die together a disparate collation of white Jacksonians. ethnic Still even on the immigrants, slavery issue, the ethos of laissez-faire remained prominent and was in slavery the territories in the of middle the Jaenicke,century. nineteenth 106. nature of this Democratic commitment to moral pluralism and federal governmental non-interference 2018] 2018] D opposed this moralizing of the Whigs and favored an ethos of cultural or moral moral or cultural of ethos an favored and Whigs the of moralizing this opposed laissez-faire. non-interference, non-interference, at least on matters of morality related to white men. 1832), http://avalon.law.yale.edu/19th_century/ajveto01.asp [https://perma.cc/69RM-7YFH]. [https://perma.cc/69RM-7YFH]. http://avalon.law.yale.edu/19th_century/ajveto01.asp 1832), 40986 mqt_102-2 Sheet No. 51 Side A 01/29/2019 13:38:24 01/29/2019 A Side 51 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 51 Side B 01/29/2019 13:38:24 62 M K C Y For the the For 68 note30, at347 However, However, Under this this Under 66 63 supra supra , OWE [102:387 [102:387 64. note34,at489; H Thus, he views their modern- their views he Thus, 67 supra supra , note 33, at 62 ILENTZ 16. supra supra , As such, he views their seemingly-anachronistic MARQUETTE LAW REVIEW LAW MARQUETTE 69 note 34, at514, 516. 65 ) ) 1/17/2019 8:28 PM SHWORTH note40, 20;at W note 40,at 20. note 39, at15 A ELETE supra supra D , supra supra OT supra supra supra supra , , N , O see also also see The Whigs were the opposite on each a favoring dimension: more at16. ; ILENTZ 64 OWE OHL OWE 11 (D 57. 57. .Id. .Id. .Id. .Id. .Id. 63. H 64 65 66. W 69 68 62. H 67. K OCUMENT present and past. Kohl has argued, for example, that the Jacksonian world view view world Jacksonian the that example, for argued, has Kohl past. and present was more tied to traditional social relationships and was more fearful of the impersonal, growing market economy. especially especially when the focus is on their respective visions of the economy and society, arguably a more compelling view would categorize the Whigs as the more future-oriented party with the Jacksonians being more focused on the 48, 356 48, and uniformity on views differing their in rooted be should parties the between Howe suggests that a second possible characterization of the divergence diversity with respect to certain segments of American society. and relations social reconstruct to need the grasped they future; the of embrace communal bonds with greater urgency than the Jacksonians because of their 402 402 federal intervention in matters like regulation. economic of kinds Indian certain to respect with non-intervention federal Removal and Whig support for D sounding sounding assertions of radical equality as more a response to the threats they perceived, and discomfort they felt, in this newly emerging world. greater greater impulse toward creating a more morally uniform, cohesive American community. political diverse economy diverse that economy had room for and manufacturing industry, paired with a view, view, Jacksonians were to respect more with diversity to inclined more and society) inclined agrarian more a favoring to uniformity on the economy morality. (in respect the two with parties between distinguish andonealso Third, finally, might to their orientation Jacksonians on were the time. party of the future; unlike Superficially, the Whigs, Party one the still Democratic might nominally exists, think and the Jacksonian modern rhetoric and sensibilities policies speak in to of elevation their men), white among least (at a principles egalitarian democratic number of ways the presidency, including and their their creation elevation of of a mass, national party. 40986 mqt_102-2 Sheet No. 51 Side B 01/29/2019 13:38:24 01/29/2019 B Side 51 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 52 Side A 01/29/2019 13:38:24 70 72 403 403 (July 13, 1992), 1992), 13, (July (Sept. 3, 2012), 2012), 3, (Sept. (July 21, 2016), 2016), 21, (July (July 27, 2004), 2004), 27, (July (Aug. 26, 1996), 1996), 2000), 26, 14, 2008), (Aug. 25, (Aug. (Aug. ROJECT P ROJECT ROJECT ROJECT ROJECT ROJECT ROJECT P P P P P P s. s. Apparent within these DEOLOGIES I 83. RESIDENCY .P ARTY ARTY Whigs, on the other hand, desired Hence the anti-federal governmental governmental anti-federal the Hence RESIDENCY RESIDENCY RESIDENCY M RESIDENCY RESIDENCY RESIDENCY P at 582 at 71 73 , A .P .P .P .P .P .P M M M M M M see also see id. , A , A , A , A , A , A ONTEMPORARY C The Contemporary Democratic Party Party Democratic The Contemporary ) ) 1/17/2019 8:28 PM A. III. note 30,at 582; ELETE 83. D 17. OT supra supra , N POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O at582 at 16 at OWE 1992 1992 Democratic Party Platform 11 (D .Id. .Id. .Id. 72 73. 70 71. H Beginning with the modern-day Democratic Party, it is clear that elements it elements clear that is Democratic Party, with modern-day the Beginning With the example of the Jacksonian Era parties in mind, how do M K OCUMENT C Y http://www.presidency.ucsb.edu/ws/index.php?pid=29612 http://www.presidency.ucsb.edu/ws/index.php?pid=29612 Democratic 2004 Party Platform [https://perma.cc/7CWS-RTUQ]; http://www.presidency.ucsb.edu/ws/index.php?pid=78283 Democratic 2012 Party Platform [https://perma.cc/X6NT-M74N]; http://www.presidency.ucsb.edu/ws/index.php?pid=29611 Democratic 2000 Party Platform [https://perma.cc/922S-XTZL]; transformation economically, culturally, andeconomically, transformation in morally the polity. American Whigs and Jacksonians the between divergences of points these to return will I below. Parts in the http://www.presidency.ucsb.edu/ws/index.php?pid=101962 Democratic 2016 Party Platform [https://perma.cc/L3NT-DPAC]; intervening and managing the economy. the managing and intervening contemporary party ideologies look by comparison? A useful starting point for for point starting useful A comparison? by look ideologies party contemporary gaining some sense of party ideology in the present-day is to refer to each Democratic and Republican platforms are both continuities and breaks from ideologies. party Whig Jacksonian and of both Jacksonian and Whig party ideology have been dominant views within its on the economy since election. at With least respect 1992 to the through Whig influence, the transformation, Democrats have since emphatically embraced a 2016 at role for the state least in presidential the New Deal http://www.presidency.ucsb.edu/ws/index.php?pid=29610 Democratic 1996 Party Platform [https://perma.cc/AXU2-4NHA]; 2018] 2018] recognition and acceptance of the disruptive nature of the market economy. D intervention part of Jacksonian ideology with to has part respect the ideology economy intervention Jacksonian long of since been discarded among Democrats in favor of Whig economic http://www.presidency.ucsb.edu/ws/index.php?pid=29613 Democratic 2008 Party Platform [https://perma.cc/U26V-5Y8T]; http://www.presidency.ucsb.edu/ws/index.php?pid=117717[https://perma.cc/DW4B-H7HQ]. 40986 mqt_102-2 Sheet No. 52 Side A 01/29/2019 13:38:24 01/29/2019 A Side 52 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 52 Side B 01/29/2019 13:38:24 M K C Y 2000 2000 1996 good jobs note 73. 73. note and also in alignment alignment in also and Alongside this point point this Alongside supra , 76 broad-based, broad-based, non- managing the national [102:387 [102:387 1992 Democratic Party Party Democratic 1992 If we may infer a and we know that our record record our that know we and 77 to forge a prosperity that does does that prosperity a forge to This has been a marked feature 75 . note 73. note 73. supra supra , , there has been an excessive preoccupation of of preoccupation excessive an been has there 2004 DemocraticParty Platform note 73. 73. note MARQUETTE LAW REVIEW LAW MARQUETTE supra , ) ) 1/17/2019 8:28 PM But perhaps even more significantly more even perhaps But ELETE 73. policies to allow prosperity to blossom to prosperity allow to policies Democratic Party Platform just for those who are successful. already We believe that will help strengthen and expand the strongest middle class the world economic growth, and preventing another one millionjobs from being Democratic Party Platform 22 million created have people in than 30 American The more years. new jobs. We have Americans own their home than the ever before. Looking back lowest on 1992, inflation rate this much is are clear: Americans better off than we in were eight years decades. More . . ago. It took innovative, new Democratic policies environment to where prosperity create the could bloom. It will take more such success. success. In the last four years we worked the to In get the American people. economy our going: in investing and trade, expanding deficit, the cutting next four years we have Americans: balancing to the budget, creating make more jobs, making sure the all new economy families can count on workgood health care and a for secure and, retirement, all most of all, expanding educational opportunities so all Americans can yearslastfour the overrecordeconomic is a record to build on, not to rest on. We have to move forward, to make sure that opportunity to build a good everylife and share in the benefits of economic American willing to work hard has the economic inflationary growth and the opportunity that flows from it. Democrats in 1992 hold nothing more important for America than an Platform 74 D note 77. 77. note OT note N O See infra See Supra Supra 11 (D .Id. 74. 75. 76 1992: since 77. platforms Party Democratic the from statements these turn in Consider OCUMENT of emphasis is another corollary idea also tied to Whig ideology: a belief that continuing national economic growth will bring near-universal benefit to the country in lifting the economic fortunes of all. of every Democratic Party platform from 1992 to 2012. from platform Party Democratic of every with Whig economic principles economic Whig with contemporary Democrats from 1992 to 2016 economy toward greater economic growth with 404 404 interventionism. D 40986 mqt_102-2 Sheet No. 52 Side B 01/29/2019 13:38:24 01/29/2019 B Side 52 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 53 Side A 01/29/2019 13:38:24 81 2008, 80 405 405 2000, 79 note 73. 73. note supra , 1996, 78 2008 Democratic Party To take one example, this 85 note 73. 73. note 73. note 73. note 73. note 73. note note 73. 73. note supra supra supra supra supra , , , , , 2012 Democratic Party Platform note 73. 73. note supra , ) ) 1/17/2019 8:28 PM party platforms. The one exception was the 2004 Platform, Platform, 2004 the was exception one The platforms. party 83 ELETE fund, invest in road and bridge maintenance and fund new, fast-tracked fast-tracked new, fund and maintenance bridge and road in invest fund, projects to repair schools. these Taking jobs. We manufacturing of loss the to stem steps immediate believe that it economy the ishelp will and jobs good essential provide will measures to immediate take today. But generating truly shared prosperity is only possible if we also address our most significant long-run challenges like the rising lost. This will include care, health assistance education, like to services vital their states cut to having and from them localities to prevent and infrastructure. We passed recently will by Congress and ensure that states and that localities quickly implement the services.vital incuts avoid crisishousingcan the hard-hitby been housing have bill trust highway the replenish to infrastructure in investments support We We see an America where everyone has a fair share, shot, and does their plays fair by the same rules. educates, out-builds, and We out-innovates the rest see ofthe world. an America that out- We see an America with greater economic security and opportunity, driven by education, energy, innovation and infrastructure, and a tax jobs the and code that debt down bring to helps inAmerican create a Platform D note 73. 73. note Hence social welfare commitments have also maintained a vital vital a maintained also have commitments welfare social Hence OT 84 N POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O 1992 Democratic Party Platform Party Democratic 1992 Platform Party Democratic 1996 Platform Party Democratic 2000 Platform Party Democratic 2008 Platform Party Democratic 2012 Platform Party Democratic 2016 supra supra See 11 (D and 2016 and .Id. 82 78. 79. 80. 81. 82. 83. 84. 85 Still, there are also clear elements of Jacksonian ideology alive and well in andwell in alive ideology Jacksonian of elements clear also are there Still, M K OCUMENT C Y 2012, 2018] 2018] significance from its place in national the a managing with given concern this party importance), relative platform greater indicating (with earlier mentions economy toward achieving greater Democratic thought.Party Economic growth growth was the first item mentioned, or has been pervasive an item in mentioned in the first recent section, of the 1992, D the modern Democratic Party. First, as enamored as modern-day Democrats may be with the potential benefits of economic greater growth, it retains a skepticism relatively Republicans. toward market forces relative to contemporary where the economy was second behind the War on Terror, in the wake of the 9/11 attacks. role in Democratic Party ideology as role in crucial ideology needed Democratic Party to components correct for the negative consequences of a market economy. 40986 mqt_102-2 Sheet No. 53 Side A 01/29/2019 13:38:24 01/29/2019 A Side 53 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 53 Side B 01/29/2019 13:38:24 M K C Y to take power away away power take to [102:387 [102:387 1992 Democratic Party neither the policies of the the policiesofthe neither 87 note 73. supra , note 73. 73. note to reform public institutions and replace public officials officials public replace and institutions public reform to MARQUETTE LAW REVIEW LAW MARQUETTE supra 86 , ) ) 1/17/2019 8:28 PM ELETE need need special privileges if you want opportunity. This White House values wealth over fortunate hardfew at the expense of most businesses and working people, work, lavishes special treatment upon destroy a American jobs. Instead of meeting the challenge of accountable Platform last 12 years of tax breaks leadership and cuts in services for for the middle class and the the poor, nor thinking. new rich, without spending new mismanagement, and programs lack new of adoption of the spirittherenew to America,time grassrootsof the listento to time is It of citizen activism that has always been the touchstone of a free anddemocratic society. inrevolutiongovernmenta call forThereforewe and Washington in interests narrow and bureaucracies entrenched from put it back in the government hands of ordinary people. more We vow decentralized, to make more flexible, and more D OT N O We believe accessible, affordable, high quality health care is the have should Americans that promise, American the part of security that comes with good health care, and should go that broke because no they get sick. one Over the determined opposition of Republicans, we enacted landmark reforms that are already helping millions of Americans, and more benefits willcome soon. 2012 Democratic Party Platform Party Democratic 2012 11 (D 86. 87. comments: these Consider Yet, even if there may be a thread of continuity between contemporary Beyond Beyond this, the most prominent continuity between Jacksonians and OCUMENT Democratic Democratic and Jacksonian contemporary response to such concerns skepticism (such as the Affordable of Care obviously Act) diverges the from the market laissez-faire. economic relatively economy, greater Jacksonian the inclination to contemporary Democrats has been the occasional reference to quasi-populism in at least some of these Democratic Party platforms. While perhaps not as middle- the of concerns particular the on emphasis an comments these in see we class and joined working-class, with some anger toward the system governing constituencies. these of ill-treatment for 406 406 was the statement in the 2012 Democratic Party Platform on health care after 2010: in Act Care Affordable of the the passage D 40986 mqt_102-2 Sheet No. 53 Side B 01/29/2019 13:38:24 01/29/2019 B Side 53 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 54 Side A 01/29/2019 13:38:24 407 407 note 73. 73. note supra , To restore economic a government led by note 73. 73. note note 73. 73. note supra supra , , in in energy, education, infrastructure, note 73. 