Divided Parties, Separated Parties

55 Pages Posted: 21 Feb 2021 Last revised: 9 Aug 2021

See all articles by Gregory Elinson

Gregory Elinson

Harvard University - Harvard Law School

Date Written: March 10, 2021


What happens within political parties matters deeply for constitutional law. To implement his ambitious legislative agenda for a nation in crisis, President Biden must wrangle fractious Democratic majorities in both chambers of Congress. Republicans, now in the minority, are deeply divided too, riven by the former president’s efforts to undermine the election results and foment insurrection. Though some of the specific details may be historically unusual, constitutionally salient intraparty fights happen all the time. And yet, the field of constitutional law tends to focus exclusively on battles between Democrats and Republicans. This Article remedies that lack of attention. It argues that taking intraparty divisions seriously, and attending to the ways the ways they can be resolved or muted, changes our understanding of the separation of powers, federalism, and the role of courts in our constitutional system.

Take the conventional wisdom that Congress and the president will defend their institutional turf most vigorously when they are controlled by rival parties. This account assumes that members of the majority party in Congress can overcome their differences to check the executive. But how exactly this happens warrants close attention. Indeed, drawing on contemporary social science research, the Article argues that even as the two parties have grown apart, it remains difficult for party leaders to keep their members in line. The consequences are stark. If members of the majority party in Congress are unable to reach accord, it is unlikely they will muster the collective strength to rebuff the executive. For these reasons, the tools that party leaders use to quell or disguise party divisions, and those their rank and file use to fight back, are crucial components of the “small-c” constitution.

Stepping back to observe that anxiety over factionalism has gone too far, the Article argues that party divisions promote representation. Party divisions can ensure that elected officeholders—whether at the federal or state level—are responsive to majority will. They can also maintain the Constitution’s carefully crafted balance between stasis and energy. So, too, they can allow for a wider range of ideas to be discussed within each party, making it more likely that policymakers will find creative and effective solutions to difficult problems.

Given their representation-reinforcing features, party divisions also necessarily bear on the exercise of the judicial power under Article III. The Article thus concludes by arguing that better understanding how party divisions are resolved can help shed light on two central debates in contemporary public law: whether courts should update statutes when Congress can’t or won’t, and how courts should treat congressional silence when presidents act in ways not specifically prohibited by law.

Keywords: constitutional law, separation of powers, federalism, political parties, representation

Suggested Citation

Elinson, Gregory, Divided Parties, Separated Parties (March 10, 2021). Harvard Public Law Working Paper No. 21-20, Available at SSRN: https://ssrn.com/abstract=3751638 or http://dx.doi.org/10.2139/ssrn.3751638

Gregory Elinson (Contact Author)

Harvard University - Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

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