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Job-Market Paper
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Fractured Parties and the Separation of Powers
Americans love to hate political parties. In recent years, however, scholars have argued that the partisan battles Americans find so distasteful are essential to sustaining constitutional government. Clashes between Democrats and Republicans ensure competition between Congress and the president and guarantee that at least some states will resist federal encroachments. But what happens when Democrats in Congress don’t see eye to eye? Or when some “red” states want to implement “blue” federal policies? As this Article argues, the reality that members of the same party are often at odds with each other matters deeply for constitutional law. It seeks to show how foregrounding intraparty fragmentation—that is, within-party ideological heterogeneity and resulting internal discord—can enrich our collective understanding of the separation of powers at the national level and the relationship between the states and federal government. For example, the conventional wisdom that Congress and the president will defend their institutional turf when controlled by rival parties assumes that co-partisans in the legislature can overcome their differences to check the executive. How exactly this happens warrants close attention. Unless members of Congress can resolve their internal disagreements, party fractures risk damaging the separation of powers—by making it harder for a legislative majority of one party to check an executive of the other. Similar dynamics are at play at the state level. Not all Republican states are equally red, nor all Democratic states equally blue. As is true in Congress, these intraparty differences make it difficult for states to repel—or bolster—federal initiatives on a partisan basis. For these reasons, the tools that party leaders use to quell or disguise intraparty fragmentation, and those that dissidents use to fight back, are crucial components of the “small-c” constitution. The fact that fractured parties are likely to remain an indelible part of our constitutional politics has important lessons for institutional design. The same tools and venues that help party leaders to induce cohesion also suppress internal party diversity, which is often a necessary condition for productive cross-party collaboration. Against this backdrop, the Article highlights the generative capacity of institutional rules designed to exploit party fractures. In Congress, empowering centrist dissidents has the potential to disrupt the status quo and end legislative gridlock by making it easier for members to forge bipartisan partnerships. Likewise, encouraging the creation of new venues for internal party collaboration at the state level has the potential to reveal new arrangements and possibilities previously stifled by partisan strictures. Turning its attention to the party fractures that pit more extreme members against their mainstream peers, the Article also observes that they—while certainly not generative in the same way—can nevertheless be Madisonian in their operation: alternately constraining the ambitions of over-eager majorities or propelling reluctant majorities to step up. It concludes that courts, too, must grapple with the majoritarian challenges fractured parties pose. For example, the Article argues that to the extent that congressional party leaders seek to suppress division through agenda control, the burden of updating old statutes should not rest solely with legislators. |
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Peer-Reviewed Publications
& Book Chapters |
"Anatomy of Judicial Backlash: Southern Leaders, Massive Resistance and the Supreme Court, 1954-1958” (with Ruth Bloch Rubin). 2018. Law & Social Inquiry 43:944-980 | Link
"Judicial Partisanship and the Slaughterhouse Cases: Investigating the Relationship Between Courts and Parties." 2017. Studies in American Political Development 31:24-46 | Link "Constitutional Litigation in the United States," in Constitutional Courts in Comparison, eds. Ralf Rogowski and Thomas Gawron (with Robert A. Kagan, Berghahn Books, 2016) |
