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Rutgers Law Review




In the last decade or so, the Supreme Court has revitalized judicial enforcement of federalism. This development has spurred the partisans of Herbert Wechsler's "political safeguards of federalism" to begin a serious investigation of the ways in which extra-judicial politics can and does substitute for and complement the judicial role in enforcing federalism and the Constitution. Similarly, constitutional scholars have turned in increasing numbers to the question of how even judicially promulgated doctrines of constitutional law turn out to be more derivative of popular politics than vice versa. Necessarily, much of the investigation on both fronts has turned historical and has turned to the central institution of popular politics in this country - the political party.

This article is an effort to clarify the origins of the political party as a core institution of the American constitutional order - an institution unmentioned in the Constitution itself and, in fact, an institution to which the Founders were deeply hostile. The article focuses on the constitutional thought and political action of Martin Van Buren, the chief figure in the origins of American party politics in the early nineteenth century. Van Buren was the leader and virtual creator of the first, permanent mass political party, and he was its chief theorist as well. Brilliantly constructing a theory by which the antiparty American polity might accept the constitutional necessity of party organization, Van Buren drew on the vital political issues of his day to argue that only a truly democratic party - not the Supreme Court - could preserve and enforce the Constitution's most fundamental principles, including federalism and coordinate construction.

Like most successful revolutions, Van Buren's constitutional revolution turned out to have all sorts of unintended consequences, but Van Buren's work remains foundational to American governance. Substantially anticipating both the modern Supreme Court's Garcia doctrine and modern scholars' emphasis on constitutional law's dependence on constitutional politics, Van Buren's thought and action reveals how constitutional law has always been a matter of negotiation between judicial politics and party politics, never simply a matter of case law.


Boston University School of Law Working Paper Series, Public Law & Legal Theory Working Paper No. 01-20

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