VOLUME 119 JUNE 2006 NUMBER 8 HARVARD LAW REVIEW 2006 by The Harvard Law Review Association ARTICLE SEPARATION OF PARTIES,NOT POWERS Daryl I.Levinson&Richard H.Pildes TABLE OF CONTENTS INTRODUCTION....... .2312 I.FROM BRANCHES TO PARTIES........... 2316 A.Madison and the Mechanisms of Political Competition316 B.Presidential,Parliamentary,and Party Government....... .2325 C.Conclsion Separation of parties2329 II.PARTY UNIFICATION AND DIVISION OF GOVERNMENT330 A.The Past,Present,and Future of Unified and Divided Government.. .2330 I.Unified and Divided Governments... .2330 2.Fragmented and Cohesive Parties.... .2332 B.The Functional Differences Parties Make................ .2338 I.Legislative Efficacy. .2338 2.Executive Accountability...... 2342 III.REENVISIONING,AND REFORMING,THE SEPARATION OF POWERS....................2347 A.Separation-of-powers Law2349 I.Rights and Executive Powers During War and Crisis............... .2349 2.The Administrative State............. .2356 3 Judicial Review2364 B.Democratic Institutional Design....... .2368 I.Minority Opposition Rights. 2368 2.Bureaucracy and the Checking Function... 2375 C.Political Parties and the Law of Democracy. 2379 L.Safe Districting… 2380 2.Primary Election Structures. 2381 3.Internal Legislative Rules... .2383 4.Encouraging Divided Government 2384 CONCLUSION........ 2385 231I
2311 VOLUME 119 JUNE 2006 NUMBER 8 © 2006 by The Harvard Law Review Association ARTICLE SEPARATION OF PARTIES, NOT POWERS Daryl J. Levinson & Richard H. Pildes TABLE OF CONTENTS INTRODUCTION ..........................................................................................................................2312 I. FROM BRANCHES TO PARTIES...........................................................................................2316 A. Madison and the Mechanisms of Political Competition..............................................2316 B. Presidential, Parliamentary, and Party Government ...................................................2325 C. Conclusion: Separation of Parties...................................................................................2329 II. PARTY UNIFICATION AND DIVISION OF GOVERNMENT ...........................................2330 A. The Past, Present, and Future of Unified and Divided Government ........................2330 1. Unified and Divided Governments............................................................................2330 2. Fragmented and Cohesive Parties .............................................................................2332 B. The Functional Differences Parties Make .....................................................................2338 1. Legislative Efficacy......................................................................................................2338 2. Executive Accountability ............................................................................................2342 III. REENVISIONING, AND REFORMING, THE SEPARATION OF POWERS ...................2347 A. Separation-of-Powers Law...............................................................................................2349 1. Rights and Executive Powers During War and Crisis............................................2349 2. The Administrative State ............................................................................................2356 3. Judicial Review.............................................................................................................2364 B. Democratic Institutional Design.....................................................................................2368 1. Minority Opposition Rights ........................................................................................2368 2. Bureaucracy and the Checking Function .................................................................2375 C. Political Parties and the Law of Democracy.................................................................2379 1. Safe Districting .............................................................................................................2380 2. Primary Election Structures........................................................................................2381 3. Internal Legislative Rules ...........................................................................................2383 4. Encouraging Divided Government............................................................................2384 CONCLUSION ...............................................................................................................................2385
SEPARATION OF PARTIES,NOT POWERS Daryl J.Levinson'&Richard H.Pildes** 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. INTRODUCTION escribing a set of“wholly new discoveries'”in the“science of poli- tics"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 con- trivled]""as that its several constituent parts may,by their mutual re- lations,be the means of keeping each other in their proper places."2 By institutionalizing a differentiation between executive and legislative Professor of Law,Harvard Law School. Sudler Family Professor of Constitutional Law,New York University School of Law.Car- negie Scholar 2004. Thanks to Rachel Barkow,Rosalind Dixon,John Ferejohn,Barry Friedman,Jack Gold- smith,David Golove,Don Herzog,Rick Hills,Dan Hulsebosch,Mike Klarman,Lewis Korn- hauser,Liz Magill,Pasquale Pasquino,Jim Ryan.Seana Shiffrin,Matthew Stephenson,Bill Stuntz,Cass Sunstein,Adam Unikowsky,Adrian Vermeule,and participants in workshops and colloquia at Berkeley,Harvard,Minnesota,NYU,and Texas for useful comments on drafts. 1THE FEDERALIST No.9,at 72(Alexander Hamilton)(Clinton Rossiter ed.,1961). 2 THE FEDERALIST No.5I (James Madison),supra note I,at 320. 23I2
2312 SEPARATION OF PARTIES, NOT POWERS Daryl J. Levinson* & Richard H. Pildes** 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. INTRODUCTION escribing 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 ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * Professor of Law, Harvard Law School. ** Sudler Family Professor of Constitutional Law, New York University School of Law. Carnegie Scholar 2004. Thanks to Rachel Barkow, Rosalind Dixon, John Ferejohn, Barry Friedman, Jack Goldsmith, David Golove, Don Herzog, Rick Hills, Dan Hulsebosch, Mike Klarman, Lewis Kornhauser, Liz Magill, Pasquale Pasquino, Jim Ryan, Seana Shiffrin, Matthew Stephenson, Bill Stuntz, Cass Sunstein, Adam Unikowsky, Adrian Vermeule, and participants in workshops and colloquia at Berkeley, Harvard, Minnesota, NYU, and Texas for useful comments on drafts. 1 THE FEDERALIST NO. 9, at 72 (Alexander Hamilton) (Clinton Rossiter ed., 1961). 2 THE FEDERALIST NO. 51 (James Madison), supra note 1, at 320. D
