In the past generation, in all countries in all parts of the world, using all different forms of constitutional government, a new form of separation of powers has emerged, what this Article calls “government in opposition.” After democratic elections are held, power to govern is granted to the winner of those elections - but substantial power to govern is also granted to the loser of those elections as well. This Article first discusses how this emerging regime of separation of powers differs from other major forms of separation of powers, and in doing so introduces a new way of understanding the major systems of separated power that the world’s constitutional democracies have created. After providing some examples and illustrations of how this new, government in opposition system of separated powers operates - and why it has proven to be so consequential in so many countries - this Article then discusses how government in opposition rules have much to offer constitutional designers around the world. In fragile democracies and stable democracies alike, government in opposition rules can better constrain power and stabilize the core elements of constitutional democracy, better prepare all parties to govern effectively, more fairly involve all interests in the process of governing - and can do all of this at minimal cost. To illustrate this point, this Article closes with a discussion of how government in opposition rules might work in the United States, and how they might remedy some of the current political and constitutional problems that we face.
GW Paper Series
GWU Legal Studies Research Paper No. 487; GWU Legal Studies Research Paper No. 487
David Fontana, Government in Opposition, 119 Yale L.J. 548 (2009).