《中国宪法学 Chinese Constitutional Law》课程教学资源（学术文献）HARVARD LAW REVIEW（Seperation of Parties, Not Powers）

2o06] SEPARATION OF PARTIES,NOT POWERS 232I sonian period,however,brought lasting recognition and acceptance of a "party system"of democratic politics:an ongoing competition,as Professor Richard Hofstadter later defined it,between stable,organ- ized parties,alternating power and control within shared acceptance of a constitutional framework.33 Acceptance of this idea has rightly been called a "revolution in political structure [that]lies at the foundation of modernity."34 At the very least,the rise of partisan politics worked a revolution in the American system of separation of powers,radically realigning the incentives of politicians and officeholders.As an initial example,con- sider the role of parties in transforming the presidency into a genuinely independent counterweight to Congress.During the country's first forty years or so,a chasm emerged between the predicted and actual effects of the constitutional design on the President's capacity to stand apart from Congress.The Framers had specifically rejected congres- sional appointment of the President on the ground that making the President reliant on congressional support would deny him the requi- site independence.35 Yet after Washington's presidency,party caucuses in Congress quickly became the mechanism for identifying and select- ing credible presidential candidates.The rise of legislative parties as gatekeepers for the presidency,together with the expectation that elec- tions would often be decided in the House of Representatives (as they were in two of the four open-seat presidential elections from I8oo to 1824),meant that Congress played a major role in selecting the Presi- dent.36 As a result,the American government effectively operated for much of its first forty years with a congressionally dominated fusion of legislative and executive powers.37 So much for Madison's prediction ernment-which means one-party government with occasional alternation of which party gov- erns."). 33 HoFsTADTER,supra note 28,at 4-5.For a portrayal of the interrelated development of the practices and ideas that eventually produced widespread acceptance of political party compe- tition as the natural,appropriate condition of democracy,see LEONARD,supra note 27. 34 LEONARD,supra note 27,at 1.By the Jacksonian period,even Madison's views about the desirability,as opposed to mere necessity,of parties seemed to have softened.Madison had fa- mously equated political parties with factions,not just in writing Federalist No.ro,but through- out the early battles between Federalists and Republicans.Yet by 182I he had seemingly come to the view that parties were "a natural offspring of Freedom."3 THE RECORDS OF THE FEDER- AL CONVENTION OF 1787,at 452(Max Farrand ed.,rev.ed.1966). 35 RAKOVE,supra note 17,at 259.Both the Virginia and New Jersey plans had provided for election of the President by Congress,and the Constitutional Convention initially endorsed such a system.See EDWARD S.CORWIN,THE PRESIDENT:OFFICE AND POWERS,1787-1957,at 12- 13 (4th rev.ed.1957). 36 See CoRWIN,supra note 35,at 19. 37 See Lowi,supra note 32,at 121-2("Little of this bore any resemblance to the Constitu- tions's design,except perhaps the separate names for the three separate Branches.");see also MARSHALL SMELSER,THE DEMOCRATIC REPUBLIC,I801-1815,at 318(1968)("The rise of the congressional nominating caucus was a principal cause of the decline of presidential power

2006] SEPARATION OF PARTIES, NOT POWERS 2321 sonian period, however, brought lasting recognition and acceptance of a “party system” of democratic politics: an ongoing competition, as Professor Richard Hofstadter later defined it, between stable, organ￾ized parties, alternating power and control within shared acceptance of a constitutional framework.33 Acceptance of this idea has rightly been called a “revolution in political structure [that] lies at the foundation of modernity.”34 At the very least, the rise of partisan politics worked a revolution in the American system of separation of powers, radically realigning the incentives of politicians and officeholders. As an initial example, con￾sider the role of parties in transforming the presidency into a genuinely independent counterweight to Congress. During the country’s first forty years or so, a chasm emerged between the predicted and actual effects of the constitutional design on the President’s capacity to stand apart from Congress. The Framers had specifically rejected congres￾sional appointment of the President on the ground that making the President reliant on congressional support would deny him