2o06] SEPARATION OF PARTIES,NOT POWERS 23I3 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 dif- fuse power.What is more,the system would be self-enforcing,relying on interbranch competition to police institutional boundaries and pre- vent tyrannical collusion.In the Framers'Newtonian vision,the sepa- ration 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.S.Constitution,the very basis for the success of American democracy.4 Yet the truth is closer to the opposite.The success of American democracy overwhelmed the Madisonian concep- tion of separation of powers almost from the outset,preempting the political dynamics that were supposed to provide each branch with a “will of its own”that would propel departmental“[a]mbition...to counteract ambition."5 The Framers had not anticipated the nature of the democratic competition that would emerge in government and in the electorate.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 nevertheless despised:political parties.As competition between the legislative and executive branches was displaced by competition between two major parties,the machine that was supposed to go of itself stopped running. Few aspects of the founding generation's political theory are now more clearly anachronistic than their vision of legislative-executive separation of powers.Nevertheless,few of the Framers'ideas con- tinue to be taken as literally or sanctified as deeply by courts and con- stitutional scholars as the passages about interbranch relations in Madison's Federalist 51.To this day,Madison's account of rivalrous, 3 MICHAEL KAMMEN,A MACHINE THAT WOULD GO OF ITSELF 17-18(1986)(summa- rizing the use of the "machine"metaphor in constitutional rhetoric of the late eighteenth century) Led by Woodrow Wilson,Progressives later turned this rhetoric back on itself.See WooDRoW WILSON,CONSTITUTIONAL GOVERNMENT IN THE UNITED STATES 54-55(Transaction Publishers 2002)(19o8)("The government of the United States was constructed upon the Whig theory of political dynamics,which was a sort of unconscious copy of the Newtonian theory of the universe.In our own day,whenever we discuss the structure or development of anything, whether in nature or in society,we consciously or unconsciously follow Mr.Darwin;but before Mr.Darwin,they followed Newton."). 4 See,e.g.,Hugh Heclo,What Has Happened to the Separation of Powers?,in SEPARATION OF POWERS AND GOOD GOVERNMENT 131,134 (Bradford P.Wilson Peter W.Schramm eds.,1994)("[TJhe framework of 1787 has proven durable because the dynamics set up in its allo- cations of power have usually operated more or less as intended.");Arthur M.Schlesinger,Jr.,The Constitution and Presidential Leadership,47 MD.L.REV.54,65 (1987)("The separation of pow- ers is the vital means of self-correction in our system."). 5 THE FEDERALIST No.5I (James Madison),supra note I,at 321-22
2006] SEPARATION OF PARTIES, NOT POWERS 2313 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.S. Constitution, the very basis for the success of American democracy.4 Yet the truth is closer to the opposite. The success of American democracy overwhelmed the Madisonian conception of separation of powers almost from the outset, preempting the political dynamics that were supposed to provide each branch with a “will of its own” that would propel departmental “[a]mbition . . . to counteract ambition.”5 The Framers had not anticipated the nature of the democratic competition that would emerge in government and in the electorate. 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 nevertheless despised: political parties. As competition between the legislative and executive branches was displaced by competition between two major parties, the machine that was supposed to go of itself stopped running. Few aspects of the founding generation’s political theory are now more clearly anachronistic than their vision of legislative-executive separation of powers. Nevertheless, 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. To this day, Madison’s account of rivalrous, ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 3 MICHAEL KAMMEN, A MACHINE THAT WOULD GO OF ITSELF 17–18 (1986) (summarizing the use of the “machine” metaphor in constitutional rhetoric of the late eighteenth century). Led by Woodrow Wilson, Progressives later turned this rhetoric back on itself. See WOODROW WILSON, CONSTITUTIONAL GOVERNMENT IN THE UNITED STATES 54–55 (Transaction Publishers 2002) (1908) (“The government of the United States was constructed upon the Whig theory of political dynamics, which was a sort of unconscious copy of the Newtonian theory of the universe. In our own day, whenever we discuss the structure or development of anything, whether in nature or in society, we consciously or unconsciously follow Mr. Darwin; but before Mr. Darwin, they followed Newton.”). 4 See, e.g., Hugh Heclo, What Has Happened to the Separation of Powers?, in SEPARATION OF POWERS AND GOOD GOVERNMENT 131, 134 (Bradford P. Wilson & Peter W. Schramm eds., 1994) (“[T]he framework of 1787 has proven durable because the dynamics set up in its allocations of power have usually operated more or less as intended.”); Arthur M. Schlesinger, Jr., The Constitution and Presidential Leadership, 47 MD. L. REV. 54, 65 (1987) (“The separation of powers is the vital means of self-correction in our system.”). 5 THE FEDERALIST NO. 51 (James Madison), supra note 1, at 321–22
L&P-BOOKPROOFS 09/13/06-11:39PM 23I4 HARVARD LAW REVIEW [Vol.I19:2311 self-interested branches is embraced as an accurate depiction of politi- cal reality and a firm foundation for the constitutional law of separa- tion of powers.In the Madisonian simulacrum of democratic politics embraced by constitutional doctrine and theory,the branches of gov- ernment are personified as political actors with interests and wills of their own,entirely disconnected from the interests and wills of the of- ficials who populate them or the citizens who elect those officials.Act- ing on these interests,the branches purportedly are locked in a perpet- ual struggle to aggrandize their own power and encroach upon their rivals.The kinds of partisan political competition that structure real- world democracy and dominate political discourse,however,are al- most entirely missing from this picture.6 As this Article describes,the invisibility of political parties has left constitutional discourse about separation of powers with no conceptual resources to understand basic features of the American political sys- tem.It has also generated judicial decisions and theoretical rationali- zations that float entirely free of any functional justification grounded in the actual workings of separation of powers.Ignoring the reality of parties and fixating on the paper partitions between the branches,the law and theory of separation of powers is a perfect fit for the govern- ment the Framers designed.Unfortunately,they miss much of the government we actually have. Ironically,one of the few places in constitutional law where parties do appear is in the most celebrated judicial opinion of the separation- of-powers canon,Justice Jackson's concurrence in the Youngstown case.?After laying out his now-familiar tripartite categorization of ex- ecutive action,Justice Jackson went on to emphasize that modern