73. note and and we hereby pledge supra And the Platform added this comment with with comment this added Platform the And , 88 2004 Democratic Party Platform ) ) 1/17/2019 8:28 PM ELETE profitable business, care for your family, afford a home you call your call your you a afford home family, for care your business, profitable own and health care you can count on, retire with dignity and respect, and, most of all, your give the children kind of that allows education imagined. ever you than further even go and bigger even dream to them This has to be our North Star top ladders but aclass, middle from down, and provides that growing Platform Party Democratic 2012 the chance to make the most of their God-given potential. potential. God-given their of most the make to chance the We Democrats want Barack Obama that looks out for families in the new economy with health care, retirement security, and Investment help, especially in in bad our times. science. A countryladder of for opportunity all. see Democrats these as the pillars of a more competitive and fair economy that will allow all Platform Party Democratic 2008 today. overcome we must challenge the class is middle the of security That begins by restoring the basic values that made our country great, the rules the by plays and hard works who for everyone restoring and opportunity to find a job that pays the bills, turn an idea into a win, this Administration uses globalization as an excuse not to fight two jobs to pay the bills and the couple struggling to care for young children and aging parents, to the without tens health insurance of and millions the of workers who Americans shipped have overseas, seen too their many jobs Americans have been invisible current and President his party for to too long. The our people who do the neverAmericawork beenhave ininvisible Democratic theto It Party. again. them for real Dream American the make to time is We need a government that stands interests of and working people, willing gives to everyone work hard up for the hopes, values, and D OT N POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O At a time of massive income and wealth inequality, we believe believe we inequality, wealth and income massive of time a At the wealthiest Americans and largest corporations must pay 2016 Democratic Party Platform Party Democratic 2016 11 (D . 88 The more emphatic statements of quasi-populism in recent years have been been have years recent in quasi-populism of statements emphatic more The M K OCUMENT C Y 2018] 2018] Street. Wall of recklessness and greed the against fight will Democrats fairness, financial in risky trillions itself, gambling unto island be an cannot Street Wall huge and profits, that all instruments making the thinking while taxpayers will elites: economic to respect D in the platforms for in 2012 the and 2016,platforms where towardhints of antagonism not just 2016 the From text. the in appear also elites, economic but party, opposing the 40986 mqt_102-2 Sheet No. 54 Side A 01/29/2019 13:38:24 01/29/2019 A Side 54 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 54 Side B 01/29/2019 13:38:24 M K C Y note 73. 73. note giving trillionsgiving supra , ffs or outsourcing, it ffs it or outsourcing, back back to the top-down [102:387 [102:387 r policies osperity osperity that benefits us all. They feel feel out of reach. It is no wonder so Id. owning a home, having access to affordable and accesstohaving home, a owning 2012 Democratic Party Platform Party Democratic 2012 opponents believe we should go MARQUETTE LAW REVIEW LAW MARQUETTE Id. ) ) 1/17/2019 8:28 PM -tenth -tenth of one percent of Americans now own almost as much 89 ELETE D OT N O See also these comments from the 2016 Democratic Party Platform: Platform: Party Democratic 2016 the from comments these also See Democratsallbarriersbelievemustbreakwe thedown holdingAmericans back protections for families and consumers, let Wall Street write its own rules again, again, rules own its write Street Wall let consumers, and families for protections own. its on problems our all solve will market the wealthiest, the for taxes cut and They argue that if we help corporations layo through whether and necessary, means whatever by profits wealthy investors maximize their will automatically translate into jobs and pr would repeal health reform, turn administration Medicarepast the intoof a irresponsibility fiscal voucher of path program, same andthe follow stickingbillionairestowardsmillionaireswhile weightedand cuts tax indollars of quality quality childcare, retiring with dignity manyAmericans feellike thedeck stackedis against DemocraticThethem. Party believes that supporting workers through higher wages, workplace protections, will help rebuild the investments and and family, other work to balance policies percentwealthbottom90theascombined.These trends create problems beyond insulting our sense of basic earnings of fifth fairness. lowest the in families to born are who Social Children be. to mobility it believe is far lower earn to are than they than adults most as there remain to likely more times 10 than more are as much as those in the top fifth. Unless we invest in building a level playing built this country. Our economic policies of the last decade. They think that if we simply eliminate work hard and play by the rules, you can get ahead and stay ahead. The system is not working when we have a rigged economy in which ordinary Americans work longer hours for lower wages, whileallies most corporate new their income and and wealthlegislatures, goes governors, to Republican percent. one top the havelaunched attack after attack workeron and paycheck, to paycheck living are Americans many Too collectively. bargain classlife middle a hallmarksof their fair their fair share of taxes. will clawDemocrats back tax breaks for breaks tax eliminate overseas, jobs ship that companies for big oil and gas companies, and crack down on inversions and other methods responsibilities. We will sure make that our tax code rewards companies businesses that use make investments and provide jobs here to good-paying in the United States, not that businesses walk out on dodge America. their tax Id. 11 (D 89. Beyond Beyond this, the Jacksonian inclination to recognize the distinct hardships OCUMENT And And from the 2012 Democratic Platform:Party 408 408 D the contemporary Democratic Party toward an inclination to champion a variety variety a champion to inclination an toward Party Democratic contemporary the of other constituencies like racial minorities, women, and the LGBT of specific constituencies in American society has of course been extended in 40986 mqt_102-2 Sheet No. 54 Side B 01/29/2019 13:38:24 01/29/2019 B Side 54 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 55 Side A 01/29/2019 13:38:24 , 18. and and 2000 2000 409 409 (Aug. 17, 1992), 1992), 17, (Aug. note 22, at 16 supra supra ROJECT -class status quo that failed failed that quo status -class P (June 1, 2017), 2017), , 1, (June DSALL 1992 Democratic Party Platform ROSPECT (Aug. 12, 1996), 1996), 12, (Aug. Democrats Need to Be the Partyof and RESIDENCY .P .P M M ROJECT , A P note 20. 20. note Perhaps even more importantly more even Perhaps , A 92 supra 90 the Democrats allowed themselves to become the party of of party the become to themselves allowed Democrats the RESIDENCY Edsall, Edsall, .P M , A see also see the well-educated, the well-off, and the culturally liberal from the the from liberal culturally the and well-off, the well-educated, the The Contemporary Republican Party Party Republican The Contemporary ) ) 1/17/2019 8:28 PM B. Griffin,John Halpin & Teixeira,Ruy ELETE D Republican Party Platform of 1992 of Platform Party Republican , OT a status quo perceived to be elitist, disconnected exclusionary, and from the entire N POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O 11 (D 91 .See, e.g. .See, note 73. 73. note 92 90. Such themes can be found in each platform in 1992, 1996, 2000, 2004, 2008, 2012, and 2016 2016 and 2012, 2008, 2004, 2000, 1996, 1992, in 90. platform each in found be can themes Such 91. To be have sure, noted commentators that or a more-cultural experience- less-ideological, With respect to the modern-day Republican Party, we also see an interesting interesting an see also we Party, Republican modern-day the to respect With The The modern Democratic orientation to create a coalition out of these M K OCUMENT C Y Democrats will continue to lead the fight to ensure that no Americans suffer discrimination or http://www.presidency.ucsb.edu/ws/index.php?pid=25848[https://perma.cc/AA43-FL2G]; http://www.presidency.ucsb.edu/ws/index.php?pid=25847 [https://perma.cc/6AA6-DMNW]; http://www.presidency.ucsb.edu/ws/index.php?pid=25847 Republican Party Platformof 1996 Rightlyor wrongly, voters working-class white of drift the blunt to failed and color of voters working-class enough rally to [https://perma.cc/YC7B-6J3K]; the status quo range of working-class but concerns, from particularly those voters in white working-class areas. platforms, and with the exception of the 2004 Platform, a similar sentence can be found in each case: case: each in found be can sentence similar a Platform, 2004 of the exception the with and platforms, deprivation of rights on the basis of race, gender, language, national origin, religion, age, disability, 2018] 2018] the Democratic Party, where the focus is not just on economic hardship, but as well. concerns and dignity status D mix mix of Jacksonian and Republican Party Whig clearly carries ideological forward the elements. orientation. a pro-business and growth Whig emphasis on The economic contemporary for Working People—of All Races Edsall points to the former as the agenda-setters for the Party. E ideals; ideals; and an inclination to groups. favor the interests of certain disempowered disparate disparate segments has pressed it toward a task that the navigate as Jacksonians well: had how to to define an affiliative narrative out of such parts. disparate The elements of the contemporary Democratic response have at least some similarities too: a greater acceptance of moral relative and to cultural contemporary pluralism Republicans; greater emphasis on shared abstract http://prospect.org/article/democrats-need-be-party-and-working-people%E2%80%94-all-races http://prospect.org/article/democrats-need-be-party-and-working-people%E2%80%94-all-races supra Commentators note that among this subset contemporaryof Democrats, party affiliation has roots ina shared commitment to meritocracy, a relatively more international outlook, a focus on lifestyles on the two norms coasts, American etc. commentators Indeed, and have emphasized this more robust with engagement tenuous its with problem the of part as Democrats elite among commonality of point rural working- 40986 mqt_102-2 Sheet No. 55 Side A 01/29/2019 13:38:24 01/29/2019 A Side 55 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 55 Side B 01/29/2019 13:38:24 M K C Y 2004 2004 2016 2008 2012 the the oss the passagethe of [102:387 [102:387 amilies amilies to control their own Republican Party Platform of Republican Party Platform of ment tax credit; and credit;tax ment (July 18, 2016), 2016), 18, (July (July 31, 2000) 2000) 31, (July 2004), 30, (Aug. 2008), 1, (Sept. 2012), 27, (Aug. the the modern-day Republican Party ROJECT ROJECT ROJECT ROJECT ROJECT P P P P P earn. The test of economic policy is whether it 93 RESIDENCY RESIDENCY RESIDENCY RESIDENCY RESIDENCY MARQUETTE LAW REVIEW LAW MARQUETTE .P .P .P .P .P M M M M M , A , A , A , A , A ) ) 1/17/2019 8:28 PM , supra note 92. 92. note , supra ELETE jobsand economy long-termexpansionour Only of economic destiny. That come. to generations for reality a dream American the make can for called Bush President what do Congress the that demand we why is his enacting by opportunity and growth of era new a open January: last plan comprehensive for economic recovery, including a reduction in a credit tax $5,000 tax allowance; an tax; investment capital gains the first- for develop and research the permanent 1992 promotes economic growth and expands job opportunities. Lower taxes and an expanding economy depend on long term, consistent families families and our communities. Our party believes that we can best improve the standard of Americanpeople to act in living their own behalf by: cutting the near-record in America its size, and spending government reducing Americans; by on burden tax empowering the science, ofbenefits the usingjobs; creatingbudget; balancing the while technology and innovations to competitiveness in improve the global economy; both dramatically increasing the our number lives of families who can own their and own home; and unleashing the our world the on Americans individual of win to will and competitiveness people who work hard, take risks and build a better future for our note 92. D OT N O Nevertheless, to similar Democrats, contemporary the significance 94 11 (D .See supra supra .See 94. examples: some are Here 93 Their means of promoting economic growth do diverge from contemporary contemporary from diverge do growth economic promoting of means Their OCUMENT http://www.presidency.ucsb.edu/ws/index.php?pid=25849 [https://perma.cc/T8CN-MVYG]; http://www.presidency.ucsb.edu/ws/index.php?pid=25849 Republican Party Platform [https://perma.cc/5W6A-YT95]; http://www.presidency.ucsb.edu/ws/index.php?pid=25850 Republican Party Platform http://www.presidency.ucsb.edu/ws/index.php?pid=78545[https://perma.cc/VVZ4-V74H]; Republican Party Platform http://www.presidency.ucsb.edu/ws/index.php?pid=101961[https://perma.cc/GYU8-4V29]; Republican Party Platform http://www.presidency.ucsb.edu/ws/index.php?pid=117718[https://perma.cc/P3YK-MPPZ]. Democrats. While the above quotations from Democratic Party platforms focus focus platforms Party Democratic from quotations above the While Democrats. on items like education spending and other forms of stimulus focusspending, for the Republicans in the past several decades has been lowering rates of taxation. Republican Party Platform 410 410 similarly to contemporary Democrats emphasizes the familiar Whig theme of greater economic growth classes. all economic to benefit providing D 40986 mqt_102-2 Sheet No. 55 Side B 01/29/2019 13:38:24 01/29/2019 B Side 55 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 56 Side A 01/29/2019 13:38:24 411 411 note 92. note 92. 92. note one in five supra , supra , relief in a generation. By letting letting By generation. a in relief will no longer pay any federal income t 2004 Republican Party Platform Party Republican 2004 , supra note 92. 92. note , supra for an economics of inclusion that will let people people let will that inclusion of economics an for 2008 Republican Party Platform Replace the five current tax brackets with four lower ones, ensuring all taxpayers significant tax relief while targeting workers low-income toward especially it Help families by doubling the child tax credit making to $1,000, it available to more families,marriage penalty.and eliminating the Encourage entrepreneurship and growth by capping the top marginal rate, ending the death tax, and making permanent credit. Development and Research the education. and giving charitable Promote Foster capital investment and dangerously low personal savings rate. savings to boost toda ) ) 1/17/2019 8:28 PM o o o o o , supra note 92. 92. note , supra In 2001, President Bush and the Republican Congress worked ELETE Economic freedom expands the prosperity pie; government can only Republicansbelieve in the Great American Dream, with its economics Ownership gives citizens a vital stake in their communities and their reasonableRepublicanstaxes,advocatelower why is That up. it divide regulation, and smaller, smarter government. That agenda translates to more opportunity for more people. It way represents the economics the of is It achievements. become hopes which by path the inclusion, we will reach our goal of enabling everyone to have a chance to own, country. By expanding ownership, we will help turn economic growth growth economic turn help will we ownership, expanding By country. into lasting prosperity. As Republicans, we decisions about to how spend, save, and invest their trust own money. We people to make to people want We their income. control and own to individuals want havea tangible asset that can they build and rely on, making their own choices and directing their own future. Ownership should not be the tax sweeping most the pass to together money the of more keep owners business small and workers, families, they earn, they helped bring America from recession to a steadily 1996 change the tax system, to make it simpler, flatter, and fairer for keep more of what opportunity ladder. they earn and accelerate We movement therefore up enthusiastically the endorse the principles of Governor D OT N POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O prosperity, there are those who bear great burdens. That is why, with the tax cuts cuts tax the with why, is That burdens. great bear who those are there prosperity, we propose, while every taxpayer benefits, taxpaying sixfamilies with children million families Platform Party Republican 2000 This is more than justan economic program to promote growth and job creation. It is our blueprint grandchildren. It for is a call to conscience, the a reminder that, even kind in times of great of society we want for our children and 11 (D M K OCUMENT C Y 2018] 2018] D 40986 mqt_102-2 Sheet No. 56 Side A 01/29/2019 13:38:24 01/29/2019 A Side 56 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 56 Side B 01/29/2019 13:38:24 M K C Y RANSFORMED T supra ng our ng , rather than Getti The 2004 Platform 99 ehind. ehind. ONSERVATIVES C [102:387 [102:387 2012 Republican Party has the greatestthe impacthas on OW se be left b left be se :H ALK 18,145 (2007). T 17 note 92. 92. note note 92. 92. note 2016 Platform Party Republican how how much, at what rates, under what IGHT note 92. 92. note note 92. 92. note 92. note R Three exceptions deserve mention: the supra supra HE , , 98 OCIETY supra supra supra S ,T , , , who would otherwi would who MITH note 92. 