Gregory A. Elinson* | 25.6 | Citation: Gregory A. Elinson, Intraparty Conflict and the Separation of Powers, 25 U. Pa. J. Const. L. 1307 (2023).

Read Full Article

Intent on reconciling constitutional theory to political reality, public law scholars have in recent decades dismissed as naïve both the logic of the Constitution’s design set forth in The Federalist and the Framers’ dismal view of political parties. They argue that, contrary to the Madisonian vision, competition between our two national political parties undergirds the horizontal and vertical separation of powers. But, in calling attention to the fights that take place between political parties, they underestimate the constitutional significance of the conflicts that persist within them. Reconsidering the law and theory of the separation of powers with attention to intraparty conflict, the Article explains why neither the traditional Madisonian—nor the contemporary party-based—model of the separation of powers accurately characterizes how political parties structure our constitutional framework.

The Article makes several contributions. Descriptively, it argues that intraparty conflict can immunize our constitutional system from the pathologies that arise when partisan warfare is overlayed on the Madisonian model of separated institutions sharing power. Analytically, it argues that public law scholars are wrong to treat partisanship as an identity—a fixed psychological state characteristic of individual officeholders. As the Article makes clear, partisanship is better understood as the product of institutional rules and procedures that empower partisans to join forces or go their own way. Likewise, it argues that there are analytic gains from categorizing decisions on campaign finance, candidate selection, and voter suppression as part of our separation of powers and federalism jurisprudence and explains how doing so might bear on traditional questions of constitutional law. Today, as was true at the Founding, Americans have no great love for intraparty conflict or party factionalism. But fear of the mischiefs of faction have blinded us to their merits. Preoccupied as we are by the pathologies of political polarization, we have failed to understand that the relative porousness of our parties—the very feature that drives internal party conflict—has helped to safeguard our republic and ensure the representativeness of our institutions.

***

* Assistant Professor, Northern Illinois University College of Law, elinson@niu.edu.