Democracy and the Problem of the Partisan State
University of Toronto - Faculty of Law
May 10, 2013
NOMOS LIV: Loyalty (Sanford Levinson, Joel Parker & Paul Woodruff, eds) 257-291 (2013).
This article addresses the following question: when, and under what conditions, should partisanship play a role in democratic politics? I examine this question by focusing on an undertheorized issue, which I refer to as the problem of the partisan state. Most (if not all) theories of democracy describe the state as an impartial institution that acts on behalf of the whole. Yet even a cursory analysis of the political system in the United States reveals myriad ways in which the state acts as a partisan entity in the processes of democracy. For example, public officials, such as the President and members of Congress, seek to implement the partisan agenda of their respective parties. The problem of the partisan state arises when the state, instead of acting as an impartial body, acts as a partisan entity.
Although the partisan state is ubiquitous, it has not received a sustained theoretical analysis within democratic theory. This article seeks to develop an account of when, and under what conditions, partisan activities by the state are democratically legitimate. Rather than dismissing the partisan state as a failure of democratic theory, I argue, counterintuitively, that there are arguments within democratic theory to support the partisan state.
This article draws a distinction between first-order partisanship and second-order partisanship. First-order partisanship encompasses the selection of public policies and the selection of public officials. An example of first-order partisanship is the implementation by the President of the partisan agenda of his or her political party. Second-order partisanship encompasses the selection of the rules by which public policies and public officials are selected. An example of second-order partisanship is the influence of partisanship on electoral redistricting. This article argues that first-order partisanship has a qualified claim to democratic legitimacy while second-order partisanship has almost no claim to democratic legitimacy. The reason for this difference is that first-order partisanship is largely consistent with the principle of self-government, while second-order partisanship, by contrast, undermines and disrupts self-government. The article then develops a typology by which to assess and judge the actions of the partisan state.
Number of Pages in PDF File: 35
Keywords: democratic theory, partisanship, election law, law of democracy
Date posted: September 27, 2013
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