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-