the requi￾site independence.35 Yet after Washington’s presidency, party caucuses in Congress quickly became the mechanism for identifying and select￾ing credible presidential candidates. The rise of legislative parties as gatekeepers for the presidency, together with the expectation that elec￾tions would often be decided in the House of Representatives (as they were in two of the four open-seat presidential elections from 1800 to 1824), meant that Congress played a major role in selecting the Presi￾dent.36 As a result, the American government effectively operated for much of its first forty years with a congressionally dominated fusion of legislative and executive powers.37 So much for Madison’s prediction ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ernment — which means one-party government with occasional alternation of which party gov￾erns.”). 33 HOFSTADTER, supra note 28, at 4–5. For a portrayal of the interrelated development of the practices and ideas that eventually produced widespread acceptance of political party compe￾tition as the natural, appropriate condition of democracy, see LEONARD, supra note 27. 34 LEONARD, supra note 27, at 1. By the Jacksonian period, even Madison’s views about the desirability, as opposed to mere necessity, of parties seemed to have softened. Madison had fa￾mously equated political parties with factions, not just in writing Federalist No. 10, but through￾out the early battles between Federalists and Republicans. Yet by 1821 he had seemingly come to the view that parties were “a natural offspring of Freedom.” 3 THE RECORDS OF THE FEDER￾AL CONVENTION OF 1787, at 452 (Max Farrand ed., rev. ed. 1966). 35 RAKOVE, supra note 17, at 259. Both the Virginia and New Jersey plans had provided for election of the President by Congress, and the Constitutional Convention initially endorsed such a system. See EDWARD S. CORWIN, THE PRESIDENT: OFFICE AND POWERS, 1787–1957, at 12– 13 (4th rev. ed. 1957). 36 See CORWIN, supra note 35, at 19. 37 See Lowi, supra note 32, at 1221–22 (“Little of this bore any resemblance to the Constitu￾tions’s design, except perhaps the separate names for the three separate Branches.”); see also MARSHALL SMELSER, THE DEMOCRATIC REPUBLIC, 1801–1815, at 318 (1968) (“The rise of the congressional nominating caucus was a principal cause of the decline of presidential power

L&P-BOOKPROOFS 09/13/06-11:39PM 2322 HARVARD LAW REVIEW [Vol.I19:2311 that separated powers would create checks and balances by joining "the interest of the man"with "the constitutional rights of the place."ss The political interests of the man who held the presidency,it turned out,had little to do with furthering some abstract conception of the presidency's proper role,but were instead rooted in the necessity of winning and keeping office.Presidents maximized their political pros- pects not by creating an independent "will"for the executive branch or competing with Congress for power,but instead by acquiescing in con- gressionally dominated government. Not until the presidency of Andrew Jackson did American govern- ment begin to resemble in practice the Madisonian system of separa- tion of powers that existed on paper.Jackson was the first President to circumvent Congress by appealing directly to the people,claiming that his office embodied the American people as a whole.His revolu- tionary use of the veto backed up this claim.39 As a leading historian of the presidency puts it,for the first time the presidency "was thrust forward as one of three egual departments of government,and to each and every of its powers was imparted new scope,new vitality."40 The inauguration of the independent presidency under Jackson was made possible by two institutional changes,both emerging from the invention of political parties.First,Martin Van Buren's creation of the mass-scale political party generated pressure for popular control over presidential nominations,leading to the replacement of the con- gressional caucus system by national nominating conventions as of 1832.41 Second,the Democratic Party's novel practice of running presidential electors pledged in advance to vote for particular candi- and made the President,in a sense,the creation of Congress.").Thus,the Presidents holding of- fice between Washington and Jackson vetoed only eight bills,with seven vetoed by Madison.See Office of the Clerk.U.S.House of Representatives.Presidential Vetoes,http://clerk house.gov/ histHigh/Congressional_History/vetoes.html (last visited May 13,2006)[hereinafter Presidential Vetoes).During this period the President was not even powerful enough to control his own Cabi- net.After Jefferson's presidency,Presidents felt obligated to keep in office much of their prede- cessor's Cabinet,and when the Cabinet convened,the President considered each of his Cabinet members'votes equal to his own.In the words of a leading presidential historian,"the presidency was in commission."CORWIN,supra note 35,at 19. 