separation-of-powers analysis must understand the powers and moti- vations of the branches of government in light of their relation to po- litical parties: [The]rise of the party system has made a significant extraconstitutional supplement to real executive power.No appraisal of his necessities is real- istic which overlooks that he heads a political system as well as a legal system.Party loyalties and interests,sometimes more binding than law, extend his effective control into branches of government other than his 6 There have been a handful of important,recent exceptions.See,e.g.,MARK TUSHNET, THE NEW CONSTITUTIONAL ORDER (2003)(basing analysis of constitutional structures on the assumption that American government will be divided for years to come);Bruce Ackerman,The New Separation of Powers,I13 HARV.L.REV.633 (2000).Note the "new"in these titles.In an insightful essay,Professor James Gardner makes similar points to some we raise here about the effects of party competition on Madison's vision of separation of powers.See James A.Gardner Democracy Without a Net?Separation of Powers and the Idea of Self-Sustaining Constitutional Constraints on Undemocratic Behavior,79ST.JOHN'S L.REV.293,308 (2005). 7 Youngstown Sheet Tube Co.v.Sawyer,343 U.S.579(1952)
L&P - BOOKPROOFS 09/13/06 – 11:39 PM 2314 HARVARD LAW REVIEW [Vol. 119:2311 self-interested branches is embraced as an accurate depiction of political reality and a firm foundation for the constitutional law of separation of powers. In the Madisonian simulacrum of democratic politics embraced by constitutional doctrine and theory, the branches of government are personified as political actors with interests and wills of their own, entirely disconnected from the interests and wills of the officials who populate them or the citizens who elect those officials. Acting on these interests, the branches purportedly are locked in a perpetual struggle to aggrandize their own power and encroach upon their rivals. The kinds of partisan political competition that structure realworld democracy and dominate political discourse, however, are almost entirely missing from this picture.6 As this Article describes, the invisibility of political parties has left constitutional discourse about separation of powers with no conceptual resources to understand basic features of the American political system. It has also generated judicial decisions and theoretical rationalizations that float entirely free of any functional justification grounded in the actual workings of separation of powers. Ignoring the reality of parties and fixating on the paper partitions between the branches, the law and theory of separation of powers is a perfect fit for the government the Framers designed. Unfortunately, they miss much of the government we actually have. Ironically, one of the few places in constitutional law where parties do appear is in the most celebrated judicial opinion of the separationof-powers canon, Justice Jackson’s concurrence in the Youngstown case.7 After laying out his now-familiar tripartite categorization of executive action, Justice Jackson went on to emphasize that modern separation-of-powers analysis must understand the powers and motivations of the branches of government in light of their relation to political parties: [The] rise of the party system has made a significant extraconstitutional supplement to real executive power. No appraisal of his necessities is realistic which overlooks that he heads a political system as well as a legal system. Party loyalties and interests, sometimes more binding than law, extend his effective control into branches of government other than his ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 6 There have been a handful of important, recent exceptions. See, e.g., MARK TUSHNET, THE NEW CONSTITUTIONAL ORDER (2003) (basing analysis of constitutional structures on the assumption that American government will be divided for years to come); Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633 (2000). Note the “new” in these titles. In an insightful essay, Professor James Gardner makes similar points to some we raise here about the effects of party competition on Madison’s vision of separation of powers. See James A. Gardner, Democracy Without a Net? Separation of Powers and the Idea of Self-Sustaining Constitutional Constraints on Undemocratic Behavior, 79 ST. JOHN’S L. REV. 293, 308 (2005). 7 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
2006] SEPARATION OF PARTIES,NOT POWERS 23I5 own and he often may win,as a political leader,what he cannot command under the Constitution.8 Justice Jackson astutely recognized that the separation of powers no longer works as originally envisioned because interbranch dynamics have changed with the rise of political parties,which in Youngstown had diminished the incentives of Congress to monitor and check the President.Yet this part of Justice Jackson's opinion has been ignored entirely.Even after decades of dissecting Justice Jackson's Youngs- town opinion,neither the Supreme Court nor any other federal court has ever quoted this critical insight,nor has it received much notice by legal scholars.Justice Jackson's sophisticated realism about the workings of government is widely admired by constitutional lawyers, but his most penetrating realist insight-recognizing party competi- tion as a central mechanism driving the institutional behavior that separation-of-powers law aims to regulate-has been missed. This Article seeks to recover and build upon Justice Jackson's in- sight,reenvisioning the law and theory of separation of powers by viewing it through the lens of party competition.We emphasize that the degree and kind of competition between the legislative and execu- tive branches vary significantly,and may all but disappear,depending on whether the House,Senate,and presidency are divided or unified by political party.The practical distinction between party-divided and party-unified government rivals in significance,and often dominates, the constitutional distinction between the branches in predicting and explaining interbranch political dynamics.Recognizing that these dy- namics shift from competitive when government is divided to coopera- tive when it is unified calls into question many of the foundational as- sumptions of separation-of-powers law and theory.It also allows us to see numerous aspects of legal doctrine,constitutional structure,com- parative constitutionalism,and institutional design in a new and more realistic light. The Article proceeds as follows.Part I lays out the conceptual case for switching the focus of separation of powers from branches to par- ties,arguing that political competition in government often tracks party lines more than branch ones.Recognizing that party competi- tion can either create or dissolve interbranch competition,depending on whether government is unified or divided by party,suggests that the United States has not one system of separation of powers but (at least)two.Part II looks more closely at these dual-party-divided 8 Id.at 654 (Jackson,J.,concurring). 9 It is cited,in passing,in two law review articles.See Norman C.Bay,Executive Power and the War on Terror,83 DENV.U.L.REV.335,345 (2005);Linda S.Greene,After the Imperial Presidency,47 MD.L.REV.99,106 (1987)