92. note A. S CONOMIC MARQUETTE LAW REVIEW LAW MARQUETTE E supra and 2016. , 97 ARK ) ) 1/17/2019 8:28 PM Republicans consider the establishment of a pro-growth tax code a ELETE note 92. promise of a bett a of promise Platform growing economy that gives everyone a chance in life,an opportunity re and work, learn, to and and a half investment, years, created unprecedented have uncertainty, and stifled prolonged worst economic downturn since the Great the growth, Depression. Those policies destroyed jobs, halted relying on energetic and entrepreneurial Americans to economy rebuild from the the ground substantial promotes taxes up. Lowering development. economic impede Excessive taxation and economic regulation growth and President Republican a that, Knowing creation. and job and formation reducing regulation Congresswilljumpstart economican renewalthat creates opportunity, encourages business rewards work and and saving, unleashes the genius of productive the American people. Because the GOP is the Great Opportunity Party, this is our back pledge country to our workersget can without we jobs, together families hope: without without savings, neighborhoods and on track, expanding its bounty, renewing its faith, and fulfilling its ofinclusion, enabling everyone to have a chance own, to invest, build, last the three for which, policies of the opposite prosper. the is It and moral imperative. More government than raises any revenue other whom for and whom, from public circumstances, policy, the way economic growth and job creation, which translates into the level those foropportunity of entire the driving in factor important most the be will right system tax D 2012, 96 OT N O OCIETY INTO THE S Republican Party Platformof 1996 Platform Party Republican 2000 2012Platform Party Republican 2016Platform Party Republican Republican Party Platformof 1992 11 (D 2000, 95 REAT REAT 95. 96. 97. 98. 99. G OCUMENT 1992 Platform was a bit of an outlier within this span of years due substantive to the long, odd a devote to Party Republican the of choice Mark Smith has also noted the significance of economic themes in Republican Party platforms and, consistent with the argument here, notes the convergence of both parties on prioritizing economic M decades. recent in themes 412 412 these Platforms: Party Republican these in apparent also is growth economic of themes were in the leading sections 1996, of the Republican Party Platforms of D THE THE 40986 mqt_102-2 Sheet No. 56 Side B 01/29/2019 13:38:24 01/29/2019 B Side 56 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 57 Side A 01/29/2019 13:38:24 100 supra , 413 413 2004 Democratic Party Platform note 92. 92. note note 92. 92. note note 92; 92; note 92. note supra , supra supra supra , , , benefits of economic growth; discussion of economic economic of discussion growth; economic of benefits 102 and the fact that George W. Bush was the incumbent ) ) 1/17/2019 8:28 PM Further, Republican Party platforms have emphasized emphasized have platforms Party Republican Further, ELETE 103 D universal OT N POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O much like the 2004 Democratic Party Platform in the wake of 9/11. of wake the in Platform Party Democratic 2004 the like much 101 2004 Republican Party Platform Party Republican 2004 Platform Party Republican 2008 2016Platform Party Republican Republican Party Platformof 1992 Government Government cannot prosperity, can though create government limit orit. destroy is Prosperity the product of self-discipline, enterprise, saving and investment by individuals, but it is not an end in itself. Prosperity citizens and provides their the families means can by maintain which from their government, independence raise their children by of and and faith, their cooperation practice communities build their own values, respect. mutual 11 (D 100. 101. 102. 103. With respect to the contemporary Republican view on society, an As alluded to above, there is one respect in which modern Republican M K OCUMENT C Y in line with Whig the emphasize ideology, contemporary Republican economic views interesting blend of Jacksonian and Whig ideology appears here as well. More More well. as here appears ideology Whig and Jacksonian of blend interesting And then finally, likely due to deteriorating economic conditions run-upin the conditions economic due to deteriorating Andlikely finally, then to the 2008 election the War on Terror and government reform preceded the economy in the 2008 Platform. note 73. 2018] 2018] section D economic economic growth. The anti-statist orientation of modern-day Republicans on the economy during these years may be fairly represented by this comment in Platform: Party Republican the 2016 thought thought owes more to Jacksonian than Whig ideology: their relatively greater about in bringing action, state positive or intervention, state toward skepticism commitments to commitments banning U.S. flag desecration and English establishing as the segmentation segmentation by classes is largely absent. a by defined America unified a of notions toward inclination an of more Also, shown the Republican Party has common culture and common norms. For example, the Party has been more hospitable to certain constituencies such pressed as for relatively the more emphatic views Christian of moral Right uniformity in thatline with Whig have ideology. 40986 mqt_102-2 Sheet No. 57 Side A 01/29/2019 13:38:24 01/29/2019 A Side 57 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 57 Side B 01/29/2019 13:38:24 M K , , C Y , 2012 2008 their their mutual, and and Very much in the the in much Very Id. 107 . (June 1, 2017), 1, 2017), (June [102:387 [102:387 2016Platform Party Republican 2008 Republican Party Platform Party Republican 2008 2000 Republican Party Platform ROSPECT .P E Pluribus Unum M the the insurgent wings of both parties note 92; note 92; This is perhaps not surprising given given surprising not perhaps is This note 92; , A 106 supra supra supra supra , , supra , note 92. 92. note 105 supra , MARQUETTE LAW REVIEW LAW MARQUETTE In 2016, the Republican Party Platform included a section on English English on section a included Platform Party Republican the 2016, In . Every Republican Party platform from 1996 from platform Party Republican Every A Taleof Two Populisms Insurgent Democrats and Republicans Republicans and Democrats Insurgent ) ) 1/17/2019 8:28 PM with with benefits for all 104 C. note 104 ELETE D OT N 2012Platform Party Republican 2004 Republican Party Platform Party Republican 2004 O Shades of the Jacksonian war with the Second Bank of the United Republican Party Platformof 1996 diversityin the United States and territories, the including language. Immigrants should be encouraged to learn English. English is business, the commerce, accepted and schools our that language legal of integration, cultural proceedings, of and part as important, it also is It is force. cultural essential as a unifying provide better education in U.S. history motto, national and our to commitment a fostering civics for all children, thereby Republican Party Platform beenalways has newcomers,it For language. English our is unity our ofsign One the fastest route to prosperity in America. English English as empowers. the We support official language in our nation, while welcoming the ethnic The symbol of our unity, to which whatever we legislative all method pledge is most allegiance, feasible, is deny Old to judges activist by decisions Glory the condemn We shoulddesecration. against protection flag. be given legal By 11 (D .See supra supra .See .Id. .Id. .Id. 108 note 92; note 92; note 92. 92. note 105 104. 107 108 106. Molyneux, Guy Insurgent Insurgent Democrats have focused on Jacksonian themes of class-based OCUMENT emphatic embrace of Jacksonian themes. Jacksonian of embrace emphatic Jacksonian Jacksonian vein, economic disadvantage is linked to a clear segment polity. of the And here is the comment on English as the official language from the same platform: devotes space to these two issues. these to space devotes have have been defined by their common rejection of this appeal supra supra supra supra supra 414 414 national language. D converged If upon the contemporary Whiggish Democratic themes economic and growth in Republican focusing parties on have notably narratives of national as as the official language of the nation, but mentioned did in not mention the flag desecration, 1992 and neither Platform. Republican item Party Platform on flag desecration: is Here is a relatively representative statement from the 2008 States are not hard to see. to hard not States are the economic backdrop of present times, with inequality. economic increasing and growth economic a prolonged bout of modest segmentation in society, with emphasis elite. economic self-interested on a by polity the a of corruption clear oppositional theme: the http://prospect.org/article/tale-two-populisms[https://perma.cc/P2MX-5BMC]. 40986 mqt_102-2 Sheet No. 57 Side B 01/29/2019 13:38:24 01/29/2019 B Side 57 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 58 Side A 01/29/2019 13:38:24 , VOX , VOX - RNC

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111 what they cannot do Transcript note 106. ) ) 1/17/2019 8:28 PM populism: populism: The people have been betrayed by their Full rather than restricting powerful interests. restricting than rather politicians supra supra ELETE D OT N yneux, POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O political political interests. to special But tax goodies and other cuts, regressive billionaires. service protections for federal entirely almost consists agenda reform political His workers, spending. not limit political of telling Warren Warren speaks of the power enrich of themselves at economic the expense elites of average to people. further But in is government. by by former members officials of Congress and executive branch 11 (D .Id. .Id. .Id. .Id. 113. Mol 109 110 111 112. Plumer, Brad The The Republican insurgency, defined in significant part by Donald Trump Parallels Parallels to Jacksonianism are also not difficult to see here: modern-day M K OCUMENT C Y (July 22, 2016, 12:30 PM), https://www.vox.com/2016/7/21/12253426/donald-trump-acceptance- 12:30 22,2016, (July [https://perma.cc/WSS9-PHE3]. speech-transcript-republican-nomination-transcript himself, himself, shares several points of commonality with insurgent Democrats: an acknowledgment of widespread economic discontent, white white nationalism invokes the to toof groups the be favorites perceived identity Jacksonians; the antagonism white supremacy then prominent among 2018] 2018] D described described the populism pressed forth by Warren: Elizabeth of Senator Trump the populism from distinct in the 2016 campaign, as segmentation segmentation and fault lines in American society, narrative that places the blame for this discontent at the feet of clearly defined the for that narrative at blame places the this feet defined discontent of clearly segments of American society. perceived to be the cause of job loss for many working-class white Americans; Americans; white working-class many for loss job of cause the be to perceived the be to perceived are who groups, identity other and minorities racial entitled elites; and perhaps most significantly, Americans. deserving a more over corrupt groups these favored governing system that has Democratic insurgents, insurgents, of course, Democratic lies ineach would the blame.constituencies the latter, the of focus the were that elites economic self-serving the of place In primary targets for Republican insurgents are illegal immigrants, who are 40986 mqt_102-2 Sheet No. 58 Side A 01/29/2019 13:38:24 01/29/2019 A Side 58 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 58 Side B 01/29/2019 13:38:24 M K C Y such such 115 will will not though though perhaps DEOLOGY I [102:387 [102:387 ARTY P ONTEMPORARY C ,Apr.2017,at 21, 24. 24. 21, ,Apr.2017,at influence influence in recent years compared to narratives of MARQUETTE LAW REVIEW LAW MARQUETTE 114 EMOCRACY ) ) 1/17/2019 8:28 PM note 29. D ATTERNS IN ATTERNS ELETE , J. supra D OT IV. P N O 11 (D 114. Inskeep, 115. Having surveyed party platforms from the past several decades, two initial twodecades, initial the several party from surveyed past platforms Having However, However, and this leads to my second point, the contemporary focus on It is not obvious that populist appeals would necessarily have to be tied to OCUMENT national national economy, has held sway for both the contemporary Democratic and Republican parties. Most other to supporters core their beyond parties reach may that disposal their at narratives have found future- are it that Narratives useful supporters. tentative more be to may that constituencies have affiliative observations observations might be made: first, for much of the past three decades, a key component of Whig ideology, focused on the common benefit of a growing presidents presidents and political parties in midst the in even or the economy, stagnant relatively context a of conditions of In conditions. clearly troubled economic of economic crisis, successful parties have found it necessary to have at their disposal stories of commonality that depart from themes of universal uplift or universal benefits. Instead, successful narratives have encompassed either an emphasis on the special handicaps faced by articulation of a shared grievances worthy against some constituency, other subset or of the the electorate. These populist-oriented narratives Democratic Party, find of inspiration course, relatively more sporadic and in have had the significant Jacksonian- narratives narratives would not surprisingly hold a great deal of attraction for parties in contests. electoral national economic growth has proven to have significant limitations for periods of economic trouble. One could imagine the relationship in reverse: in in reverse: in relationship the imagine could One trouble. economic of periods universal economic growth. growth. economic universal 416 416 invokes government the Jacksonian to antipathy an class investor perceived to be the beneficiary of a corrupt government; and the modern-day antipathy to liberal and cultural elites speaks to the Jacksonian ethos emphasizing the D surprisingly hold great attraction for any political party seeking broader appeal. appeal. broader seeking party political any for attraction great hold surprisingly Against a background set of receded for long in the conditions late twentieth and early twenty-first where centuries, economic anxieties never Americans have experienced it, has framed the politics of the past generation. After seven consecutive seven After generation. past the of politics the framed experiencedhas it, Americanshave years of growth, median household income peaked in whatsoever.1999. In November 2016, moreSince than seven thenyears after the thereend of the hasGreat Recession, been median no growth The Populist Moment 40986 mqt_102-2 Sheet No. 58 Side B 01/29/2019 13:38:24 01/29/2019 B Side 58 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 59 Side A 01/29/2019 13:38:24 HE 132, T in EPORTS EPORTS , 1996: R 417 417 Candidates

NTERPRETATIONS the I

accepting the Democratic Democratic the accepting note 23, at 52; Gerald M. of

(Oct. 3, 1991), 1991), 3, (Oct. and who to blame for LECTION LECTION OF E He spoke of American American of spoke He supra 117 HE Tactics

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]. Similarly, in his speech speech his in Similarly, ]. 92: Announcement Speech ‘ LECTION OF E 1992 is a fitting illustration of the preceding HE T Campaign in in NTERPRETATIONS , I AnnouncementSpeech ) ) 1/17/2019 8:28 PM 1, 3 (Gerald M. Pomper ed., 1997); Packer, Packer, 1997); ed., Pomper M. (Gerald 3 1, ELETE EPORTS AND AND EPORTS D OT Introduction—Bill Introduction—Bill Clinton: Riding the Tiger dent Bill Clinton, N How How can you ask people who work or who are poor to POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O 1992: R behave behave responsibly, when they know that the biggest companies raised heads their own pay of in the last our decade by four times the percentage their workers' pay went up? Three times as much as their profits went up. When they ran their companies into the ground and their employees were on the street, what did they just wrong. That's life. cushy to a parachutes do? They bailed out with golden Opportunity Opportunity for all means making taxes fair. the I'm believe do I But not rich. being mind outwouldn't I rich. the to soak the Republicans 12 years, share. their fair For pay should rich have raised taxes on the middle class. relief. tax class middle It's time to give the I was raised to believe the American Dream was built on rewarding hard But work. we seen turn the have the on ethic American folks of its head. Washington Fortoo long those who play by the rulesand keep the faith have gotten theshaft, 11 (D The Presidential Election NTERPRETATIONS 116. F. Arterton, Christopher 117. Presi 50 (Gerald M. Pomper ed., ed., 1993). Pomper M. 50 (Gerald I M K LECTION OF OF LECTION OCUMENT C Y Pomper, Pomper, economic anxiety with a recession at hand and spoke aggressively of economic economic of aggressively spoke and hand at recession a with anxiety economic elites not paying their fair share. As he stated in his speech announcing candidacy: his presidential Dean Burnham, 144 E 2018] 2018] times of lackluster economic growth or even economic crisis, one think might that grow-the-pie narratives and angst such while However, would greatest. their at be have might angst and uncertainty particular appeal since economic anxiety is certainly present within the electorate at these times, it seemingly gets channeled in a different way: less toward an optimistic future and more toward a evaluation retrospective of what went wrong it. presidential successful of Consider taken at by the a strategies some glance decades. several the past over campaigns D AND AND point. Against a backdrop of economic malaise and tremendous concern about about concern tremendous and malaise economic of backdrop a Against point. the economy within the electorate, Bill Clinton emphasized populist themes during his successful campaign for the presidency. http://www.4president.org/speeches/billclinton1992announcement.htm Clinton, [hereinafter JNAT] [https://perma.cc/5JLZ- 40986 mqt_102-2 Sheet No. 59 Side A 01/29/2019 13:38:24 01/29/2019 A Side 59 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 59 Side B 01/29/2019 13:38:24 , , 27 M K HE T C Y in , e and the Little Little 23(2005). Beyond 92. 