38 THE FEDERALIST NO.5I (James Madison),supra note I,at 322. 39 Jackson vetoed more bills than all previous Presidents combined,Presidential Vetoes,supra note 37,including his famous veto of the Second Bank of the United States,which was accompa- nied by the strongest statement of the presidency's independent role that had thus far been issued in American history.See ROBERT V.REMINI,ANDREW JACKSON AND THE BANK WAR 177- 78 (1967).Even the course of his vetoes reflected the increasing functional separation of the Presidency from Congress:Jackson's early vetoes were based on constitutional objections,tradi- tionally a more widely accepted basis for exercise of the veto,while his later ones rested on mere policy disagreement with Congress.See id. 40 CORWIN,supra note 35,at 21. 41 JAMES S.CHASE,EMERGENCE OF THE PRESIDENTIAL NOMINATING CONVENTION, 1789-1832,at294-95(1973)

L&P - BOOKPROOFS 09/13/06 – 11:39 PM 2322 HARVARD LAW REVIEW [Vol. 119:2311 that separated powers would create checks and balances by joining “the interest of the man” with “the constitutional rights of the place.”38 The political interests of the man who held the presidency, it turned out, had little to do with furthering some abstract conception of the presidency’s proper role, but were instead rooted in the necessity of winning and keeping office. Presidents maximized their political pros￾pects not by creating an independent “will” for the executive branch or competing with Congress for power, but instead by acquiescing in con￾gressionally dominated government. Not until the presidency of Andrew Jackson did American govern￾ment begin to resemble in practice the Madisonian system of separa￾tion of powers that existed on paper. Jackson was the first President to circumvent Congress by appealing directly to the people, claiming that his office embodied the American people as a whole. His revolu￾tionary use of the veto backed up this claim.39 As a leading historian of the presidency puts it, for the first time the presidency “was thrust forward as one of three equal departments of government, and to each and every of its powers was imparted new scope, new vitality.”40 The inauguration of the independent presidency under Jackson was made possible by two institutional changes, both emerging from the invention of political parties. First, Martin Van Buren’s creation of the mass-scale political party generated pressure for popular control over presidential nominations, leading to the replacement of the con￾gressional caucus system by national nominating conventions as of 1832. 41 Second, the Democratic Party’s novel practice of running presidential electors pledged in advance to vote for particular candi- ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– and made the President, in a sense, the creation of Congress.”). Thus, the Presidents holding of￾fice between Washington and Jackson vetoed only eight bills, with seven vetoed by Madison. See Office of the Clerk, U.S. House of Representatives, Presidential Vetoes, http://clerk.house.gov/ histHigh/Congressional_History/vetoes.html (last visited May 13, 2006) [hereinafter Presidential Vetoes]. During this period the President was not even powerful enough to control his own Cabi￾net. After Jefferson’s presidency, Presidents felt obligated to keep in office much of their prede￾cessor’s Cabinet, and when the Cabinet convened, the President considered each of his Cabinet members’ votes equal to his own. In the words of a leading presidential historian, “the presidency was in commission.” CORWIN, supra note 35, at 19. 38 THE FEDERALIST NO. 51 (James Madison), supra note 1, at 322. 39 Jackson vetoed more bills than all previous Presidents combined, Presidential Vetoes, supra note 37, including his famous veto of the Second Bank of the United States, which was accompa￾nied by the strongest statement of the presidency’s independent role that had thus far been issued in American history. See ROBERT V. REMINI, ANDREW JACKSON AND THE BANK WAR 177– 78 (1967). Even the course of his vetoes reflected the increasing functional separation of the Presidency from Congress: Jackson’s early vetoes were based on constitutional objections, tradi￾tionally a more widely accepted basis for exercise of the veto, while his later ones rested on mere policy disagreement with Congress. See id. 40 CORWIN, supra note 35, at 21. 41 JAMES S. CHASE, EMERGENCE OF THE PRESIDENTIAL NOMINATING CONVENTION, 1789–1832, at 294–95 (1973)