2006] SEPARATION OF PARTIES, NOT POWERS 2315 own and he often may win, as a political leader, what he cannot command under the Constitution.8 Justice Jackson astutely recognized that the separation of powers no longer works as originally envisioned because interbranch dynamics have changed with the rise of political parties, which in Youngstown had diminished the incentives of Congress to monitor and check the President. Yet this part of Justice Jackson’s opinion has been ignored entirely. Even after decades of dissecting Justice Jackson’s Youngstown opinion, neither the Supreme Court nor any other federal court has ever quoted this critical insight, nor has it received much notice by legal scholars.9 Justice Jackson’s sophisticated realism about the workings of government is widely admired by constitutional lawyers, but his most penetrating realist insight — recognizing party competition as a central mechanism driving the institutional behavior that separation-of-powers law aims to regulate — has been missed. This Article seeks to recover and build upon Justice Jackson’s insight, reenvisioning the law and theory of separation of powers by viewing it through the lens of party competition. We emphasize that the degree and kind of competition between the legislative and executive branches vary significantly, and may all but disappear, depending on whether the House, Senate, and presidency are divided or unified by political party. The practical distinction between party-divided and party-unified government rivals in significance, and often dominates, the constitutional distinction between the branches in predicting and explaining interbranch political dynamics. Recognizing that these dynamics shift from competitive when government is divided to cooperative when it is unified calls into question many of the foundational assumptions of separation-of-powers law and theory. It also allows us to see numerous aspects of legal doctrine, constitutional structure, comparative constitutionalism, and institutional design in a new and more realistic light. The Article proceeds as follows. Part I lays out the conceptual case for switching the focus of separation of powers from branches to parties, arguing that political competition in government often tracks party lines more than branch ones. Recognizing that party competition can either create or dissolve interbranch competition, depending on whether government is unified or divided by party, suggests that the United States has not one system of separation of powers but (at least) two. Part II looks more closely at these dual — party-divided ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 8 Id. at 654 (Jackson, J., concurring). 9 It is cited, in passing, in two law review articles. See Norman C. Bay, Executive Power and the War on Terror, 83 DENV. U. L. REV. 335, 345 (2005); Linda S. Greene, After the Imperial Presidency, 47 MD. L. REV. 99, 106 (1987)
L&P-BOOKPROOFS 09/13/06-11:39PM 23I6 HARVARD LAW REVIEW [Vol.119:2311 and party-unified-models of separation of powers and traces the history of divided and unified government in this country,including the historical variation in the coherence and polarization of the two major parties,which has significantly affected how the models work in practice.In particular,Part II emphasizes that the emergence of ex- ceptionally strong and polarized parties in recent decades has exagger- ated the functional differences between divided and unified govern- ment,with important implications for the normative aspirations of separation of powers. Part III turns to implications for both constitutional law and de- mocratic institutional design.With respect to constitutional law,Part III shows where conventional separation-of-powers analysis-based on the Madisonian model of inherently competitive branches checking and balancing one another-goes astray.The greatest threat to con- stitutional law's conventional understanding of,and normative goals for,separation of powers comes when government is unified and inter- branch political dynamics shift from competitive to cooperative.Part III then takes up the challenge of imagining how law and political in- stitutions might be reformed to restore the checks and balances that party unification undermines.In part,it does so by pursuing a strat- egy of institutional design,borrowing the idea of "opposition rights" from European parliamentary democracies to suggest avenues for rec- reating party competition within government institutions and revisit- ing the Progressive vision of a depoliticized bureaucracy as the "fourth branch"of government.Part III also explores the possibility of a more direct approach to the problem of strongly unified government:frag- menting,or moderating,the political parties themselves.In doing so, it brings us full circle,back to the Article's animating recognition that the law and politics of separation of powers are continuous with,and inseparable from,the law and politics of democracy. I.FROM BRANCHES TO PARTIES A.Madison and the Mechanisms of Political Competition According to the political theory of the Framers,"the great problem to be solved"was to design governance institutions that would afford "practical security"against the excessive concentration of political power.10 Constitutional provisions specifying limited domains of le- gitimate authority were of minimal utility,for,as Madison explained, "a mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroach- 10 THE FEDERALIST NO.48 (James Madison),supra note I,at 308
L&P - BOOKPROOFS 09/13/06 – 11:39 PM 2316 HARVARD LAW REVIEW [Vol. 119:2311 and party-unified — models of separation of powers and traces the history of divided and unified government in this country, including the historical variation in the coherence and polarization of the two major parties, which has significantly affected how the models work in practice. In particular, Part II emphasizes that the emergence of exceptionally strong and polarized parties in recent decades has exaggerated the functional differences between divided and unified government, with important implications for the normative aspirations of separation of powers. Part III turns to implications for both constitutional law and democratic institutional design. With respect to constitutional law, Part III shows where conventional separation-of-powers analysis — based on the Madisonian model of inherently competitive branches checking and balancing one another — goes astray. The greatest threat to constitutional law’s conventional understanding of, and normative goals for, separation of powers comes when government is unified and interbranch political dynamics shift from competitive to cooperative. Part III