92. 114,118, 120, 126 Announcement Speech A and 21 OUSE H [102:387 [102:387 The Presidential Election Beyond the economy, he he economy, the Beyond SSESSMENT going to PT As it turned out, the switch HITE A 120 W 119 note 116, at191 94. 94. supra supra ISTORICAL , at 93 at supra bs bs instead of H Id. LINTON IN THE IRST EstablishmentConservative:PresidencyofGeorge The C ILL ILL :AF :B 2, 5; Packer, USH NTERPRETATIONS I W. B MARQUETTE LAW REVIEW LAW MARQUETTE TransformativeEconomic Policies: Cutting, Tax Stimuli, and Bailouts URVIVOR note note 116, at 14; Gerald M. Pomper, S ) ) 1/17/2019 8:28 PM (July 17, 1992), https://www.nytimes.com/1992/07/17/news/their-own- 1992), 17, (July In 1996, these policy choices, and a focus on the universal universal the on focus a and choices, policy these 1996, In EORGE HE note 21, at 1 G In Their Own Words; Transcript of Speech by Clinton Accepting Democratic 118 ,T supra EPORTS AND ELETE IMES D T acked by privileged private interests. It has forgotten who really pays the the pays really who forgotten has It interests. private privileged by acked supra OT ARRIS N Meanwhile, more and more of our best people are falling into poverty even even poverty into falling are people best our of more and more Meanwhile, Our people are pleading for change, but government is in the way. It has People are working harder than ever, spending less time with their children, children, their with time less spending ever, than harder working are People O 1996: R F. H , N.Y. the roof. roof. the week. a hours work 40 they though hij been return. in less you given and money your of more taken has It here. around bills and those who cut corners and cut deals have been rewarded. rewarded. been have deals cut and corners cut who those and working nights and weekends at their jo League or Scouts. And their incomes are still going down. Their taxes are still going up. And the costs of health care, housing and education are going through 11 (D RESIDENCY OF RESIDENCYOF OHN OHN P . 120. Patterson, T. James 118. Lizza, 119. Burnham, Ultimately, he rode a Ultimately, of wave change and desire for todiscontent eventual George George W. Bush won two in terms office a pressing of theme growing the HE T LECTION LECTION OF OCUMENT President Bill Clinton, Bill Clinton, President Nomination victory. Once in office, the economic populist themes of 1992 ultimately gave law-and- and like choices policy neoliberal reduction; deficit on focus a to way order themes and Democratic welfare Party doctrine like reform; health care and growth. economic reform and some promoting national staples of contemporary in (Julian E. Zelizer ed., 2010); Julian E. Zelizer, Zelizer, E. Julian 2010); ed., Zelizer E. (Julian economic policy, Harris also notes a split between more combative populist-minded aides, and those policy-making. in consensus to aspired who aides E 418 418 D DemocraticParty would place theon universal benefits economicof growth in 1996. For example, he supra words-transcript-speech-clinton-accepting-democratic-nomination.html words-transcript-speech-clinton-accepting-democratic-nomination.html GU7J]. [https://perma.cc/AM2M- more populist-oriented appeal, more wasto reassure sufficient his reelection against conditions. background these pie-universalism in his domestic policies Republican (and, roots, bypassing any rhetoric befitting leaning toward populism). Once his in establishment and reductions tax on on an emphasis goal with this forward he pressed office, deregulation, aimed at unleashing market forces. benefits of economic growth, played well against the backdrop of the relatively relatively the of backdrop the against well played growth, economic of benefits time. that by hold taken had that economy strong team team in his first term encompassed competing factions of deficit hawks and more populist-minded J aides. 40986 mqt_102-2 Sheet No. 59 Side B 01/29/2019 13:38:24 01/29/2019 B Side 59 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 60 Side A 01/29/2019 13:38:24 , 76 :A OHN OHN in ALIN , at 1, , P USH ? 45. ISTORICAL 73, 74 supra W. B H , Compassionate 419 419 AIN AND AIN AND ThePresidential C IRST Weatherford Weatherford In the face of of face the In C 289 (2015); J EORGE EORGE Rockman, Andrew 124 121 G -up to the 2008 ,M :AF , at 135, 140 135, at , SSESSMENT A USH OLITICS OLITICS NTERPRETATIONS supra P I , LINTONS C W. B In response, Obama and and Obama response, In 125 RESIDENCY OF Lewinsky scandal, and aided andaided scandal, Lewinsky ISTORICAL P H Minorities, Minorities, Multiculturalism, and the EORGE Public Opinion in the 2000 Election: The Election:2000The the PublicOpinionin EARS EARS IN 80; Kevin M. Kruse, HE G Y T 295, 295, 296 A. (Bert IRST EPORTS AND in , BAMA AND THE BAMA AND NTERPRETATIONS :AF I ORTY ORTY 54, 54, 279 F :O USH 2000: R note 120, at 129; Gerald M. Pomper, Pomper, M. Gerald 129; at 120, note ROSPECTS ROSPECTS Y stock tickers or scan the headlines headlines the scan or tickers stock P RESIDENCY OF W. B HANGE :M P supra supra C note 120, at 227, 230. 230. 227, at 120, note EPORTS AND HE Economic Crisis and Political Change: A New New Deal 72, 316 (2010). AME T EORGE EORGE LECTION OF supra G in at297. ELIEVER E ,G , , 271 2000: R ,B HE PPRAISALS AND note 22, at 51; Gary Gerstle, even with, or perhaps aided by, the extreme uncertainties uncertainties extreme the by, aided perhaps or with, even T ) ) 1/17/2019 8:28 PM :A in in ALPERIN , H IFETIME IFETIME see also see id. ELETE XELROD note 120,at252, 253 120,at252, note supra supra SSESSMENT L D A A , hen Weatherford, Weatherford, hen RESIDENCY OF LECTION OF this set of more universalist narratives, paired with a dose of anti- of dose a with paired narratives, universalist more of set this ARK OT P E een A. Frankovic & Monika L. McDermott, McDermott, L. Monika & Frankovic A. een N supra 122 RESIDENCY POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY at295; O HE HE , P AVID AVID &M DSALL T T this was the most salient campaign issue, and the Great Recession and and Recession Great the andissue, campaign salient most the was this ACE OF A 123 in the financial section to understand the seriousness of the 11 (D in in in R .Id. .Id. , , ISTORICAL BAMA BAMA H 121. E 123. D 122. Kathl 125 124. M. Step O M K EILEMANN SSESSMENT HE OCUMENT IRST C Y a Democratic Party still reeling from the Clinton from reeling still Party a Democratic by the benefit of a strong economy presidency, ahead of both of his contests for the AND AND THE (Gerald M. Pomper ed., 2001); Patterson, Patterson, 2001); ed., Pomper M. (Gerald Election 4. 4. H W. Bush A 2018] 2018] some with and benefit, drug prescription the education, on center political the to rights. gay for advocates and minorities racial toward outreach D F Ambivalent Electorate policy the off issues other most crowded crisis financial the of impacts continuing the Iraq continuing War, also showed the limits of the grow-the-pie narrative. W. election. statism, statism, provided a winning formula against Al Gore (narrowly) in 2000 and 2004 in Kerry John economic the But War. Iraqi subsequent the and attacks 9/11 the by up opened speech speech on the economy at Raleigh, North Carolina in June 2008, Obama did economy: American the modern in losers the out in pointing not hesitate the Democratic Party offered narratives on the economy that deployed some populist themes in 2008, in though only a measured way. For example, in his Barack Obama took advantage of this in 2008. Deteriorating economic economic Deteriorating 2008. in this of advantage took Obama Barack conditions created a wave of discontent within the electorate. Rudalevige & Colin Campbell eds., 2012). Conservatism: Religion in the Age of George W. Bush T Presidency of George W. Bush 40986 mqt_102-2 Sheet No. 60 Side A 01/29/2019 13:38:24 01/29/2019 A Side 60 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 60 Side B 01/29/2019 13:38:24 M K C Y No doubt, this this doubt, No Instead, (June 9, 2008), 2008), 9, (June 127 not when the IMES [102:387 [102:387 trillions trillions of dollars in , N.Y. T You just have to go to MARQUETTE LAW REVIEW LAW MARQUETTE Or talk to the worker I met in Indiana who ) ) 1/17/2019 8:28 PM 128 ELETE D 126 OT N O Obama Delivers Speech on Economy giveaways giveaways that conservative. proved neither markets, the markets compassionate have gates of Washington are thrown open to hardly high-priced lobbyists been nor free who rig the rules of the road special interest favors and corporate and loopholes. As a result of riddle our tax code with such special-interest driven policies and lax regulation, we homeowners million two to up leave could that crisis housing a facing foreclosure has economy. shaken confidence in the entire Or one. new a for look and around drive to gas the afford even after shift night the works who Iowa from woman the to listen worked at the same plant his father worked at for thirty years until they moved it to Mexico and made the workers actually pack up the equipment themselves so they could China. send it to [what George Bush called] the Ownership Society, little more than but a worn dogma that says we i should give more to those at the top and hope that their down good fortune to trickles the hardworking many. For and care, ineducation, health investments President sacrificed eight long years, our big for breaks tax of altar the on infrastructure and energy, and corporations and wealthy CEOs 11 (D .Id. .Id. .Id. 126. 127 128 OCUMENT 420 420 D was an appealing tactic given his own status as a non-incumbent candidate and and candidate non-incumbent a as status own his given tactic appealing an was was junior due The as astatus Senator. crisis of cause relatively the economic to: economically privileged Similarly, and to the he political establishment. had little hesitation in attributing these problems to the http://www.nytimes.com/2008/06/09/us/politics/09transcript-obama.html 65U5]. [https://perma.cc/8XWF- 40986 mqt_102-2 Sheet No. 60 Side B 01/29/2019 13:38:24 01/29/2019 B Side 60 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 61 Side A 01/29/2019 13:38:24 - OB OB B AVID AVID D 421 421 2012, at 30, 52 52 30, at 2012, note 124, at 301 HANGE supra supra C It was afrustrating 132 AME :G 214 (2011). 133 OWN Weatherford, Weatherford, D BAMA BAMA O with with just a third of voters see also OUBLE ,D ...... ARACK B Still, these quasi-populist notes were a note 131, at 288. note 126; 126; note 130 ISE OF EILEMANN R supra supra supra H 92 (2013). (2013). 92 , , at430. OHN IFE IFE AND so itwould be difficult to claim him as anything like an OLITICS L &J P 129 ) ) 1/17/2019 8:28 PM EILEMANN HE a place where jobs are there for the willing; where hard work is :T &H see also id. id. also see ELETE note 21, at 4. Bob Woodward quotes David Plouffe in saying the following about following the saying in Plouffe David quotes Woodward Bob 4. at 21, note RICE OF OF RICE ALPERIN D P H OT RIDGE N HE B

POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY supra supra at288; O ARK ,T ALPERIN HE 131 but steady improvement on the jobs front that would let them run an updated ve campaign. Instead they had been handed a of succession fits, were jobs reports in which respectable dawns, false starts, and followed by anemic widespread, free-floating ones, angst creating saying the in economy was improving and two-thirds believing the track. wrong the on remained electorate the country a rewarded with a decent living; where no matter how much you start with or where where or with start you much how matter no where living; decent a with rewarded you come from or who your parents are, canyou make itif try.you But we also believe in an America where unrivaled prosperity brings boundless boundless brings prosperity unrivaled where in an America But believe also we opportunity 11 (D ,T .Id. .Id. 131. M 129. paragraphs: concluding the in comment this offered also 130. he example, for speech, same the In 132. H 133 Faced Faced with these less than ideal economic conditions, his presidential Themes Themes of unity and optimism have also long been core components of M K OODWARD EMNICK OCUMENT C Y up to the 2012 of benefits the and universalism election on notes Whiggish some with identified paired economy, unfair losers and unfair winners in the campaign once campaign again populist themes folded into its message. line In with the context to be running as an incumbent. As Halperin and Heilemann note: note: Heilemann and As Halperin incumbent. an as running to be context Likewise, in the run-up to the 2012 election, Obama was faced with an an with faced was Obama election, 2012 the to run-up the in Likewise, improving. slightly to stagnant from veered that economy pattern persisted: he sounded some minor notes of populism, but as perhaps foreshadowed by his campaign, his endorsement of those tentative. themes remained Obama Delivers Speech on Economy 03. W R 2018] 2018] D exemplar exemplar of American populism. was well- way: that he held generally progressive views on the political and racial controversies on campus, but never took the lead. He always used language of reconciliation rat (2014); Lizza, Lizza, (2014); 40986 mqt_102-2 Sheet No. 61 Side A 01/29/2019 13:38:24 01/29/2019 A Side 61 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 61 Side B 01/29/2019 13:38:24

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note 134. , G , Remarks by the President on the Economy in U.S. Economic Confidence Surges After Election Full ]; supra , getting worse); (June 14, 2012), https://www.washingtonpost.com/politics/full- 2012), 14, (June In his speech at Osawatomie, Kansas in late 2011, 2011, late in Kansas Osawatomie, at speech his In MARQUETTE LAW REVIEW LAW MARQUETTE 134 OST .P ) ) 1/17/2019 8:28 PM e economy was ASH (Dec. 6, 2011), https://obamawhitehouse.archives.gov/the-press- 2011), 6, (Dec. ELETE In that context, Hillary Clinton attempted to pull from Remarks by the President , President Barack Obama, D , W Remarks by the President 136 OT N O embraced embraced policies that favor hedge funds and other big And yes, we know, too many special interests with too many lobbyists have stood in the way of progress while protecting few. privileged the of the perks welfare. welfare. decades, but that benefits the middle class, and those fighting as a whole. economy and the class, the middle into to get 11 (D .See, e.g. .See, (Nov. 15, 2016), http://news.gallup.com/poll/197474/economic-confidence-surges- 2016), 15, (Nov. 136. Justin McCarthy & Jeffrey M. Jones, 135. Obama, 134 On the eve of the 2016 election, economic conditions were perceived as As with winning presidential campaigns in 1992 and 2012, the winning ALLUP OCUMENT So recovering from the crisis of 2008 has always been the first and most urgent order of business, but erosion of middle-classjobs and middle- G being being stuck in improvement. a similar place: from stagnant to glimpses of small party party and candidate had to offer some outlet electorate. for economic anxieties in the Obama offered the following succinct paragraph encapsulating all three themes: themes: three all encapsulating paragraph succinct following the offered Obama election.aspx [https://perma.cc/3K2Z-A7TM] (noting that(noting [https://perma.cc/3K2Z-A7TM] election.aspx pre-election, 81% of and Republicans 35% of Democrats believed th Message Weak a and Trust Economy, The Election: transcript-of-obamas-speech-on-the-economy-in-cleveland- ohio/2012/06/14/gJQAdY10cV_story.html?utm_term=.f22284b6b411 QD7R]. pres his preceded Notably, long that problem as systemic a the of part as incumbentconditions candidate, [https://perma.cc/6HNZ- Obama also had to frame then-present economic behind. further and further fell class middle the and soaring inequality were symptoms of the malaise fe malaise the of symptoms were inequality soaring and 422 422 broad growth. economic D Osawatomie, office/2011/12/06/remarks-president-economy-osawatomie-kansas Kansas Obama, [hereinafter [https://perma.cc/V2FR-EDJZ] in Cleveland, Ohio with some optimistic themes about universal economic growth. With respect to the former, Clinton sounded criticism of corporations, some economic elites, and Jacksonian those politicians who support notes in these interests: offering some 40986 mqt_102-2 Sheet No. 61 Side B 01/29/2019 13:38:24 01/29/2019 B Side 61 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 62 Side A 01/29/2019 13:38:24

