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How Can We Fix the Constitution?


Where's the Party?

The Constitution should make party primaries open to all voters.

Voters cast their ballots voting booth during a Republican primary
Voters cast their ballots voting booth during a Republican primary

Photograph by Jessica Kourkounis/Getty Images.

Open Primaries (Article I)

For better or for worse, political parties are an essential part of modern democracy. In this country and elsewhere, they make large-scale political competition possible. The majority of the world’s constitutions recognize their importance: Two-thirds of constitutions today, for example, contain an explicit right to form parties. Yet the U.S. Constitution doesn’t acknowledge their existence. In fact, the Framers swept the idea of political parties even further under the constitutional rug than slavery (which they at least addressed obliquely). Their failure to confront the prospect of party politics quickly proved disastrous. They designed a system in which presidential and vice-presidential candidates from the same party could tie one another, first in the Electoral College and then again in the supposedly tie-breaking House of Representatives—which is precisely what happened in the election fiasco of 1800. While the 12th Amendment was soon adopted to prevent that specific scenario from repeating itself, the underlying defect remains unresolved: The design of the Constitution simply does not factor in the consequences of the party system.

The result is that our Constitution fails to describe how our system of government actually operates. And it is operating in increasingly dysfunctional ways that the Framers neither intended nor anticipated. In the name of preventing tyranny, the Constitution sets out a system of government that is designed to deliver a good deal of gridlock by dividing up power along multiple dimensions—both horizontally, among the branches of government (the “separation of powers” with “checks and balances”), and vertically, between the national government and the states (“federalism”). But adding politically divided government to the mix, as occurs whenever one party controls the presidency and the other controls the House, the Senate, or both, takes things to a whole new level of paralysis and conflict.

This constitutional design flaw is aggravated by the increasing distance between the parties. Take it from the political scientists who have devised fancy statistical techniques for studying this exact phenomenon: Political polarization really is getting worse. Some relatively moderate politicians are heading for the exits on their own, while others are discovering that the middle of the road is increasingly a place where you get run off the road by your own party. That’s an especially big problem in states like Utah or Texas, where the real action takes place in the primary.

The Supreme Court, alas, has been rather unhelpful on this front. It has ruled that parties have a constitutional right to decide who gets to participate in their candidate selection processes, and it has struck down “blanket primaries,” in which all candidates from all parties are listed on a single ballot and voters can choose the candidate they most prefer from any party. If that is how the court is going to interpret the Constitution, then it is time to change the Constitution.

A constitutional guarantee of open primaries would accomplish a number of things. It would help to keep political polarization in check. It would enhance voter choice by giving people the opportunity to pick the candidate they most prefer, regardless of party affiliation. And it would give us a Constitution that reflects reality instead of pretending that political parties don't exist. One little sentence could do the trick:

No person shall be denied the opportunity to vote in a primary election for the office of Senator, Representative, President, or Vice-President, on account of his or her party affiliation or lack thereof.

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