then takes up the challenge of imagining how law and political institutions might be reformed to restore the checks and balances that party unification undermines. In part, it does so by pursuing a strategy of institutional design, borrowing the idea of “opposition rights” from European parliamentary democracies to suggest avenues for recreating party competition within government institutions and revisiting the Progressive vision of a depoliticized bureaucracy as the “fourth branch” of government. Part III also explores the possibility of a more direct approach to the problem of strongly unified government: fragmenting, or moderating, the political parties themselves. In doing so, it brings us full circle, back to the Article’s animating recognition that the law and politics of separation of powers are continuous with, and inseparable from, the law and politics of democracy. I. FROM BRANCHES TO PARTIES A. Madison and the Mechanisms of Political Competition According to the political theory of the Framers, “the great problem to be solved” was to design governance institutions that would afford “practical security” against the excessive concentration of political power.10 Constitutional provisions specifying limited domains of legitimate authority were of minimal utility, for, as Madison explained, “a mere demarcation on parchment of the constitutional limits of the several departments is not a sufficient guard against those encroach- ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 10 THE FEDERALIST NO. 48 (James Madison), supra note 1, at 308
2o06] SEPARATION OF PARTIES,NOT POWERS 23I7 ments which lead to a tyrannical concentration of all the powers of government in the same hands."11 The solution to this great problem was,instead,to link the power-seeking motives of public officials to the interests of their branches.By giving "those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others,"the Framers hoped to create a system in which competition for power among the branches would constrain each safely within its bounds.12 With multiple government departments pitted against each other in a competition for power,an invisible-hand dynamic might prevail in which"[almbition [would]be made to counteract ambition.13 Madison's vision of competitive branches balancing and checking one another has dominated constitutional thought about the separation of powers through the present.Yet it has never been clear exactly how the Madisonian machine was supposed to operate.14 Particularly puz- zling is Madison's personification of political institutions,his hope that each branch might come to possess "a will of its own."15 If branches of government pursued their own interests,and if these interests were similar to the power-mongering interests that the Framers attributed to individual political actors,then branches might indeed compete with one another for power.But of course,government institutions do not have wills or interests of their own;their behavior is a product of the wills or interests that motivate the individual officials who compose them.Madison saw the need for a linkage between "the interest of the man"and "the constitutional rights of the place,"16 but he never pro- vided a mechanism by which the interests of actual public officials would be channeled into maintaining the proper role for their respec- tive branches.17 From the modern perspective of consolidated democracy,it is hard to see how such a mechanism would arise.Even assuming,with the founding generation,that officeholders are driven by a "lust for self- 11 Id.at 313. 12 THE FEDERALIST No.5I (James Madison),supra note 1,at 321-22. 131d.at322. 14 See M.Elizabeth Magill,The Real Separation in Separation of Powers Law,86 VA.L.REV. II27,I158 (2o00)("Just how tension and competition [between the branches]are created and maintained is never clearly spelled out by courts or commentators."). 15 THE FEDERALIST No.5I (James Madison),supra note 1,at 321. 16Id.at322. 17 See JACK N.RAKOVE,ORIGINAL MEANINGS:POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 282 (1996)("Federalist 5r does not so much explain how these ambi- tions will work as assume that differences in election and tenure among the branches will foster the desired attachment....")
2006] SEPARATION OF PARTIES, NOT POWERS 2317 ments which lead to a tyrannical concentration of all the powers of government in the same hands.”11 The solution to this great problem was, instead, to link the power-seeking motives of public officials to the interests of their branches. By giving “those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others,” the Framers hoped to create a system in which competition for power among the branches would constrain each safely within its bounds.12 With multiple government departments pitted against each other in a competition for power, an invisible-hand dynamic might prevail in which “[a]mbition [would] be made to counteract ambition.”13 Madison’s vision of competitive branches balancing and checking one another has dominated constitutional thought about the separation of powers through the present. Yet it has never been clear exactly how the Madisonian machine was supposed to operate.14 Particularly puzzling is Madison’s personification of political institutions, his hope that each branch might come to possess “a will of its own.”15 If branches of government pursued their own interests, and if these interests were similar to the power-mongering interests that the Framers attributed to individual political actors, then branches might indeed compete with one another for power. But of course, government institutions do not have wills or interests of their own; their behavior is a product of the wills or interests that motivate the individual officials who compose them. Madison saw the need for a linkage between “the interest of the man” and “the constitutional rights of the place,”16 but he never provided a mechanism by which the interests of actual public officials would be channeled into maintaining the proper role for their respective branches.17 From the modern perspective of consolidated democracy, it is hard to see how such a mechanism would arise. Even assuming, with the founding generation, that officeholders are driven by a “lust for self- ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 11 Id. at 313. 12 THE FEDERALIST NO. 51 (James Madison), supra note 1, at 321–22. 13 Id. at 322. 14 See M. Elizabeth Magill, The Real Separation in Separation of Powers Law, 86 VA. L. REV. 1127, 1158 (2000) (“Just how tension and competition [between the branches] are created and maintained is never clearly spelled out by courts or commentators.”). 15 THE FEDERALIST NO. 51 (James Madison), supra note 1, at 321. 16 Id. at 322. 17 See JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 282 (1996) (“Federalist 51 does not so much explain how these ambitions will work as assume that differences in election and tenure among the branches will foster the desired attachment . . . .”)