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s ’ OT N We We should also add a new tax on multi-millionaires, crack down on tax Not just for the rich or the well-connected, not just for POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O Clinton at those just works for Not everyone. sure our economy make top. the people living in some parts of certain backgrounds the and not others, country I mean everyone. or And I people from us there. get to a plan have I a plan, have Congress give more tax breaks create to actually will thateducation and hedge energy cleanmanufacturing in investments more good jobs. them to influential shareholders, instead of making long-term raising investments wages, in training and research. Or when governors and legislatures use every trick in the book to weaken unions and make it harder for Americans to organize themselves for better wages and benefits. And you ask yourself, well, wait a minute, Why did the richest the Americans biggest and corporations get away with manipulating the tax code so they do? pay you than rates lower shareholders shareholders and top management value. long-term at their even and communities workers, the expense of their share prices and quarterly earnings. Now, a recent survey of corporate executives found that more than half, when asked, would hold off making a maybe successful in their workers or plant and long-term equipment or research, if investment, report. earnings the next in a target missing it meant And And Wall Street, corporations, and the super-rich, should finally pay their fair millionaires should not be able to pay a lower tax rate than their secretaries. gaming by corporations and close the carried interest loophole years. for advocated , , NPR (June 28, 2016, 2:50 PM), https://www.npr.org/2016/06/28/483870735/fact-check- 11 (D (June (June 22, 2016), http://time.com/4378959/hillary-clinton-raleigh-speech-economy/

a theme very much in line with contemporary Democratic Party themes: Party Democratic with contemporary line in much very theme a 137. Reilly, Katie M K IME OCUMENT C Y https://www.newsweek.com/hillary-clinton-full-transcript-economic-speech-489602 Michigan): Warren, in (speech [https://perma.cc/MJ8E-W336] Scott Horsley, Tamara Keith & Danielle Kurtzleben, Annotated clintons-speech-on-the-economy-annotated [https://perma.cc/Y6CA-TUQ5] (speech in Ohio): Cincinatti, all T [https://perma.cc/N7J3-ZRM9]. For other, similar examples, see Michele Gorman, Hillary 2018] 2018] larger vision Still, this solicitude for of the working and middle-class was a nestled within a growing economy working toward the common benefit of D 40986 mqt_102-2 Sheet No. 62 Side A 01/29/2019 13:38:24 01/29/2019 A Side 62 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 62 Side B 01/29/2019 13:38:24

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Transcript: MARQUETTE LAW REVIEW LAW MARQUETTE ) ) 1/17/2019 8:28 PM 138 note 137. For other examples, see Gorman, ELETE D supra OT N It is not moral, it is not acceptable, and it is not sustainable sustainable not is it and acceptable, not is it moral, not is It Or that the top 1 percent in recent years has earned 85 seven-were we where remembering about is election This O strong, strong, fair and lasting. increases upward mobility, that reaches Growth into every corner that of our country. reduces inequality, recklessness recklessness and illegal on behavior Wall Street our economy was in the we were. where That's Depression. worst economic downturn since the Great This election is about ending the grotesque level of income and income of level grotesque the ending about is election This today! in America wealth inequality that the top 1/10th of 1 percent 90 percent. now bottom the as wealth owns almost as much percent of all new income. That is unacceptable. That must change. and-a-half years ago when President Obama came into office after eight years of Republican trickle-down economics. The Republicans want us to forget that as a result of the greed, Many of my Republican colleagues believe that government is is government that believe colleagues Republican my of Many 11 (D 138. Reilly, 139. Staff, Post Washington (July 26, 2016), https://www.washingtonpost.com/news/post-politics/wp/2016/07/26/transcript- 2016), 26, (July OCUMENT OST nomination-acceptance-speech/?utm_term=.d3cffd779ca1 nomination-acceptance-speech/?utm_term=.d3cffd779ca1 [https://perma.cc/3S5Y- needs every one of us to lend our energy, our talents, our ambition stronger. to making our nation better and can can seem like a zero sum, when you are for competing a job, a or promotion, a if contract someone wins and someone loses, but that is not the full picture. If you s Presidential https://www.washingtonpost.com/news/the-fix/wp/2016/07/28/here-is-hillary-clintons-presidential- Nomination Acceptance Speech 424 424 D P bernie-sanderss-full-speech-at-the-2016-dnc/?utm_term=.16c0de0755af bernie-sanderss-full-speech-at-the-2016-dnc/?utm_term=.16c0de0755af VQTS]. [https://perma.cc/7L3R- is not hard to find, and yet the distinctions are also apparent too. By way of contrast, Sanders pulled no punches in taking the Jacksonian rhetoric of class further than Obama and statements Hillary of immorality Clinton, and wrapping illegality. it stated: he Convention, National In within his categorical speech at the Democratic 40986 mqt_102-2 Sheet No. 62 Side B 01/29/2019 13:38:24 01/29/2019 B Side 62 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 63 Side A 01/29/2019 13:38:24 (June (June OOMED OOMED or the the or D S 141 OLITCO 425 425 possibly due due possibly , P nders-speech-in- LINTON C onomiccritiques to structural ILLARY H or possibly because of her NSIDE 142 :I 140 HATTERED , S whether whether it is Social Security, ARNES P note 138. 138. note MIE MIE &A supra note 112. ) ) 1/17/2019 8:28 PM Transcript: Bernie Sanders Speech in Burlington, Vermont 144 LLEN LLEN supra supra Bump, Bump, A ELETE D OT N 143 Plumer, POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O ONATHAN ONATHAN 223, 342 (2017). the enemy, that we need to eviscerate and privatize virtually all all virtually privatize and eviscerate to need we that enemy, the aspects education. public of or Service Postal the EPA, VA, the Medicare, government I strongly disagree. government must play In planet. our us and all of protecting an a enormously important democratic role civilized in society, because they have total control over every does. single thing She is she their puppet, and they change. pull never will the things that strings. is message Clinton's Hillary That why is ever. Never Big business, elite media and major donors are lining up behind behind up lining are donors major and media elite business, Big keep will she know they because opponent my of campaign the our rigged system in place. They are throwing money at her 11 (D .Id. .Id. .See 141.ec her link to had Clinton Hillary 2012, in Obama like Hence, 140. Staff, Politico 143 144 142. J Finally, consider Don consider Finally, More More substantively, he put forth a stark vision of a failing American However, However, if a proved narrative to helpful Obama in grow-the-pie securing M K AMPAIGN OCUMENT C Y economy economy that he proposed to turn around through tougher negotiation in trade and industry, of regulation the in reductions code, tax the of reform agreements, reduced credibility sounding populist themes due to her own ties to Wall Street Street Wall to ties own her to due themes populist sounding credibility reduced (and the presence of an insurgent candidate and critic like Sanders within her own party). C 2018] 2018] D office. Nearly 15 million new private sector jobs, 20 million more Americans ever. withyear best healthits had insurance,just that industry auto an and still facing deep-seated problems that developed long before the recession and have stayed with us 16, 16, 2016, 8:30 [https://perma.cc/9XHF-7T3J]. PM), burlington-vermont-224465 https://www.politico.com/story/2016/06/transcript-bernie-sa persistent persistent problem of her email controversies, the win in 2012, it was not sufficient for Hillary Clinton in 2016 in Clinton Hillary for sufficient not was it 2012, in win the a to of or strengths as candidate, campaign to having the obstacle her different with several more years of stagnant growth in front of the electorate, sole of example a those president among Republican 1992 from to the present who successfully deployed populist themes Echoing Jacksonian toward rhetoric, he sought to paint Hillary a Clinton as the tool of presidential victory. special interests: 40986 mqt_102-2 Sheet No. 63 Side A 01/29/2019 13:38:24 01/29/2019 A Side 63 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 63 Side B 01/29/2019 13:38:24

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146 , W supra Read 148 MARQUETTE LAW REVIEW LAW MARQUETTE 150 note 146. ) ) 1/17/2019 8:28 PM Through these means, Trump claimed that economic growth growth economic that claimed Trump means, these Through supra supra ELETE D 145 ; Tessa Berenson, OT N The federal register is now over 80,000 pages long. As the the As long. pages 80,000 over now is register federal The O Bump, Phillips & Borchers, Borchers, & Phillips Bump, American American consumers, and a economy. American massive lead weight on the It is estimated economy as much as that $2 trillion dollars a year current yours. cities like of out overregulation straight taken is costing our to close issued has Obama President noted, Journal Street Wall four hundred new major regulations since taking office, each more. or million $100 of economy American the to cost a with In 2015 alone, the Obama Administration unilaterally issued more than 2,000 new regulations I am proposing an across especially for the middle board income Americans. incomepay will rich The jobs. paying This good tax really and new will of millions reduction,lead to their fair share, but no one will pay so much that it todestroys compete. nation as a ability our undermines jobs or 11 (D .Id. .Id. .Id. .Id. .Id. .Seeid. . 148 149 150. Berenson, 145 146 147 OCUMENT conditions was the federal ingovernment many respects. On trade and policy noted: he industry, of regulation federal the Jacksonian rhetoric in two more respects: first, he did give rhetorical lip-service lip-service rhetorical give did he first, respects: more two in rhetoric Jacksonian benefit particularly would that reform tax promising segmentation, economic to class: the middle and job creation would follow. loss of American wealth. of American loss (Sept. (Sept. Borchers, & Callum Phillips Amber Bump, Philip [https://perma.cc/H2EZ-ELQ5]; 15, Economic 2016), Speech, http://time.com/4495507/donald-trump-economy-speech-transcript/ Annotated 426 426 reform. energy D https://www.washingtonpost.com/news/the-fix/wp/2016/08/08/donald-trumps-economic-speech- [https://perma.cc/MY6Y-EFHF]. annotated/?utm_term=.4595f1ed02f8 40986 mqt_102-2 Sheet No. 63 Side B 01/29/2019 13:38:24 01/29/2019 B Side 63 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 64 Side A 01/29/2019 13:38:24 its its 151 individuals individuals 427 427 and the many how ONSTITUTIONAL ONSTITUTIONAL C and its commitment to gun gun to commitment its and 152 TATEMENTS ON S ARTY ARTY IDELITY P F within party ideologies have played some role role some played have ideologies party within ATTERNS IN ATTERNS P ) ) 1/17/2019 8:28 PM ELETE D OT note 92. 92. note N POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O Supra 11 (D .Id. ONTEMPORARY ONTEMPORARY 151. 152 As was the case with the more general discussion of contemporary party It It seems quite likely that the reflection of these concepts The The preceding Parts have underscored two distinct dichotomies which, Still, constitutional fidelity is directly implicated in party ideology in an M K OCUMENT C Y V. C issues that have enjoyed the most consistent mention in its party platforms from from platforms party its in mention consistent most the enjoyed have that issues 1992 to 2016 have arguably been its opposition to abortion rights; should show fidelity to the Constitution. Constitution. the to fidelity show should platforms in Part III, we likewise find that within Republican and Democratic party statements that directly reference for elements Whig theand Jacksonian of synthesis and Constitution blend interesting an in is there these platforms, both parties. Beginning with the Republicans, the constitutionally related of emphasis on federal governmental statism vs. federal governmental anti- statism. when combined, allow for a number of interesting ideological syntheses. The first is a conceptual dichotomy speaking to the actual and American desired society: nature of hence we see within party ideologies varying The vs. non-segmented. assegmented society degreesAmerican emphasis viewing on of the of role desired and actual the to speaking dichotomy conceptual a is second degrees varying encompassed have ideologies party hence government: federal potential combinations of them of combinations potential 2018] 2018] D commitment to protecting private property rights; property private protecting to commitment additional, and even more direct way, and that is the focus of this Part. Within Within Part. this of focus the is that and way, direct more even and additional, party platforms and within the statements of party leaders and members, we might also identify elements of party that ideology incorporatedirectly claims statements, these within Thus demands. or requires Constitution the what about we find party ideologies encompassing statements about in shoring up popular fidelity to the broader constitutional system over time. Within these concepts, party elites historically have authentic an conceptual extraordinarily feeling grammar be may expansive electorate the to of majority a and that speak discontents and worries, desires, to the array of hopes, for prolonged periods of time, and in the midst of very diverse circumstances. The deployment of these concepts by astute party leaders supplies reasons for broad portions of the electorate to remain invested in a constitutional system hopes. future and concerns current their to speak yet may or is that 40986 mqt_102-2 Sheet No. 64 Side A 01/29/2019 13:38:24 01/29/2019 A Side 64 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 64 Side B 01/29/2019 13:38:24 M K 156 C Y That is, they avoid 155 [102:387 [102:387 It is not surprising that the the that surprising not is It 154 particularly particularly in its discussion of the note 92. 92. note in highlighting the threats each of these these of each threats the highlighting in supra and , 157 . MARQUETTE LAW REVIEW LAW MARQUETTE McDonald ) ) 1/17/2019 8:28 PM and ELETE D OT N We salute the Republican Congress for defending the right right the defending for Congress Republican the salute We its discussion of abortion, private property, and guns is reoriented O Heller all of which were mentioned in the 1992, 1996, 2000, 2004, 2008, 2016Platform Party Republican in natural natural inalienable right that predates the Constitution and is secured by the Second Amendment. Lawful gun ownership enables Americans to exercise their and their ones, God-given loved their right homes, of their of self- safety the for defense communities. to keep and bear installing a arms new liberal majority on by the Supreme Court. preventing The would justices anti-gun additional of the Court the to confirmation President from eviscerate the Second Amendment's fundamental protections. are elsewhere and capital nation's the in officials local Already, defying the Court's decisions upholding an right individual to bear arms as affirmed by the Supreme Court We uphold the right of individuals to keep and bear arms, a 11 (D .See id. id. .Id. id. .Id. .See .See 153 153 154 155 156 157. Note for example this statement Note in for on the statement this example 2016 Party Platform Republican OCUMENT avoiding avoiding a focus on economy segmentation in a way that avoids too explicit an endorsement of Republican segmentation: of result the being as issues these about talking avoid generally platforms Party conflict between competing constituencies in society. constituencies. rights pro-gun or rights pro-property or pro-life about talking contemporary Republican Party has oriented itself toward appealing to pro-life, pro-life, to appealing toward itself oriented has Party Republican contemporary But, composition. its given constituencies rights pro-gun and market-oriented, in both appealing to these groups toolkit Jacksonian the from tactic a deploying are Republicans the faces, groups constituencies some where polity American the in segmentation highlighting of others. than threat or disadvantage greater face 2012, and 2016 platforms at least once. Rather, Rather, the rhetorical focus in these platforms is on the constitutional right at stake, which places a bit of a universalist gloss upon arguments constitutional constituencies. distinct to speaking on focused clearly very are otherwise that rights: gun 428 428 rights D 40986 mqt_102-2 Sheet No. 64 Side B 01/29/2019 13:38:24 01/29/2019 B Side 64 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 65 Side A 01/29/2019 13:38:24 supra To be be To , supra , 160 429 429 decision decision Kelo 161 2008 Republican Party Platform within within their jurisdiction 2016Platform Party Republican in 2005: 2005: in Kelo note 92; note 92. 92. note note 92. 92. note 158 note 92; supra supra supra , , , supra supra , 159 ) ) 1/17/2019 8:28 PM ELETE D OT N Kelo v. City of New London of v. City Kelo POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O 2016Platform Party Republican Platform Party Republican 2004 2016Platform Party Republican protections apply to children before birth. before to children apply protections The The Constitution's guarantee that no one can "be deprived of of Declaration the echoes deliberately property" or liberty life, Independence's proclamation that "all" are "endowed Creator" by with their the inalienable right to life. assert Accordingly, the we sanctity of human life infringed. be cannot and which life to right affirm fundamental a that has child the unborn We support a human life amendment to the Constitution and legislation to make clear that the Fourteenth Amendment's also which for purpose," thus"public allowed the government to seize it for transfer to private already notdevelopers have that or legislatures state any on other call We entities. private done so to nullify the impact of that declaring amendments constitutional state or legislation by and we use, public true for only be taken may property private join House Republicans in supporting the Act. Protection Rights Private Property The The Framers of our government experience, that when private property is knew, not secure, freedom from history and is at risk. That is why property private the Fifth Amendment declares that compensation." undermined this safeguard by The allowing local governments to use, seize orfor home land public a but person's not vital only Supreme Court's 11 (D 2012Platform Party Republican 158. (2005). 469 U.S. 545 159. 160. 161. Likewise, note the focus on the constitutional right at stake in this comment comment this in stake at right constitutional the on focus the note Likewise, The emphasis on the constitutional right at stake has also been important in in important been also has stake at right constitutional the on emphasis The M K OCUMENT C Y on property rights from the 2016 Platform, referencing the in decision latter latter two inissues appealing again toof segments theand polity, in appealing to the need for federal governmental intervention against its otherwise anti-statist orientation. The here, rhetorical move however, is to focus on squarely the constitutional rights involved and ignore abortion: on statement the of portion a was this Platform, the rest. Hence in the 2016 sure, the Republican orientation toward universalism is complicated on these note 92; note 92. 2018] 2018] D the the Republican Party statements on abortion and 2016). to 2004 gay from platforms marriage the in (the mention consistent earned latter which of 40986 mqt_102-2 Sheet No. 65 Side A 01/29/2019 13:38:24 01/29/2019 A Side 65 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 65 Side B 01/29/2019 13:38:24 M K , , C Y

