New York University Public Law and Legal Theory Working Papers

Document Type



119 Harv. L. Rev. 2311 (2006)


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, and 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 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 re-envisions 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, refocusing the separation of powers on parties casts numerous aspects of constitutional structure, doctrine, and institutional design in a new and more realistic light.

Date of Authorship for this Version

July 2006