http://papers.ssrn.com/sol3/papers.cfm?abstract_id=890105
"Separation of Parties, Not Powers"
Daryl Levinson and Rick Pildes have posted this article
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=890105> on SSRN
(forthcoming Harvard Law Review). Here is the abstract:
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 distinct institutions;
ambition would counteract ambition. To this day, the idea of
building self-sustaining political competition into the structure
of government is frequently portrayed as the unique genius of the
U.S. Constitution and largely credited for the success of American
democracy. Yet the truth is closer to the opposite. The success of
American democracy overwhelmed the branch-based design 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. What the Framers did not count on was the
emergence of robust democratic competition, 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.
Parties quickly came to serve as the primary organizational
vehicle for mobilizing, motivating, and defining the terms of
democratic political competition, creating alliances among
constituents and officeholders that cut across the boundaries
between the branches and undermined Madisonian assumptions of
branch-based competition.
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. 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.
Recognizing that these dynamics will shift from competitive when
government is divided to cooperative when it is unified calls into
question basic assumptions of separation of powers law and theory.
More constructively, re-focusing the separation of powers on
parties casts numerous aspects of constitutional structure,
doctrine, and institutional design in a new and more realistic light.
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