, 2016 163 2012. 2012. Within 164 limited 165 We oppose the use of Similarly, the Platform the Platform Similarly, [102:387 [102:387 162 2016Platform Party Republican 2008 Republican Party Platform Party Republican 2008 2000 Republican Party Platform must be preserved note 92; note 92; note 92; note 92. 92. note For For that as reason, elsewhere explained supra supra supra supra , , supra , supra , note 92. 92. note MARQUETTE LAW REVIEW LAW MARQUETTE supra , ) ) 1/17/2019 8:28 PM ELETE covenant. enduring our as but document, flexible We believe government,separation ofpowers, federalism, our and the rights constitutional system of the people protect the God-given, inalienable rights of its citizens. citizens. its of rights inalienable God-given, the protect These constitutional rights are not negotiable for any American. We affirm that all legislation, regulation, D OT N 2004 Republican Party Platform Party Republican 2004 2012Platform Party Republican A similar line has appeared in every Republican Platform from at least 1992 least at from Platform Republican every in appeared has line similar A O Republican Party Platformof 1996 2016Platform Party Republican Id. Id. 11 (D note 92; note 92; note 92. 92. note 163. governmental federal about concern a to position this linked however, also, Platform, The 164. 165. 162. Finally, Finally, Republican Party platforms in 1996, 2000, 2004, 2008, 2012, and Notwithstanding Notwithstanding this appeal to federal governmental intervention, the OCUMENT We oppose government discrimination against businesses or entities which decline to sell items or items sellto decline which or entities against businesses discrimination government oppose We statism with respect to enforcing anti-discrimination principles to anti-gay marriage individuals. individuals. marriage anti-gay to principles anti-discrimination enforcing to respect with statism Republican Party Platform supra supra supra 2016 also included explicit statements judiciary should about best demonstrate its the fidelity to judiciary, the Constitution. and these how statements, the we Party. Republican see another Jacksonian influence in the Republican Party modern oriented as the linked have platforms these time, the the of Most Constitution. the of usurpers defender of originalism democracy of endorsement an with activism against judicial about concern Republican judicial expansive notably was Platform 2016 The method. interpretative proper the as on this topic method: interpretative and contained two explicit statements on constitutional 430 430 Platform did include this meek nod to anti- public funds to perform or promote abortion or Planned Parenthood, so long to as they provide or fund refer for elective abortions organizations, or like said this about gay m marriage of redefinition Court's Supreme the accept not do we platform, this in and we urge its ove control returning amendment constitutional reversal, whether through judicial reconsideration or a D 40986 mqt_102-2 Sheet No. 65 Side B 01/29/2019 13:38:24 01/29/2019 B Side 65 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 66 Side A 01/29/2019 13:38:24 599, 599, 601 431 431 Y OL .P UB .J.L.&P 167 EO , 2 G nguished record leaves doubtaboutleaves record nguished 166 note 92. 92. note 92. note The New Originalism supra supra , , ) ) 1/17/2019 8:28 PM ELETE and official actions must conform to the Constitution's Constitution's the to conform must actions official and original meaning as understood at the time the D OT N We We oppose stealth nominations to the federal bench, and especially to the POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O Note, however, that in the 2004 and 2008 Republican Party platforms, Republicans Republicans platforms, Party Republican 2008 and 2004 the in that however, Note, Much like the Jacksonian views on the economy and society that We We believe that President the founded. was nation our which on self-proclaimed ideals democratic the supremacy to antithetical of these judicial activists is Bush has established a solid demonstrated record respect of for nominees. thethose nominating supported Constitutionstrongly have and only Senate the the in Republicans judges democratic and republic, processes who of our have Republican Republican president will conservative restore majority that to will follow the the laws. and our text of the Constitution meaning Court and original a strong Only Only a Republican president will appoint judges who respect the rule to right inalienable the of including Independence, of Declaration law expressed life within and the laws of the nature and nature's God, as Constitution Justice did Antonin Scalia. the We are facing a late national crisis in and our .. . In judiciary. tandem with a Republican Senate, a new self-government, self-government, sanction federal powers that violate jurisprudence. American into our law foreign liberties, or inject distiandclear a lackof Court,whose Supreme their respect for the Constitution or their intellectual fortitude. Nominees must have a record of fidelity to the U.S. Constitution and the rule of law. Republicans will insist on the appointment of constitutionalist judges, men and 11 (D .Id. .Id. 168 168. Keith E. Whittington, 166 167 And it contained the following longer comment on the judiciary: judiciary: on the comment longer following the contained And it M K OCUMENT C Y raised the concern about judicial activism without explicitly invoking originalism. From the 2004 2004 the From originalism. invoking explicitly without activism judicial about concern the raised Republican Party platform: found their inspiration more foundin more their inspiration the present and and past less in to appealing an unknown future, Republican rhetoric on constitutional interpretative method and past. the present to orientation temporal similar has a Showing The clear point of emphasis fidelity within these statements is backward-looking. to the considered Constitution judgments means of those respecting in and the originalism past. was applying offered the And as at a least constitutional reinforcing the status at interpretative quo in reaction to the method its progressive rulings of the Warren aimed inception, at Court. (2004). (2004). 2008 Republican Party Platform Party Republican 2008 2004 Republican Party Platform Party Republican 2004 And from the 2008 Republican Platform:Party 2018] 2018] D 40986 mqt_102-2 Sheet No. 66 Side A 01/29/2019 13:38:24 01/29/2019 A Side 66 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 66 Side B 01/29/2019 13:38:24 M K C Y

171 regardless regardless of and and seek to overturn [102:387 [102:387 172 governmental intervention. The less note 73. 73. note note 73. 73. note supra supra , , Whilethe Democratic positionhere fits neatly 170 MARQUETTE LAW REVIEW LAW MARQUETTE ) ) 1/17/2019 8:28 PM ELETE 169 D note 73. OT N O 2016 Democratic Party Platform Party Democratic 2016 Democrats Democrats are committed reproductive to health, protecting unequivocally, rights, like and the and majority advancing of woman should have to access care health reproductive quality justice. Americans, that every services, including We safe believe and where she lives, legal how much money she abortion makes, or how she is insured. We believe and wellbeing. health people's and young men's, women's, that reproductive health is core to Democrats will fight to in Democrats the areas discrimination end gender of education, employment, health care, or any other sphere. We will combat biases across economic, political, and also social and opportunities their limit and back women hold that life tackle specific challenges facing women of color. After 240 years, we will finally enshrine the Constitution rights by passing of the Equal women Rights Amendment. in And the we will urge U.S. Elimination ratification of of the Women. Convention All on the Forms of Discrimination Against We are committed to ensuring full equality for women. 11 (D .2016 Democratic Party Platform Party Democratic .Supra .2016 .Id. 169. 170 171 172 Relatedly, Relatedly, abortion rights has been the constitutional theme most With respect to the Democrats, they have been, for better or worse, much OCUMENT consistently consistently mentioned in Democratic Party platforms (in 1992, 1996, 2000, 2016). and 2012, 2008, 2004, less inclined to elaborate on constitutional themes in their party platforms in recent years. Of the constitutional themes that they have emphasized in these Jacksonian of synthesis the to true stayed surprisingly not have they platforms, otherwise has that statism governmental federal Whig and themes political class characterized much of contemporary Democratic Party ideology for the past several decades. For example, in their 2016 equality: gender on following Platform, they mentioned the federal federal and state laws and policies that impede a woman's access to abortion, incl 432 432 D with its larger orientation toward class politics and gender equality, they are postured on Platform, 2016 the this in example, For issue point. as this noted accordingly demanding have platforms that: first noted it 40986 mqt_102-2 Sheet No. 66 Side B 01/29/2019 13:38:24 01/29/2019 B Side 66 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 67 Side A 01/29/2019 13:38:24 has 433 433 defend the 175 173 Citizens Citizens United note 73. 73. note 73. note 73. note supra supra supra , , , of its diverse constituencies. These hints of a a of hints These constituencies. diverse its of especially especially in the 2008 and 2012 Platform and who understand that the Constitution 174 ) ) 1/17/2019 8:28 PM ELETE all, for and equality liberty of principles constitutional and will protect a woman's right abortion, to curb safe billionaires' and influence legal over because elections they understand fundamentally damaged our democracy, that and believe the Constitution protects not only the powerful, but support the appointment of judges who respect system of our checks and balances and the separation the of and Congress, Branch, Executive the among power Judiciary protects not only the powerful, women and men are who but judges confirm and nominate also always will and character and talent the unquestionable of demonstrate their faithfulness to Constitution our and law bring and people American with the how and our works society them American a sense of how judges judges who are law, of men rule the respect and firmly who women character, and of talent unquestionable who listen to and are respectful of different points of We America. of diversity the represent who and view, D OT an endorsement of the idea that constitutional fidelity entails the N POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O 2008 Democratic Party Platform Party Democratic 2008 Platform Party Democratic 2012 Platform Party Democratic 2016 11 (D 173. 174. 175. Within these statements we see again the familiar Democratic Party appeal appeal Party Democratic familiar the again see we statements these Within Of greater interest has been what the Democratic Party Platforms have said said have Platforms Party Democratic the what been has interest greater Of M K OCUMENT C Y to governmental actions on behalf Beyond of disadvantaged that, segments we of society. also see statements 2018] 2018] about the judiciary and method. constitutional interpretative Here again, their here But platforms. Republican the in find we what than sparser are statements are the following comments from the three platforms where they did appear of years: span this during D the of context the in leaders Party Democratic by statements in forcefully more 40986 mqt_102-2 Sheet No. 67 Side A 01/29/2019 13:38:24 01/29/2019 A Side 67 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 67 Side B 01/29/2019 13:38:24 M K C Y 177 [102:387 [102:387 Sen. Biden). Sen. Clinton). Founders of our country ever intended us to MARQUETTE LAW REVIEW LAW MARQUETTE ) ) 1/17/2019 8:28 PM ELETE Almost twenty years later, then-Senator Clinton said the D 176 OT defined defined here as a more equal, inclusive, and just polity. Much as N O rubberstamp. The stakes could not be higher. be not could Thestakes rubberstamp. Our greatest strength has generation always American after great That equality. been and rights generation,of circle the our enlarging with commitment, some fits commitment has and made us starts, against point a tipping the be well beacon could nomination to This world. of freedom around the based and freedoms constitutionally protections we cherish as individuals and as a nation. I fear Judge Alito will roll back decades of progress and roll over when confronted too to flaunt administration forwilling the and a rules looking with an 11 (D 178 176. of (statement (1987) 28656 27341, Rec. Cong. 133 177. of (statement (2006) S68 Rec. Cong. 152 178. Feinstein). Sen. of (statement (2017) S2324 Rec. Cong. 163 Thus, Thus, in the Senate debates over the nomination of Robert Bork, then- And finally, eleven years later in the context of the Senate debates over Neil Neil over debates Senate the of context the in later years eleven finally, And Again, Again, the cumulative effect of these statements by Party leaders over the OCUMENT following in the context of the Senate debates over Samuel Alito: Alito: Samuel over debates the Senate of context the in following government. government. If we circumscribe liberty within betray such historical bounds, the we heritage of our forebears and endanger the legacy of our 434 434 floor debates over Supreme Court nominees and cumulatively, another influence of they Whig thought for modern day Democrats: in hint this context at of constitutional interpretation and how best fidelity, the focus is on the achieving toward some utilizing form document of to demonstrate constitutional future. the unknown in progress Senator and then-chairman of the Judiciary Committee, Joe Biden stated that: harmonizing the liberty and popular sovereignty that comprise free D Gorsuch, Senator Dianne Feinstein, ranking member of the Senate Judiciary social ignore to supposed not are We evolves. country our as evolve to intended American society and its economy might be transformed, we hear similar notes notes similar hear we transformed, be might economy its and society American modern the within span of thirty years is a fidelity, forward-looking orientation with toward fidelity constitutional shown through the achievement of the change Whigs toward were temporally oriented toward an unknown future where 40986 mqt_102-2 Sheet No. 67 Side B 01/29/2019 13:38:24 01/29/2019 B Side 67 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 68 Side A 01/29/2019 13:38:24 183 435 435 FFILIATION FFILIATION A (b) In addition, 181 ARTY ARTY P The non-class-oriented non-class-oriented The Anti-Statist Anti-Statist Jacksonian Libertarianism 180 Further, implicated within 182 LTERNATIVES A ONSTITUTION IN C OME :S Statist Statist Populism Whig THE AND , ARRATIVES . N ) ) 1/17/2019 8:28 PM OCIETY ELETE Part II. II. Part II. Part Part II. II. Part II Part ,S Because of this, each Party had a distinct strategy with respect respect with strategy distinct a had Party each this, of Because Part II. D 179 OT N POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O 11 (D CONOMY .See supra supra supra .See .See .See supra supra supra supra .See .See .See 182 183 179 180 181 One might say that each box represents an archetypal party narrative on the the on narrative party archetypal an represents box each that say might One As introduced in Part II and referenced in subsequent Parts, we can With these points in mind, consider this two-by-two box setting forth M K VI. E Segmented Society Society Segmented Non-Segmented Society OCUMENT C Y economy and economy society since, in practice, parties may different employ multiple each party saw the federal government as playing a different role within their respective economic visions. For Whigs, federal intervention was crucial for individuals to achieve economic improvement, while for Jacksonians, federal intervention in the economy was symbolic of a dysfunction that might lead to elites being unfairly privileged by government. nature of the Whigs pressed them toward a rhetoric of outreach that emphasized emphasized that outreach of rhetoric a toward them pressed Whigs the of nature the potential for economic improvement for all Americans. identify identify two crucial elements of about the respective assumption views core on a held the party Jacksonians Each and (a) society: and economy the on Whigs on emphasis an was there Jacksonians, the For society. American of nature the the segmented nature of the American polity producers, while between the Whigs producers emphasized a and view of non- society absent such stark segmentation. to outreach toward non-core constituencies. Jacksonian pressed ideology them to more expansive rhetoric on those classes The class-oriented nature of protection from selfish, unfairly privileged elites. 