L&P-BOOKPROOFS 09/13/06-11:39PM 23I8 HARVARD LAW REVIEW [Vol.I19:2311 aggrandizement,"1s the structure of democratic politics effectively channels those ambitions into a different set of activities that has noth- ing to do with aggrandizing their departments or defending them against encroachments.Individual politicians gain and exercise power by winning competitive elections and effectuating political or ideologi- cal goals.Neither of these objectives correlates in any obvious way with the interests or power of branches of government as such.Madi- son's will-based theory of separation of powers would seem to require government officials who care more about the intrinsic interests of their departments than their personal interests or the interests of the citizens they represent.Democratic politics is unlikely to generate such officials.19 The founding generation's assumptions about the workings of rep- resentative democracy may help account for Madison's optimism. First,elections were not then conceived as the competitive contests they soon became.Instead,they were understood and practiced largely as matters of acclamation,focusing on personal qualities more than issues and interests and primarily serving to ratify existing social and political hierarchies.z0 George Washington's assumption of the presidency is a paradigmatic example.Second,to the extent political issues were discussed,it was in the civic republican vocabulary of dis- interested concern for the common good,shunning explicit appeals to interest.21 With large election districts for the House and indirect elec- tion of the Senate and President providing further insulation from the self-interested demands of constituents,it was possible to envision of- ficeholders who would "refine and enlarge the public views"and whose "wisdom [might]best discern the true interest of their coun- try."22 In this kind of political,or apolitical,world,it was possible to imagine that,once elected,officeholders would not be tempted by con- stituent pressures and competing ideological or policy goals to sacrifice 18 BERNARD BAILYN,THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 59 (1967);see also id.at 56-59. 19 For a fuller explanation,see Daryl I.Levinson,Empire-Building Government in Constitu- tional Law,118 HARV.L.REV.915 (2005). 20 See ROBERT H.WIEBE,SELF-RULE:A CULTURAL HISTORY OF AMERICAN DEMOCRACY 29(1995).For a social and political history of transformations in the meaning and significance of elections,focused on the gradual emergence of competitive elections in England, see MARK A.KISHLANSKY,PARLIAMENTARY SELECTION:SOCIAL AND POLITICAL CHOICE IN EARLY MODERN ENGLAND(1986).For a theoretical account of the social and political sig- nificance of this shift in the way elections were understood and practiced,see DON HERZOG, HAPPY SLAVES:A CRITIQUE OF CONSENT THEORY 197-98(1989). 21 See GORDON S.WOOD,THE RADICALISM OF THE AMERICAN REVOLUTION 294 (1991) (describing the transformation from a democracy of civic virtue in the late eighteenth century to the Jacksonian democracy of the I82os,in which pursuit of more particularistic interests,ex- pressed through partisanship and organized by parties,became widely accepted and legitimated). 22 THE FEDERALIST NO.Io (James Madison),supra note 1,at 82
L&P - BOOKPROOFS 09/13/06 – 11:39 PM 2318 HARVARD LAW REVIEW [Vol. 119:2311 aggrandizement,”18 the structure of democratic politics effectively channels those ambitions into a different set of activities that has nothing to do with aggrandizing their departments or defending them against encroachments. Individual politicians gain and exercise power by winning competitive elections and effectuating political or ideological goals. Neither of these objectives correlates in any obvious way with the interests or power of branches of government as such. Madison’s will-based theory of separation of powers would seem to require government officials who care more about the intrinsic interests of their departments than their personal interests or the interests of the citizens they represent. Democratic politics is unlikely to generate such officials.19 The founding generation’s assumptions about the workings of representative democracy may help account for Madison’s optimism. First, elections were not then conceived as the competitive contests they soon became. Instead, they were understood and practiced largely as matters of acclamation, focusing on personal qualities more than issues and interests and primarily serving to ratify existing social and political hierarchies.20 George Washington’s assumption of the presidency is a paradigmatic example. Second, to the extent political issues were discussed, it was in the civic republican vocabulary of disinterested concern for the common good, shunning explicit appeals to interest.21 With large election districts for the House and indirect election of the Senate and President providing further insulation from the self-interested demands of constituents, it was possible to envision officeholders who would “refine and enlarge the public views” and whose “wisdom [might] best discern the true interest of their country.”22 In this kind of political, or apolitical, world, it was possible to imagine that, once elected, officeholders would not be tempted by constituent pressures and competing ideological or policy goals to sacrifice ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 18 BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 59 (1967); see also id. at 56–59. 19 For a fuller explanation, see Daryl J. Levinson, Empire-Building Government in Constitutional Law, 118 HARV. L. REV. 915 (2005). 20 See ROBERT H. WIEBE, SELF-RULE: A CULTURAL HISTORY OF AMERICAN DEMOCRACY 29 (1995). For a social and political history of transformations in the meaning and significance of elections, focused on the gradual emergence of competitive elections in England, see MARK A. KISHLANSKY, PARLIAMENTARY SELECTION: SOCIAL AND POLITICAL CHOICE IN EARLY MODERN ENGLAND (1986). For a theoretical account of the social and political significance of this shift in the way elections were understood and practiced, see DON HERZOG, HAPPY SLAVES: A CRITIQUE OF CONSENT THEORY 197–98 (1989). 21 See GORDON S. WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION 294 (1991) (describing the transformation from a democracy of civic virtue in the late eighteenth century to the Jacksonian democracy of the 1820s, in which pursuit of more particularistic interests, expressed through partisanship and organized by parties, became widely accepted and legitimated). 22 THE FEDERALIST NO. 10 (James Madison), supra note 1, at 82