2o06] SEPARATION OF PARTIES,NOT POWERS 2323 dates undermined the electoral college by turning it into a mere tabu- lating device,one likely to yield a majority winner;this all but elimi- nated the role of the House of Representatives in resolving presidential elections.42 Taken together,these two institutional changes wrested control of the presidency away from Congress by forging an independ- ent,popular electoral base for the President.43 Thus,it took the mass-scale Democratic Party of Van Buren and Jackson to create the possibility of Madisonian competition between Congress and the President that the original constitutional design had promised but failed to deliver.44 For all of the Framers'aversion to parties,credit for the belated birth of genuinely separated powers must go to the mass political party-the embodiment of the factionalized politics the Framers most loathed.One failure of constitutional design was corrected,ironically,by another. The correction,however,was neither permanent nor complete. Just as parties can create the conditions necessary for interbranch competition to emerge,they can also submerge competition by effec- tively reuniting the branches.As we elaborate below,if government officials are motivated primarily by policy and partisan goals,then single-party control of multiple branches of government will tend to create cross-branch cooperation among like-minded officeholders.45 Once again,parties can-and often do-change the relationship be- tween Congress and the President from competitive to cooperative. For present purposes,however,it is enough to see that from the outset of government under the Constitution,practical politics under- mined the Madisonian vision of rivalrous branches pitted against one another in a competition for power.The emergence of a robust system of democratic politics tied the power and political fortunes of govern- ment officials to issues and elections.This,in turn,created a set of in- centives that rendered these officials largely indifferent to the powers and interests of the branches per se.46 In Madison's terms,"the inter- ests of the man"have become quite disconnected from the interests of “the place.” Instead,the electoral and policy interests of politicians have be- come intimately connected to political parties.Since the early conflicts between Federalists and Republicans,politicians have affiliated them- selves with the party whose platform comes closest to their own policy 42 See LEONARD,supra note 27,at 13-14. 43 See,e.g.,Lowi,supra note 32,at 1222-23. 44 See LEONARD,supra note 27,at 117-55 (documenting that conventions and "party organi- zation [were viewed as]necessary to effect an informal amendment of the Constitution,to take presidential elections permanently out of the House and put them reliably in the hands of the people"). 45 See infra pp.2326-27. 46 For an analysis of these incentives,see Levinson,supra note 19,at 923-37

2006] SEPARATION OF PARTIES, NOT POWERS 2323 dates undermined the electoral college by turning it into a mere tabu￾lating device, one likely to yield a majority winner; this all but elimi￾nated the role of the House of Representatives in resolving presidential elections.42 Taken together, these two institutional changes wrested control of the presidency away from Congress by forging an independ￾ent, popular electoral base for the President.43 Thus, it took the mass-scale Democratic Party of Van Buren and Jackson to create the possibility of Madisonian competition between Congress and the President that the original constitutional design had promised but failed to deliver.44 For all of the Framers’ aversion to parties, credit for the belated birth of genuinely separated powers must go to the mass political party — the embodiment of the factionalized politics the Framers most loathed. One failure of constitutional design was corrected, ironically, by another. The correction, however, was neither permanent nor complete. Just as parties can create the conditions necessary for interbranch competition to emerge, they can also submerge competition by effec￾tively reuniting the branches. As we elaborate below, if government officials are motivated primarily by policy and partisan goals, then single-party control of multiple branches of government will tend to create cross-branch cooperation among like-minded officeholders.45 Once again, parties can — and often do — change the relationship be￾tween Congress and the President from competitive to cooperative. For present purposes, however, it is enough to see that from the outset of government under the Constitution, practical