2018] 2018] D statism statism of the Whigs connected to a more future-looking orientation, and the and present. past on the to a focus linked Jacksonians of the anti-statism their their respective views on federal statism was a temporal orientation, with the contrasting contrasting party views emphasis): in anti-statist vs. (statist state theand emphasis) on society (segmentation vs. non-segmentation 40986 mqt_102-2 Sheet No. 68 Side A 01/29/2019 13:38:24 01/29/2019 A Side 68 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 68 Side B 01/29/2019 13:38:24 M K C Y note note note ISIONS OF such as V supra supra , , In fleshing out out fleshing In 184 ONFLICTING :C The populist view also also view populist The [102:387 [102:387 185 DEALS I IVIC ,C 2004 Democratic Party Platform Party Democratic 2004 2016 Democratic Party Platform MITH Given insurgent Republican concerns concerns Republican insurgent Given Populism Populism 187 note 73; s role in managing the economy. Some note 73; M. S A. supra supra supra , , 90 (1997). OGERS OGERS MARQUETTE LAW REVIEW LAW MARQUETTE 489 note 106. 106. note ) ) 1/17/2019 8:28 PM supra ISTORY ELETE D OT oneFinally, also finds of the inpopulist elements view modern- Democratic Platform N U.S. H yneux, O 186 1992 11 (D .See id. .See 186. Mol 187 184. On this point, see R 185. This This mix of a segmented view of society combined with a more statist Looking Looking ahead to the future, the populist view may yet come to dominate 2012 Democratic Party Platform ITIZENSHIP IN OCUMENT 73. 73. 73; 73; day day insurgent Republican Party thought as well, qualms though about with federal some intervention. greater orientation orientation speaks to a blend of the Jacksonian view of society and the Whig elements of this view have always been present in contemporary Democratic Party thought, though it has been especially pronounced (as indicated by the party platforms) in 1992, 2004, 2012, and 2016. each narrative within these four boxes, I will offer some comments political on entrepreneurs how might broaden each narrative-type to capture a expansive more portion of the electorate in politics. contemporary After doing so, I affiliation party ofnarrative of type what on comments some with concludewill attractive. would normatively find I C 436 436 syntheses. ideological sometimes-incongruous into elements D speaks speaks to the core perspective of the modern-day insurgent (or Sanders) wing of the Democratic Party with its focus on both the unfair advantages enjoyed by economic elites, and its advantage. desire for greater state power to check that gaining gaining an unfair advantage due to federal governmental privilege, insurgent Republicans may have serious-to-qualified concerns about seeing the federal government as the best tool for rooting out them. concern the forms of disadvantage that the Democratic Party if the insurgent wing strength from of young the voters party and continues activists. to If gain segmentation will be at the core of it its populist message. But beyond that, for does, a focus on economic populism to orient a modern-day Democratic Party, leaders of have that the segmentation Party of forms will status-based the integrate to way a find to have been central to contemporary Democratic Party thought about certain constituencies such as racial minorities, women, or urbanites 40986 mqt_102-2 Sheet No. 68 Side B 01/29/2019 13:38:24 01/29/2019 B Side 68 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 69 Side A 01/29/2019 13:38:24 and and -based and and the present-day 437 437 within within a more broadly broadly defined .C. by Trump and his supporters. supporters. his and Trump by .C. Jacksonian View View Jacksonian B. The real question is one of prioritization: between between prioritization: of one is question real The 188 ) ) 1/17/2019 8:28 PM note 29. 29. note become become problems beyond the reach or power of the state to ELETE which which overlap significantly with the concerns of those in the supra D OT note 73. 73. note N POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O Finally, the problematic role of the federal government also carries carries also government federal the of role problematic the Finally, Supra 189 11 (D 188. 189. Inskeep, Of course, it is hard to imagine Democratic Party leaders rejecting either The The combination of a segmented societal view with a more anti-federal What What would it take for this perspective to expand within either the M K OCUMENT C Y century. governmental governmental posture speaks to the classic alluded to Jacksonianabove, one finds perspective, strong hints differ of but may this antagonism within popular modern-day as of insurgent focus The thought. Republican may they elites,but economic about concerns have may Republicans insurgent have equal or greater concern about cultural elites. Yet, the rhetoric of unfair advantage in the present day invokes Jacksonian rhetoric from the nineteenth 2018] 2018] disadvantages based on race, gender, and sexual orientation as well. vision economic-populist emphatic economic or status-based themes of segmentation and disadvantage idea that government is Elements needed of all of these ideas are present in every to Democratic Party platform combat these present. the to 1992 from forms of disadvantage. D minority, and white working-class voters that the Party will need for a winning winning a for need will Party the that voters working-class white and minority, coalition. This is the primary challenge for a populist-based vision coalition.of Party Democratic expansive of a more core the be at to party affiliation economic economic and social status, which will enjoy priority, and what consequences of any for specific prioritization attracting the will young, educated, be the Republican Party or within a the of members grass-roots disenchanted beyond third expand to have party? probably would aggrieved This coalition of the working and middle-class, social conservatives, those annoyed with political to to would connect It nationalists. to attempt and correctness, white any have and all constituencies who felt disadvantaged forward forward from the nineteenth century as well. Hence the use of phrase of segmentation Jacksonian box aggrieved aggrieved by federal action (as either the cause of that grievance or unhelpful in redressing it). Probably the most attractive hope in this vein would be the possibility of insurgent Democrats, especially young voters, becoming so solve. solve. If, for example, Sanders widespread belief that the federal voters government, or government in general, was get to a place where there was a 40986 mqt_102-2 Sheet No. 69 Side A 01/29/2019 13:38:24 01/29/2019 A Side 69 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 69 Side B 01/29/2019 13:38:24 M K -cat -cat C Y of of modern 32. 32. at 28 at [102:387 [102:387 see also id. and and sometimes constraint Whig View Whig note 131, at 29; C. supra supra , MARQUETTE LAW REVIEW LAW MARQUETTE ) ) 1/17/2019 8:28 PM EILEMANN Republican Republican parties have converged on the message of the &H ELETE D OT and N However, when economic conditions permit it as a viable strategy, strategy, viable a as it permit conditions economic when However, O ALPERIN 190 11 (D 190. H In moments of economic tension, holding these constituencies together can can together constituencies these holding tension, economic of moments In But again, as the 2016 election demonstrated, this strategy has its limits if At present, these ideas are somewhat embattled within the Democratic The The combination of a non-segmented societal view with a more federal OCUMENT Democratic Party leaders. leaders. Party Democratic be a challenge. To take Heilemann note the facedObama conflict after in his election 2008 Wall from a relatively mild example of Street this, donors, who Halperin g and substantive substantive changes in the future that may go down easier in economy. a more robust candidate presidential a on is focus the if or oblige, not do conditions economic that cannot create the necessary enthusiasm to bind these groups together. the Whig perspective offers an optimistic narrative that is able to bind these disparate groups together: a rising tide could indeed lift all boats, thus taking the sting out of grievances tied to social status, and perhaps offering hope for convergence convergence amongst these groups is not obvious, and especially in a time of where election campaigning is money key, being able to court donors wealthy has been a crucial component One might go even further and say that especially in those years where there have been strong economic Democratic conditions, the establishment all. to benefits universal with growth, of economic priority wings of the American in force a such been have they why remembering worth is it but Party, politics for the last several decades. winning formula in binding together a First, diverse array of distinct constituencies. this orientation has provided a To take an example, the modern Democratic Party encompasses both an array of disadvantaged constituencies such as individuals, racial working-class minorities, women, individuals, The LGBT individuals. wealthy economically but liberal, and socially of partner coalition pairs them with the strange statist statist posture on the economy was the core Whig outlook. As alluded to in Part III, this was also a perspective that has held and continues that to perspective hold statist a sway with albeit Party, Democratic contemporary the within is likely far beyond what most Whigs contemplated in the nineteenth century. 438 438 beyond redemption, they might fall within this Jacksonian box, and the ranks dramatically. grow might voters of these D 40986 mqt_102-2 Sheet No. 69 Side B 01/29/2019 13:38:24 01/29/2019 B Side 69 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 70 Side A 01/29/2019 13:38:24 like like the state, and 439 439 ederalist in the sense of whether whether economic or each each of which have a Libertarian View View Libertarian D. ) ) 1/17/2019 8:28 PM ELETE More broadly, we might also say that this orientation is, in D cannot cannot be managed by the vague promise of future economic a universalist perspective. perspective. a It is universalist pitched to everybody. Hence, so OT 191 N POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O 11 (D 191. to possible be of It one f is a version principled conceptually truly In In favor of this type of party narrative, the libertarian view is The combination of a non-segmented societal outlook with a more skeptical skeptical more a with outlook societal non-segmented a of combination The M K OCUMENT C Y especially federal. For this perspective to gain greater traction in the future, the the future, the in traction greater gain to perspective this For federal. especially most likely strategy would be to to such areas as involvement other policy crime, health education, etc. care, expand this concern about governmental and hope that more voters will believe that good policy outcomes will follow market. free the with interference governmental less short, the flip-side of the Whig view in that it speaks to a strain of thought that that thought view in that Whig to aof of strain speaks the it short, the flip-side generally: more Republicanism contemporary of portion good a across extends be will goal this that believing growth,and economic universal greater seeking aided by a smaller governmental footprint in the economy view, view, everyone there where further, is step one taken perspective in Jacksonian the is it the involvement; same boat as being ill-served by governmental Whig Whig view long as one is a believer in the core idea generally that a governmental involvement problem, is there are no distinct modern-day factions Jacksonians, to or manage (in modern-day party a offers contrasteach Populistssince problem coalition-management to the of form heightened libertarian a In segments). societal to speaking self-consciously is that narrative status-based 2018] 2018] Looking to the future, if the Whig strategy might be deployed successfully by the Democrats, perhaps it may find support from kind right another the and her, leader or him like of front in Obama conditions economic right the had who of charisma. That said, Obama was a talented and candidate, particularly it is that (or soon anytime arrive will skillset his with someone whether questionable this with successful be can skills of set modest more somewhat a with someone approach). At some point, especially with decades of rising inequality finally persistent where juncture a at be may we alignments, party traditional affecting and growing concerns about structural disadvantage D favoring favoring vigorous state intervention in certain policy domains while also among tendency the not economy, to the tied of policies realm the within at least favoring However, intervention. any federal levels. state and federal the both on anti-statist be to is Republicans contemporary growth accompanied by universal benefits. benefits. universal by accompanied growth the to speaks economy the in intervention governmental federal toward posture to the social is hostile that Republicanism modern-day libertarian strain within welfare state. 40986 mqt_102-2 Sheet No. 70 Side A 01/29/2019 13:38:24 01/29/2019 A Side 70 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 70 Side B 01/29/2019 13:38:24 M K C Y [102:387 [102:387 might have much broader appeal: appeal: broader much have might and where the ranks of the downtrodden downtrodden the of ranks the where and MARQUETTE LAW REVIEW LAW MARQUETTE the government the ) ) 1/17/2019 8:28 PM Constitutional Fidelity and Party Narratives Party Narratives and Fidelity Constitutional ELETE E. D and depending upon context upon depending and OT N O 11 (D From From this very briefly-stated normative starting point, I am led to find With some of these distinct possibilities for party narratives now on the Tentatively, I would start from the basic presumption that an attractive Still, the libertarian perspective, like the Whig perspective, is likely to have have to likely is perspective, Whig the like perspective, libertarian the Still, OCUMENT narrative narrative of affiliation must either hold broad appeal for at least a majority of the polity, or possess the potential to be attractive to majorities in the not-too- distant future. A narrative rejects ultimately polity of targeted the of most if together polity a affiliation bind to helping cannot fulfill its core function of that narrative. Beyond this basic point, I would also endorse a general set of values that have their traditional home in the contemporary Democratic Party, theory in but (a) the desirability of inclusivity; (b) a concern across about hierarchies in various other power and class, economic orientation, domains sexual gender, race, across disadvantages of social life; dimensions of social status; and (c) (d) a belief that continued state a intervention and desirable. necessary is society into American concern about structural table, table, let me conclude on a more normative point in offering my own view on the type of narrative, or combination of narratives, I would consider the most to address a first have I question, this to answer in order However, defensible. more immediate one: namely, desirable? less as more or What affiliation of narratives different party criteria might we use in evaluating 440 440 enemy one only is D elements elements of Jacksonian populism and Whig universalism equally attractive. Briefly stated, the ability of the toformer speak to group disadvantage is both virtue the has it and stress, economic of times in messaging political compelling of sociological accuracy. Yet, the unknown, better future can focus be equally compelling messaging, and a of necessity Whig ideology on an for holding as-yet- together a coalition of voters concerns. with The task very then for different successful ideological interests entrepreneurs is and to try to times times where economic conditions were good enough to suggest the potential for optimism and improvement, while being not good enough for voters to be quo. status the with satisfied are expanded to include basically everyone. everyone. basically to include are expanded severe limits in its appeal during times of