2o06] SEPARATION OF PARTIES,NOT POWERS 23I9 the constitutionally assigned duties and powers of their branches- simply because constituent pressures and divergent interests were kept to a minimum. Less optimistically,the founding generation also had good reason to doubt whether representative democracy would work at all and,con- sequently,good reason to fear that government officials would pursue interests entirely disconnected not just from those of their nominal constituents,but from the public good as well.Madison's scheme for pitting competing branches against one another may have been meant only as a fail-safe,in case Antifederalist fears of radical democratic failure came to pass.If one branch fell under the control of a would- be monarch or tyrannical cabal,the other branches might provide a check by using their constitutional powers to block oppressive meas- ures or,as the founding generation vividly recalled from the English Civil War,by leading an opposing army to fight for control of the state.23 In the worst-case scenario,better to be ruled by several war- ring tyrants than a single omnipotent one.For the Federalist Framers, however,this kind of figurative and literal interbranch warfare was meant only as an "auxiliary precaution[."24 The "primary control on the government"would be its "dependence on the people,"25 which would link the political self-interest of legislators to the interests of the voters who determined their professional fates.26 If representative de- mocracy worked as the Framers hoped,in other words,competition for power among the branches would be replaced by competition for power among politicians and groups of constituents. In fact,this is just what happened:Madison's design was eclipsed almost from the outset by the emergence of robust democratic political competition.Rather than tying their ambitions to the constitutional duties or power base of their departments,officials responded to the material incentives of democratic politics in ways that now seem natu- ral and inevitable:by forming incipient organizations that took sides on contested policy and ideological issues and by competing to marshal support for their agendas.These efforts led inexorably,though halt- ingly,to the organization of enduring parties that would facilitate alli- ances among groups of like-minded elected officials and politically mobilized citizens on a national scale. 23 See Gardner,supra note 6,at 3002(presenting and elaborating on this understanding of separation of powers as a constitutional "backup"system in case democracy failed). 24 THE FEDERALIST NO.5I (James Madison),supra note I,at 322. 251d. 26 See THE FEDERALIST No.72 (Alexander Hamilton),supra note 1,at 437 (arguing that representatives'hopes of "obtaining,by meriting,a continuance"in office would "make their in- terest coincide with their duty"to represent the best interests of their constituents)
2006] SEPARATION OF PARTIES, NOT POWERS 2319 the constitutionally assigned duties and powers of their branches — simply because constituent pressures and divergent interests were kept to a minimum. Less optimistically, the founding generation also had good reason to doubt whether representative democracy would work at all and, consequently, good reason to fear that government officials would pursue interests entirely disconnected not just from those of their nominal constituents, but from the public good as well. Madison’s scheme for pitting competing branches against one another may have been meant only as a fail-safe, in case Antifederalist fears of radical democratic failure came to pass. If one branch fell under the control of a wouldbe monarch or tyrannical cabal, the other branches might provide a check by using their constitutional powers to block oppressive measures or, as the founding generation vividly recalled from the English Civil War, by leading an opposing army to fight for control of the state.23 In the worst-case scenario, better to be ruled by several warring tyrants than a single omnipotent one. For the Federalist Framers, however, this kind of figurative and literal interbranch warfare was meant only as an “auxiliary precaution[].”24 The “primary control on the government” would be its “dependence on the people,”25 which would link the political self-interest of legislators to the interests of the voters who determined their professional fates.26 If representative democracy worked as the Framers hoped, in other words, competition for power among the branches would be replaced by competition for power among politicians and groups of constituents. In fact, this is just what happened: Madison’s design was eclipsed almost from the outset by the emergence of robust democratic political competition. Rather than tying their ambitions to the constitutional duties or power base of their departments, officials responded to the material incentives of democratic politics in ways that now seem natural and inevitable: by forming incipient organizations that took sides on contested policy and ideological issues and by competing to marshal support for their agendas. These efforts led inexorably, though haltingly, to the organization of enduring parties that would facilitate alliances among groups of like-minded elected officials and politically mobilized citizens on a national scale. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 23 See Gardner, supra note 6, at 300–02 (presenting and elaborating on this understanding of separation of powers as a constitutional “backup” system in case democracy failed). 24 THE FEDERALIST NO. 51 (James Madison), supra note 1, at 322. 25 Id. 26 See THE FEDERALIST NO. 72 (Alexander Hamilton), supra note 1, at 437 (arguing that representatives’ hopes of “obtaining, by meriting, a continuance” in office would “make their interest coincide with their duty” to represent the best interests of their constituents)