politics under￾mined the Madisonian vision of rivalrous branches pitted against one another in a competition for power. The emergence of a robust system of democratic politics tied the power and political fortunes of govern￾ment officials to issues and elections. This, in turn, created a set of in￾centives that rendered these officials largely indifferent to the powers and interests of the branches per se.46 In Madison’s terms, “the inter￾ests of the man” have become quite disconnected from the interests of “the place.” Instead, the electoral and policy interests of politicians have be￾come intimately connected to political parties. Since the early conflicts between Federalists and Republicans, politicians have affiliated them￾selves with the party whose platform comes closest to their own policy ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 42 See LEONARD, supra note 27, at 13–14. 43 See, e.g., Lowi, supra note 32, at 1222–23. 44 See LEONARD, supra note 27, at 117–55 (documenting that conventions and “party organi￾zation [were viewed as] necessary to effect an informal amendment of the Constitution, to take presidential elections permanently out of the House and put them reliably in the hands of the people”). 45 See infra pp. 2326–27. 46 For an analysis of these incentives, see Levinson, supra note 19, at 923–37

L&P-BOOKPROOFS 09/13/06-11:39PM 2324 HARVARD LAW REVIEW [Vol.I19:2311 preferences,and parties,in turn,have exerted influence over members' policy goals and their ability to achieve them in office.The result has been a strong correlation between party affiliation and political behav- ior.Even the most casual observer of Washington politics understands that congressional opposition to a President's initiatives and nominees will come predominantly,if not entirely,from members of the opposite party. To observe that the political interests of elected officials generally correlate more strongly with party than with branch is not to assert that political interests perfectly track party affiliation.They obviously do not.For well-understood structural reasons,American parties have never achieved the near-perfect unity of political parties in European parliamentary systems.In the American system,policy agreement and disagreement on some issues has been,and continues to be,structured along lines that cut across party affiliations.On certain aspects of trade and environmental policy,for example,the relevant cleavages may correspond more closely to geography and interest-group support than to party.47 And sometimes the lines of policy disagreement actu- ally do correspond to the branches,reflecting the divergent preferences of the different temporal and geographical majorities that the House, Senate,and President represent(as opposed to the institutional inter- ests of the branches as such).Conventional wisdom has it,for exam- ple,that the President tends to focus more on national-scale problems and is generally inclined to resist the persistent efforts of Congress to dole out local pork.48 Such institutionally correlated divergences of political interest will sometimes create political battles between the branches -not because anyone has any stake in the power of the branches qua branches,but simply because,on some issues,branch af- filiation will correlate with policy preferences(and party affiliation will not).When it comes to highway bills,party labels may fall by the wayside. Nevertheless,the bottom line remains that in the broad run of cases-which is,after all,the relevant perspective for constitutional law-party is likely to be the single best predictor of political agree- ment and disagreement.49 It is impossible to grasp how the American 47 DAVID R.MAYHEW,DIVIDED WE GOVERN:PARTY CONTROL,LAWMAKING,AND INVESTIGATIONS,1946-2002,at 215-16(2d ed.2005). 48 See,e.g,Steven G.Calabresi,Some Normative Arguments for the Unitary Executive,48 ARK.L.REV.23,34-36(1995);see also DAVID R.MAYHEW,CONGRESS:THE ELECTORAL CONNECTION 127-28(1974).But see Jide Nzelibe,The Fable of the Nationalist President and the Parochial Congress,53 UCLA L.REV.(forthcoming June 2006). 49 See,e.g,Samuel C.Patterson Gregory A.Caldeira,Party Voting in the United States Congress,I8 BRIT.J.POL.SCI.III,III (1988)("Despite the fact that the congressional parties are weak by European standards,research on congressional decision making has repeatedly shown that 'party'remains the chief and most pervasive influence in Congress.").The leading