economic crisis, when the federal voters. enough for villain enough nota convincing be or may may government Further, the libertarian orientation toward universalism also suffers from the inability to articulate the hardships and particular groups disadvantages in that the same way are a specific Jacksonian or to populist perspective One can. suspects that the libertarian perspective would find its greatest appeal in 40986 mqt_102-2 Sheet No. 70 Side B 01/29/2019 13:38:24 01/29/2019 B Side 70 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 71 Side A 01/29/2019 13:38:24 note 2, at 34 441 441 supra 23; Cover, 192 28, 120 at at 27 political and legal narrative built upon upon built narrative legal and political of securing greater equality for more and and more for equality greater securing of see see also id. 6; note 9, at 5 ) ) 1/17/2019 8:28 PM ELETE supra supra D , OT N POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O however vaguely defined vaguely however ALKIN the dross of past moral compromise. Through constitutional promised always it what becomes Constitution the redemption, it would be but never was; appropriately it responds it changes application; in and interpretation the correct direction of its and circumstance. in time to alterations Redemption Redemption is not simply reform, but change that promise of fulfills the past. a Redemption does not mean discharging the existing Constitution and substituting a different one, but the we Constitution returning tohave its pushing correct path, it closer to what we take to be its true nature, and discarding 11 (D 192. B Again, Balki Again, In a basicaIn sense, theredemptive ideal speaks tothenotion thatthe American First, a redemptive narrative focused on the structural disadvantages faced disadvantages faced on focused First, the a narrative structural redemptive M K OCUMENT C Y goals goals that run directly antithetical to the values I paragraph. identified in the However, previous if deployed toward recognition of structural it disadvantages, offers the to my mind perhaps the most goals of inclusivity and the attractive way of creating unity disadvantages and out wrong-doings that have of fallen on distinct the segments of the acknowledgment of polity. Jack Balkin articulates the redemptive ideal historical as follows with respect to narratives: constitutional 2018] 2018] synthesize these two elements. ideological To vehicles for my doing so from mind, our political one and legal of traditions is the a most attractive barriers to equality life. American in disadvantage economic of centrality the emphasizes premised on race, gender, and sexual polity orientation, is engaged in founding a purpose set within its cross-generational core identity. Obviously, redemptive project themes toward deployed be easily could and to ways of number any in deployed be might redeem some larger D 35. 35. appealing and enduring elements of the Jacksonian and Whig party visions. Let Let visions. party Whig and Jacksonian the of elements enduring and appealing in turn. each mention me by different social groups speaks to one of the core elements of Jacksonian basic basic idea to narratives of Following fidelity democracy. constitutional that American of extend system larger the beyond encompass just the document to a cross-generational vision of promise America as seeking more disadvantaged social groups, to including the economically-disadvantaged, redeem an initial has at least four virtues. Collectively these virtues speak to some of the most 40986 mqt_102-2 Sheet No. 71 Side A 01/29/2019 13:38:24 01/29/2019 A Side 71 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 71 Side B 01/29/2019 13:38:24

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in 195 194 ” uality, and Gay E q Groups Especially in the polarizedpolitical climate of the “ 193 MARQUETTE LAW REVIEW LAW MARQUETTE and and the celebration of achievements note 9, at 31. ) ) 1/17/2019 8:28 PM Situating ELETE supra supra D , Ideological Ideological Drift and the Struggle over Meaning OT N O ALKIN rs). of a post-racial was talk there election, nation my itself. After America. Such a vision, however well-intended, was never in force a realistic. and divisive potent often remains For race 11 (D .Stuart Chinn, Chinn, .Stuart 195. B 194. On how the political meaning of certain concepts may cha may concepts 194. certain of meaning political the how On 193 95 (2006) (discussing the creative appropriation of certain enduring concepts by astute ideological ideological astute by concepts enduring certain of appropriation creative the (discussing (2006) 95 Third, redemptive narratives that incorporate economic hardship may have have may hardship economic incorporate that narratives redemptive Third, Second, Second, however, a redemptive narrative focused on structural OCUMENT member of the political community. and Purposes: Racism, Liberalism, and the American Political Tradition Political American the and Liberalism, Racism, Purposes: and entrepreneu present, present, it would seem impossible for either party to ignore these differences, divergence of point their do; Republicans or Democrats the neither indeed, and to continues idea Jacksonian This prioritizes. each groups which in lies simply are themselves Jacksonians the if even inclusion, of means a as resonance have inclusivity. for model a problematic 393 (1993) ( 442 442 ideology: it recognizes the segmented nature social of certain under differently fare may groups social different that possibility American society, and the conditions. economic and D (2015). (2015). see J.M. Balkin, political political community bound by a shared project of future. unknown better, about a optimism shared self-improvement, and a As noted or uncertainty. crisis of economic times in appeal strong particularly above, we have seen the heightened attention to income inequality in recent years from the Democratic Party. speech: farewell in his Obama Note, for example, this comment from Arguments on Economic Rights, Gender E disadvantage has the virtue of not simply being ofhas an the disadvantage not group virtue simply account of punishing A for its past behavior to group B. Rather, because it is oriented as a shared historical project, the a hardships these makes that way a in hardships redemptive differential and segmentation narrative has the responsibility potential of to all for recognize their progress eradication the shared triumph of all. In other genuinely words, acknowledging it offers and an incorporating avenue narratives for about the different struggles of social groups into one purports to speak to larger, every member of the polity. And because this is more a cross- encompassing for responsibilities the narrative makes it polity, entire the spans that that project generational those shortcomings 40986 mqt_102-2 Sheet No. 71 Side B 01/29/2019 13:38:24 01/29/2019 B Side 71 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 72 Side A 01/29/2019 13:38:24 L. (Jan. 10, 10, (Jan. , 94 B.U. 443 443 -sum -sum OLITICO broader broader appeal , P which was a core a core which was a set of constitutional two significant significant two 197 because because those significantly All of us have more more have us of All The Anti-Oligarchy Constitution - a party that truly took such a redemptive narrative narrative redemptive a such took truly that party a 196 ) ) 1/17/2019 8:28 PM Text of Farewell Address by President Barack Obama ELETE D OT 75 (2014) ( N Joseph Fishkin & William E. Forbath, POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O game. Last year, incomes rose for all races, all age groups, for for groups, age all races, all for rose incomes year, Last game. and for women. men diminish the prospects of our own children workforce. work work to do. After all, if every economic issue is framed as a struggle between a undeserving minorities, then workers hardworking of all shades will be left white middle fighting class for scraps and while the wealthy withdraw their further private enclaves. into If we decline to invest in the children our society. society. our are better than they were ten, or twenty, or thirty years ago young of attitudes the in but statistics, in just not it see can you spectrum. the political across Americans 11 (D .See 197 196. Politico Staff, Again, Again, the need for contemporary Democrats to integrate concerns about .669,672 M K EV OCUMENT C Y arguments arguments focused on the problems of economic class inequalities and excessive concentrations of economic power). with respect to race, gender, and sexual orientation, economic hardship with more conventional Party commitments to status-based status-based to commitments Party conventional more with hardship economic inequalities is hardly news to them. redemptive vision of But the American constitutional system could emerge where if a truly robust and substantive the structural disadvantages that are connected to economic status could conceptualized as be related to or integrated with the obstacles commonly noted 2018] 2018] D R 2017, 2017, 10:07 [https://perma.cc/3QBF-9CQP]. PM), barack-obama-233456 https://www.politico.com/story/2017/01/text-of-farewell-address-by-president- will inevitably accrue to the benefit of all. all. of benefit the accrue to inevitably will consequences consequences might follow: first, there might be for this type of redemptive narrative during the present period of discontent. economic Second, this type of narrative might press the Democratic Party toward policy goals and objectives that would align it in a more realistic way with its familiar rhetoric hoping on for of a future narratives for conventional all better helping the middle and in Democratic common so been and that has ideology Whig of component class. In place platforms party Republican of the the reassessing critically about conversation a prompt could point starting its as starting presumption of the Whigs that has continued to be so prominent (and economy booming a that politics: contemporary in problematic) ways, many in 40986 mqt_102-2 Sheet No. 72 Side A 01/29/2019 13:38:24 01/29/2019 A Side 72 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 72 Side B 01/29/2019 13:38:24 M K C Y MERICAN MERICAN A AR AR IN W IVIL C HE :T [102:387 [102:387 EUNION R ACE ACE AND ,R 198 LIGHT W. B MARQUETTE LAW REVIEW LAW MARQUETTE AVID AVID as contemporary Democrats might as argue is contemporary the case with ) ) 1/17/2019 8:28 PM D ELETE D OT N O See See generally (2001) (discussing such dynamics in the post-Civil War era). War post-Civil (2001)the in dynamics such (discussing 11 (D 198. However, However, in endorsing the normative appeal and utility of redemptive Fourth, and relatedly, an expansive redemptive vision aimed at rectifying A second set of critiques might be rooted in the opposite perspective: that EMORY OCUMENT state laws that seek to curtail the right to an abortion, or federal or state actions actions state or federal or abortion, an to right the curtail to seek that laws state by law enforcement directed at racial minorities or undocumented immigrant communities. narratives, we should also take note critiques of might its fall into potential at limits. least two categories: The narratives the potential first may is understate that historical redemptive wrongs. One (and ofthe into stories at a group struggles of dynamic common incorporating might worry that in the least somewhat more uplifting) narrative of redemption, reconciliation toward push collective the in there forgotten or simplified, minimized, is also a structural structural disadvantages could speak to both the federal statism of the Whigs be readily more would it if (even Jacksonians the of statism anti-federal the and identified as a statist orientation). Such a vision would encompass harnessing the power of the state to redress the harms faced by vulnerable groups due to discrimination and disadvantage in redemptive civil narrative might society. also incorporate At scaling corrective back the coercive power of the measures state the in contexts where it aimed might create same at time, harm the structural a M 444 444 D changing changing world sometimes allows the leaders of party coalitions to take pressure the off of contemporary divisions. convincing enough, competing factions find may it quite If plausible to consider optimistic party narratives are joining together into a common goal of expanding the pie, where the lines of disappear. even or change theoretically could division too great a reliance on history may undermine the goal of a common national project of self-improvement. Indeed, redemptive in historical seeking to explain the present through the lens narratives of the past. While are inherently at times this orientation may be both comforting and helpful in giving these narratives broad appeal, a single-minded reducing our focus changing social on world to categories redemption from the also contemporary past and risks forcing politics to continue Redemptive narratives to may very well rehash fail focus the to decades: several capture past thethe what through growth economic was on focus the so fights about appealing of another time. on a different, as-yet-unknown, better future that might free the polity from some of the struggles of the past and present. Indeed, focusing on a future, 40986 mqt_102-2 Sheet No. 72 Side B 01/29/2019 13:38:24 01/29/2019 B Side 72 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 73 Side A 01/29/2019 13:38:24 as we we as 445 445 discussion about about discussion invites in an election or in a legislative battle ONCLUSION C VII. ) ) 1/17/2019 8:28 PM ELETE D OT economic economic conditions falter. In a time of economic insecurity or N POLITICAL PARTIES AND CONSTITUTIONAL FIDELITY O 11 (D With With respect to the second critique, it rightfully notes how compelling However, However, neither into these of of is incorporated critiques being incapable M K OCUMENT C Y to move forward when limits severe own in their have narratives progress that emphasizing embracing the unknown. have seen Finally, it prosperity of future unseen an in is faith their put to voters also asking crisis, economic worth is likely to be an uphill battle. Hence we saw a greater presence for populist themes from winning clear the have narratives redemptive instances, these In IV. in Part uncertainty presidential coalitions during progress. on focused centrally more narratives over advantage times of economic economic or social progress do not. In their favor, redemptive narratives offer narratives offer not. do social theirprogress favor, redemptive or economic In a receive potentially to critique first this with raised concerns the for pathway a in time. hearing narratives of progress can be when conditions permit. Still, one understate should not the possibility for progress to be integrated narrative within either. a Within redemptive its very orientation, redemptive narratives are both backward and forward-looking, so integrating concepts unimagined of future a hardly better, as-yet seem entrepreneurs beyond and party the leaders. be ability More must that events appealing historical in narratives of rooted being will between balanced have conscientiously skilled to be ideological acknowledged, and being oriented toward a future that might allow the polity accounting for past historical wrongs in a way that narratives purely focused on on focused purely narratives that way a in wrongs historical past for accounting the desire to paper over differences and not dig too deeply into past wrongs for for wrongs past into deeply too dig not and differences over paper to desire the strategic a grounds, normative on Even inescapable. is unity present of sake the choice by party leaders to avoid airing out certain differences substantive can be compelling. At the least, a redemptive narrative commentators, commentators, and the view subsequent to arguably the not 2018 much midterm clearer. elections is Jacksonian-Democratic In and Whig examining Parties, and some in of mapping those the contemporary ideas party onto key ideologies, my hope ideas has been, of in part, to the show sought Further, have I eras. two historical these between connection a historical strong to provide some conceptual tools from that era to present moment. aid As I in note in understanding the preceding the Part, I believe that a redemptive party narrative can combine some of the most attractive elements of the ideologies of party rethinking fundamental a prompted election 2016 The presidential and party dynamics among politicians, scholars, and public a redemptive narrative. With respect to the first critique, the risk of historical In present. always is narratives party in accounting full a receiving not wrongs the push to get a majority of votes 2018] 2018] D 40986 mqt_102-2 Sheet No. 73 Side A 01/29/2019 13:38:24 01/29/2019 A Side 73 No. Sheet mqt_102-2 40986 40986 mqt_102-2 Sheet No. 73 Side B 01/29/2019 13:38:24 M K C Y [102:387 [102:387 MARQUETTE LAW REVIEW LAW MARQUETTE ) ) 1/17/2019 8:28 PM ELETE D OT N O 11 (D OCUMENT 446 446 Jacksonian and Whig ideologies, and I suspect that at least portions of such a narrative could find appeal in contemporary politics. But whether the party narratives that ultimately take hold orientation or not, in my hope is that the they will align with the near substantive ideals future popularbroad, in here, will and they maintaining articulated successful that be are redemptive in system. constitutional the to fidelity D 40986 mqt_102-2 Sheet No. 73 Side B 01/29/2019 13:38:24 01/29/2019 B Side 73 No. Sheet mqt_102-2 40986