Government in opposition.

• Author: Fontana, David

ARTICLE CONTENTS INTRODUCTION I. SEPARATIONS OF POWERS: THE CONSTITUTIONAL LAW OF WINNING POLITICAL COALITIONS AND LOSING POLITICAL COALITIONS A. Terminological Preliminaries: Winners' Powers and Losers' Powers B. Apportioning Winners' Powers: Parliamentary and Presidential Regimes II. A CONSTITUTIONAL INNOVATION: GOVERNMENT IN OPPOSITION A. An Unnoticed Innovation in Constitutional Form B. A Typology of the Innovation in Constitutional Form C. The Forms of Government in Opposition 1. Legislative Government in Opposition 2. Executive Government in Opposition 3. Judicial Government in Opposition III. THE NORMATIVE BENEFITS OF GOVERNMENT IN OPPOSITION RULES A. The Benefits of Government in Opposition Rules 1. The Constructive Winner: The Illiberal Democrat and Permanent Constraint 2. The Constructive Loser: Legitimacy and Readiness B. Concerns about Government in Opposition Rules 1. The Stalemate Tradeoff? 2. Sowing the Seeds of Destruction: The Weimar Problem IV. CONSTITUTIONAL DESIGN FOR THE AMERICAN SCENE A. Problems with the American Separation of Powers 1. Unified Government 2. Majoritarian Domination 3. Bureaucratic Competence B. Design Fundamentals C. The Constitutional Considerations CONCLUSION INTRODUCTION

We all remember Wednesday morning, November 5, 2008, the morning after the 2008 American presidential election between Republican Presidential nominee John McCain and Democratic Presidential nominee Barack Obama. President-elect Obama won a clear majority of the national popular vote, a landslide in the electoral vote, and his Democratic Party captured more seats in the House of Representatives and the Senate. But imagine if the next day, despite such a major Democratic victory, because of a constitutional or other legal obligation, Obama was required to name a Republican such as Senator Orrin Hatch as his Attorney General--putting Hatch in control of the future of judicial appointments and wiretapping programs--and Obama was required to name his former rival McCain as his new Secretary of Defense, in charge of Obama's military policy in Afghanistan and Iraq.

This idea about government--of granting losing political parties the right not just to dissent from and obstruct the efforts of the winning political party, but also to exercise the power to govern as well--is an approach to government I call "government in opposition." In the past several decades, rules granting losing, minority parties the power to act like winning, majority parties--rules this Article references as government in opposition rules--have spread around the globe, infusing the fundamental law of dozens of democratic countries, including countries as diverse as Argentina, Britain, Chile, Germany, and South Africa. Such government in opposition rules helped resolve constitutional crises in post-apartheid South Africa, are at the core of the discussion about how to resolve the current political crisis in Zimbabwe, and have dominated the constitutional discussions when leaders in Afghanistan and Iraq met to draft their new constitutions.

The spread of government in opposition rules as a means of dividing power among political groups is one of the most consequential innovations in constitutional design in the past several decades. Indeed, when Great Britain first experimented with government in opposition rules in the early nineteenth century, then-Harvard University President Lawrence Lowell called it "the greatest contribution of the nineteenth century to the art of government." (1) Yet governments in opposition rules have received almost no attention in the academic literature. In legal scholarship, there have been a few articles raising the possibility of the occasional, obscure rule that permits minorities of various sorts to exercise majority power, (2) and a few articles mentioning in passing specific examples of such rules. (3) In the political science literature, Arend Lijphart makes an occasional, brief reference to government in opposition rules when discussing his idea of "consociationalism," (4) but devotes little attention to them, and unfortunately goes astray from government in opposition principles in important respects. But even these few and brief academic discussions of similar issues tend to focus on government in opposition rules as merely a random set of quirky, disconnected, and largely insignificant rules. There has been no discussion of how government in opposition rules--when grouped together--can form part of a deliberate, new, and alternative form of separation of powers.

This Article is an exercise in comparative and American constitutional law, examining the constitutional approaches of many different countries in pursuit of the most desirable constitutional structure, both in general for all constitutional designers, and more specifically for the United States. This Article is therefore a mix of the analytical and the normative; analytical in the sense that this Article is presenting an innovative "new" (5) or "newer" (6) separation of powers that has eluded the attention of scholars to this point; and normative in the sense that this Article offers a partial (albeit qualified) endorsement of the many institutional virtues of this emerging addition to separation of powers technologies, for the United States and for all other sorts of constitutional democracies.

Part I will begin our exploration of government in opposition by examining how constitutions around the world and in the United States have decided to separate powers among winning and losing political coalitions. (7) One of the fundamental issues of constitutional design that countries have addressed as part of these divisions of powers is how to divide authority among winning political coalitions. Parliamentary systems largely avoid this question by creating a singular winner who controls almost all of the levers of government. By contrast, other systems (presidential and semipresidential) create the potential for multiple winning political coalitions and divide bundles of authority between these multiple winners among the branches or levels of government, or within the branches of government.

But while these systems recognize and protect losing political parties, they do not give these losing parties the substantial powers afforded to winning coalitions to govern and to make law (what this Article will term "winners' powers"). As Part II discusses, then, government in opposition rules differ from these other regimes of separation of powers not in their treatment of winning coalitions, but in their treatment of losing coalitions, and their recognition that losing political coalitions should also have the capacity to exercise the power that winning coalitions usually posses to govern and to make law. Part II focuses on the different mechanisms that have been used in various countries to empower losing parties in this way--to give losers the power to govern in the executive, legislative, and judicial branches. In several other papers beyond this Article, I take up other tasks related to the discussion in Part II of the emergence of government in opposition rules, such as examining how these rules were created in part because they were seen as better forms of protection for political minorities than judicial review, and how the emergence of these rules has changed the nature of political opposition in Western democracies, including the United States.

After Part II, this Article turns to a discussion of whether government in opposition rules would be welcome additions to how the power to govern is distributed, focusing first in Part III on how these rules benefit all constitutional systems, and then in Part IV more specifically on what these rules could add to the American constitutional system. As part of this analysis, these Parts argue that government in opposition rules are constructive additions to the institutional design of countries that fall anywhere on the spectrum from the most to the least "fragile democracies." (8) Government in opposition rules are welcome parts of constitutional systems, in other words, for the over two-hundred-year-old Constitution of the United States, as well as for the new and incredibly fragile constitution of Iraq.

As Part III discusses, government in opposition rules help resolve one of the most problematic and underappreciated questions in constitutional design: how to prevent a very successful political movement from gaining too much control--what this Article calls the problem posed by the "illiberal democrat." (9) Whether it is a result of the actions of a Roosevelt or a Bush in the United States--or a Blair or Putin overseas--constitutional democracies and the idea of checks and balances are shaken to their cores when a hugely successful political leader, elected apparently legitimately at the ballot box, captures all of the branches and powers of government. This is because the other major modalities of separation of powers, after either one election or many elections, permit winning political coalitions to exercise almost unlimited power. Adding government in opposition rules, by contrast, permits losing coalitions to maintain real power and constrain successful political figures, regardless of how successful particular winning coalitions might be in democratic elections.

Government in opposition rules not only better constrain winning coalitions, but they also better train losing political coalitions--losing parties under such rules have experience using the powers afforded by the government, and therefore are ready to assume power should they win elections or otherwise be called upon to exercise substantial control over the levers of power. At bottom, losing political coalitions are also treated more fairly, because when they receive a major portion of the vote, they are also permitted control of major parts of the process of governing.

Part IV turns to the American scene, and discusses...