L&P - BOOKPROOFS 09/13/06 – 11:39 PM 2324 HARVARD LAW REVIEW [Vol. 119:2311 preferences, and parties, in turn, have exerted influence over members’ policy goals and their ability to achieve them in office. The result has been a strong correlation between party affiliation and political behav￾ior. Even the most casual observer of Washington politics understands that congressional opposition to a President’s initiatives and nominees will come predominantly, if not entirely, from members of the opposite party. To observe that the political interests of elected officials generally correlate more strongly with party than with branch is not to assert that political interests perfectly track party affiliation. They obviously do not. For well-understood structural reasons, American parties have never achieved the near-perfect unity of political parties in European parliamentary systems. In the American system, policy agreement and disagreement on some issues has been, and continues to be, structured along lines that cut across party affiliations. On certain aspects of trade and environmental policy, for example, the relevant cleavages may correspond more closely to geography and interest-group support than to party.47 And sometimes the lines of policy disagreement actu￾ally do correspond to the branches, reflecting the divergent preferences of the different temporal and geographical majorities that the House, Senate, and President represent (as opposed to the institutional inter￾ests of the branches as such). Conventional wisdom has it, for exam￾ple, that the President tends to focus more on national-scale problems and is generally inclined to resist the persistent efforts of Congress to dole out local pork.48 Such institutionally correlated divergences of political interest will sometimes create political battles between the branches — not because anyone has any stake in the power of the branches qua branches, but simply because, on some issues, branch af￾filiation will correlate with policy preferences (and party affiliation will not). When it comes to highway bills, party labels may fall by the wayside. Nevertheless, the bottom line remains that in the broad run of cases — which is, after all, the relevant perspective for constitutional law — party is likely to be the single best predictor of political agree￾ment and disagreement.49 It is impossible to grasp how the American ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 47 DAVID R. MAYHEW, DIVIDED WE GOVERN: PARTY CONTROL, LAWMAKING, AND INVESTIGATIONS, 1946–2002, at 215–16 (2d ed. 2005). 48 See, e.g., Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23, 34–36 (1995); see also DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 127–28 (1974). But see Jide Nzelibe, The Fable of the Nationalist President and the Parochial Congress, 53 UCLA L. REV. (forthcoming June 2006). 49 See, e.g., Samuel C. Patterson & Gregory A. Caldeira, Party Voting in the United States Congress, 18 BRIT. J. POL. SCI. 111, 111 (1988) (“Despite the fact that the congressional parties are weak by European standards, research on congressional decision making has repeatedly shown that ‘party’ remains the chief and most pervasive influence in Congress.”). The leading

2o06] SEPARATION OF PARTIES,NOT POWERS 2325 system of government works in practice without taking account of how partisan political competition has reshaped the constitutional structure of government in ways the Framers would find unrecogniz- able.Yet the constitutional law and theory of separation of powers has proceeded,for the most part,as if parties did not exist and the branches behaved in just the way Madison imagined.so B.Presidential,Parliamentary,and Party Government In contrast to courts and constitutional scholars,political scientists have long appreciated political parties'leading role in enforcing the separation of powers,though from the opposite normative perspective. Their focus on parties emerges from a traditional line of political thought juxtaposing the American "presidential"system of separation of powers with the classic British system of parliamentary government. In contrast to the Madisonian model,in which democratic legitimacy and lawmaking authority are formally divided between the independ- ently elected President and Congress,the Westminster executive is formed by the legislative majority and essentially wields plenary con- trol over governance.Power in the Westminster system is unified,not separated. For admirers of the British system,the Madisonian design was critically flawed in its inception.The parliamentarian critique of the American separation of powers dates back at least to the early Wood- row Wilson,who,writing in the late nineteenth century,saw the Framers'decision to divide powers between Congress and the Execu- tive as a "grievous mistake."51 Wilson argued that Madisonian gov- ernment