L&P-BOOKPROOFS 09/13/06-11:39PM 2320 HARVARD LAW REVIEW [Vol.I19:2311 The idea of political parties,representing institutionalized divisions of interest,was famously anathema to the Framers,as it had long been in Western political thought.27 Equating parties with nefarious "fac- tions,"the Framers had attempted to design a "Constitution Against Parties."2s But the futility of this effort quickly became apparent.By the end of the first Congress,it had become clear that political compe- tition organized around issues and programs had the potential to di- vide coalitions of officeholders and cut through the constitutional boundaries between the branches.The earliest efforts toward alliance formation were initiated by Treasury Secretary Alexander Hamilton, who in I7go began to recruit members of Congress to forge a coalition in favor of his economic development program.His leading congres- sional opponent,James Madison,joined with Thomas Jefferson to or- ganize opposition.As the political battle in Congress intensified,both sides recognized the need to cultivate public support.By the 1796 elections,Federalists and Republicans had coalesced into competing groupings,with party leaders controlling nominations and,at least in some states,rudimentary party machinery organizing campaigns fo- cused more on issues and platforms than on the local stature of the candidates.29 When Congress convened in 1797,its members were clearly identified as Federalist or Republican and regularly voted along those lines.The precursors of the modern political parties had taken root,planted by the very Framers who had authored a Constitu- tion against them.30 To be sure,the early organizations,caucuses,and proto-parties were organized with regret and regarded as temporary expediencies that would fade when the urgent need to defeat a treasonous enemy had passeds1-as they did,to some extent,after the collapse of the Federalist Party inaugurated the "Era of Good Feelings."32 The Jack- 27 For a superb summary of the antiparty tradition that undergirded the Constitution,see GERALD LEONARD,THE INVENTION OF PARTY POLITICS 18-50(2002). 28 See RICHARD HOFSTADTER,THE IDEA OF A PARTY SYSTEM:THE RISE OF LEGITIMATE OPPOSITION IN THE UNITED STATES,1780-1840,at 40(1969). 29 This story is told in more detail in Larry D.Kramer,After the Founding:Political Parties and the Constitution 82-181(May 2003)(unpublished manuscript,on file with the Harvard Law School Library). 30 This is an oft-noted irony in American history.See,e.g.,BRUCE ACKERMAN,THE FAIL- URE OF THE FOUNDING FATHERS 16-26(2005). 31 See RICHARD BUEL,JR.,AMERICA ON THE BRINK:HOW THE POLITICAL STRUGGLE OVER THE WAR OF I812 ALMOST DESTROYED THE YOUNG REPUBLIC 4(2005)("N]ational politics in the early Republic was a gentry preserve dominated by men schooled in factional in- stead of party politics.");RON CHERNOW,ALEXANDER HAMILTON 392 (2004)("[T]he inchoate party system [was][olnly loosely united by ideology and sectional loyalties...[and]can seem to modern eyes more like amorphous personality cults.");LEONARD,supra note 27,at 30-31. 32 Cf.Theodore J.Lowi,President Congress:What the Two-Party Duopoly Has Done to the American Separation of Powers,47 CASE W.RES.L.REV.1219,1221-22 (1997)("The so-called Era of Good Feelings (1808-1828)...gave America its first experience with genuine party gov-
L&P - BOOKPROOFS 09/13/06 – 11:39 PM 2320 HARVARD LAW REVIEW [Vol. 119:2311 The idea of political parties, representing institutionalized divisions of interest, was famously anathema to the Framers, as it had long been in Western political thought.27 Equating parties with nefarious “factions,” the Framers had attempted to design a “Constitution Against Parties.”28 But the futility of this effort quickly became apparent. By the end of the first Congress, it had become clear that political competition organized around issues and programs had the potential to divide coalitions of officeholders and cut through the constitutional boundaries between the branches. The earliest efforts toward alliance formation were initiated by Treasury Secretary Alexander Hamilton, who in 1790 began to recruit members of Congress to forge a coalition in favor of his economic development program. His leading congressional opponent, James Madison, joined with Thomas Jefferson to organize opposition. As the political battle in Congress intensified, both sides recognized the need to cultivate public support. By the 1796 elections, Federalists and Republicans had coalesced into competing groupings, with party leaders controlling nominations and, at least in some states, rudimentary party machinery organizing campaigns focused more on issues and platforms than on the local stature of the candidates.29 When Congress convened in 1797, its members were clearly identified as Federalist or Republican and regularly voted along those lines. The precursors of the modern political parties had taken root, planted by the very Framers who had authored a Constitution against them.30 To be sure, the early organizations, caucuses, and proto-parties were organized with regret and regarded as temporary expediencies that would fade when the urgent need to defeat a treasonous enemy had passed31 — as they did, to some extent, after the collapse of the Federalist Party inaugurated the “Era of Good Feelings.”32 The Jack- ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 27 For a superb summary of the antiparty tradition that undergirded the Constitution, see GERALD LEONARD, THE INVENTION OF PARTY POLITICS 18–50 (2002). 28 See RICHARD HOFSTADTER, THE IDEA OF A PARTY SYSTEM: THE RISE OF LEGITIMATE OPPOSITION IN THE UNITED STATES, 1780–1840, at 40 (1969). 29 This story is told in more detail in Larry D. Kramer, After the Founding: Political Parties and the Constitution 82–181 (May 2003) (unpublished manuscript, on file with the Harvard Law School Library). 30 This is an oft-noted irony in American history. See, e.g., BRUCE ACKERMAN, THE FAILURE OF THE FOUNDING FATHERS 16–26 (2005). 31 See RICHARD BUEL, JR., AMERICA ON THE BRINK: HOW THE POLITICAL STRUGGLE OVER THE WAR OF 1812 ALMOST DESTROYED THE YOUNG REPUBLIC 4 (2005) (“[N]ational politics in the early Republic was a gentry preserve dominated by men schooled in factional instead of party politics.”); RON CHERNOW, ALEXANDER HAMILTON 392 (2004) (“[T]he inchoate party system [was] [o]nly loosely united by ideology and sectional loyalties . . . [and] can seem to modern eyes more like amorphous personality cults.”); LEONARD, supra note 27, at 30–31. 32 Cf. Theodore J. Lowi, President v. Congress: What the Two-Party Duopoly Has Done to the American Separation of Powers, 47 CASE W. RES. L. REV. 1219, 1221–22 (1997) (“The so-called Era of Good Feelings (1808–1828) . . . gave America its first experience with genuine party gov-
