Separation of Parties, Not Powers
Levinson, Daryl J., Pildes, Richard H., Harvard Law Review
INTRODUCTION I. FROM BRANCHES TO PARTIES A. Madison and the Mechanisms of Political Competition B. Presidential, Parliamentary, and Party Government C. Conclusion: Separation of Parties II. PARTY UNIFICATION AND DIVISION OF GOVERNMENT A. The Past, Present, and Future of Unified and Divided Government 1. Unified and Divided Governments 2. Fragmented and Cohesive Parties B. The Functional Differences Parties Make 1. Legislative Efficacy 2. Executive Accountability III. REENVISIONING, AND REFORMING, THE SEPARATION OF POWERS A. Separation-of-Powers Law 1. Rights and Executive Powers During War and Crisis 2. The Administrative State 3. Judicial Review B. Democratic Institutional Design 1. Minority Opposition Rights 2. Bureaucracy and the Checking Function C. Political Parties and the Law of Democracy 1. Safe Districting 2. Primary Election Structures 3. Internal Legislative Rules 4. Encouraging Divided Government CONCLUSION
American political institutions were founded upon the Madisonian assumption of vigorous, self-sustaining political competition between the legislative and executive branches. Congress and the President would check and balance each other; officeholders would defend the distinct interests of their different institutions; ambition would counteract ambition. That is not how American democracy turned out. Instead, political competition and cooperation along relatively stable lines of policy and ideological disagreement quickly came to be channeled not through the branches of government, but rather through an institution the Framers could imagine only dimly but nonetheless despised: political parties. Few aspects of the founding generation's political theory are now more clearly anachronistic than their vision of legislative-executive separation of powers. Yet few of the Framers' ideas continue to be taken as literally or sanctified as deeply by courts and constitutional scholars as the passages about interbranch relations in Madison's Federalist 51. This Article reenvisions the law and theory of separation of powers by viewing it through the lens of party competition. In particular, it points out that during periods--like the present--of cohesive and polarized political parties, the degree and kind of competition between the legislative and executive branches will vary significantly and may all but disappear, depending on whether party control of the House, Senate, and Presidency is divided or unified. The practical distinction between party-divided and party-unified government thus rivals, and often dominates, the constitutional distinction between the branches in predicting and explaining interbranch political dynamics.
Describing a set of "wholly new discoveries" in the "science of politics" that might enable democratic self-government to succeed in the American republic, Alexander Hamilton listed first the "balances and checks" that distinctively characterize the American system of separation of powers. (1) In Madison's ingenious scheme of separated powers, "the interior structure of the government" would be "so contriv[ed]" "as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places." (2) By institutionalizing a differentiation between executive and legislative powers (as well as by dividing the legislature into two chambers), the separation of powers would harness political competition into a system of government that would effectively organize, check, balance, and diffuse power. What is more, the system would be self-enforcing, relying on interbranch competition to police institutional boundaries and prevent tyrannical collusion. In the Framers' Newtonian vision, the separation of powers was to be "a machine that would go of itself." (3)
To this day, the idea of self-sustaining political competition built into the structure of government is frequently portrayed as the unique genius of the U. …