was dramatically ineffective and vulnerable to paralysis and stalemate because significant policymaking could not be accomplished without somehow inducing cooperation between the inherently com- petitive political branches.He also argued that,because voters had no single government institution on which to focus political credit or blame,the constitutional separation of powers sacrificed democratic college textbook on American government concludes:"[Plarty affiliation is still the most important thing to know about a member of Congress.Knowing whether a member is a Democrat or a Re- publican will not tell you everything about the member,but it will tell you more than any other single fact."JAMES Q.WILSON JOHN J.DIIULIO,JR.,AMERICAN GOVERNMENT 340 (Ioth ed.2006). 5o We hasten to recognize that there are a number of important exceptions,which we build upon in this Article.For recognition of the role of parties,see sources cited supra note 6.For skepticism about unitary branch interests,see Rebecca L.Brown,Separated Powers and Ordered Liberty,139 U.PA.L.REV.1513,1518 (1991);and M.Elizabeth Magill,Beyond Powers and Branches in Separation of Powers Law,150 U.PA.L.REV.603,605 (2001). 51 WOODROW WILSON,CONGRESSIONAL GOVERNMENT 187 (Johns Hopkins Univ.Press I98I)(1885);see also Thomas O.Sargentich,The Limits of the Parliamentary Critique of the Separation of Powers,34 WM.MARY L.REV.679,684-706 (1993)(describing the intellectual history of this critique)

2006] SEPARATION OF PARTIES, NOT POWERS 2325 system of government works in practice without taking account of how partisan political competition has reshaped the constitutional structure of government in ways the Framers would find unrecogniz￾able. Yet the constitutional law and theory of separation of powers has proceeded, for the most part, as if parties did not exist and the branches behaved in just the way Madison imagined.50 B. Presidential, Parliamentary, and Party Government In contrast to courts and constitutional scholars, political scientists have long appreciated political parties’ leading role in enforcing the separation of powers, though from the opposite normative perspective. Their focus on parties emerges from a traditional line of political thought juxtaposing the American “presidential” system of separation of powers with the classic British system of parliamentary government. In contrast to the Madisonian model, in which democratic legitimacy and lawmaking authority are formally divided between the independ￾ently elected President and Congress, the Westminster executive is formed by the legislative majority and essentially wields plenary con￾trol over governance. Power in the Westminster system is unified, not separated. For admirers of the British system, the Madisonian design was critically flawed in its inception. The parliamentarian critique of the American separation of powers dates back at least to the early Wood￾row Wilson, who, writing in the late nineteenth century, saw the Framers’ decision to divide powers between Congress and the Execu￾tive as a “grievous mistake.”51 Wilson argued that Madisonian gov￾ernment was dramatically ineffective and vulnerable to paralysis and stalemate because significant policymaking could not be accomplished without somehow inducing cooperation between the inherently com￾petitive political branches. He also argued that, because voters had no single government institution on which to focus political credit or blame, the constitutional separation of powers sacrificed democratic ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– college textbook on American government concludes: “[P]arty affiliation is still the most important thing to know about a member of Congress. Knowing whether a member is a Democrat or a Re￾publican will not tell you everything about the member, but it will tell you more than any other single fact.” JAMES Q. WILSON & JOHN J. DIIULIO, JR., AMERICAN GOVERNMENT 340 (10th ed. 2006). 50 We hasten to recognize that there are a number of important exceptions, which we build upon in this Article. For recognition of the role of parties, see sources cited supra note 6. For skepticism about unitary branch interests, see Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. PA. L. REV. 1513, 1518 (1991); and M. Elizabeth Magill, Beyond Powers and Branches in Separation of Powers Law, 150 U. PA. L. REV. 603, 605 (2001). 51 WOODROW WILSON, CONGRESSIONAL GOVERNMENT 187 (Johns Hopkins Univ. Press 1981) (1885); see also Thomas O. Sargentich, The Limits of the Parliamentary Critique of the Separation of Powers, 34 WM. & MARY L. REV. 679, 684–706 (1993) (describing the intellectual history of this critique)