Abstract. The Constitution of the United States is one of the most explicit foundational texts in the world on the separation of powers. Article I vests all legislative power exclusively in Congress. Article II confines the executive to faithful execution of the law. The Founding Fathers, and George Washington in particular, warned with prophetic clarity against the destructive power of political factions. Yet within a single generation of ratification, political parties had begun capturing the legislature — a process that has accelerated to the point where Congress today functions, in substantial part, as a registration chamber for party will rather than as a sovereign deliberative body. This article argues that this capture constitutes a functional institutional insurrection against the supreme law of the land: not in a penal sense, but in a structural and constitutional one. The drift is not new. It was foreseen. And the Constitution contains no effective remedy for it.

Introduction

The United States Constitution is, by design, a document of strict architectural clarity. Its framers had lived under British parliamentary rule, observed the instability of the Articles of Confederation, and read their Montesquieu. They understood — viscerally — that concentrated power corrupts the rule of law. They built accordingly: a tripartite system in which each branch is not merely separate from the others, but structurally incapable of absorbing the functions of the others.

The framers also understood something more specific, and more dangerous: the threat of faction. James Madison devoted Federalist No. 10 to this single question. George Washington, in his Farewell Address of 1796, identified the spirit of party as the most formidable enemy of republican government. Neither was speaking hypothetically. Both were watching, in real time, the first American parties begin to form around them.

What neither could fully anticipate — because it had no historical precedent — was the organizational sophistication that modern political parties would achieve. A party in 1796 was a loose coalition of like-minded men. A party in 2026 is a permanent institution with its own bureaucracy, funding apparatus, communications infrastructure, candidate-selection machinery, and disciplinary mechanisms over elected officials. It is, in legal terms, a private association. In practical terms, it has become the primary engine of legislative production in the United States — a function the Constitution does not assign to it and cannot.

This article examines, from a strictly legal and constitutional standpoint, the gap between what the founding texts say and what American political parties do. It does not take a political position. It makes a legal observation: the capture of the legislature by political parties is a functional violation of the Constitution of 1787.

I. Three Realities the Language Conflates

A. The political: the civic space of the republic

The distinction between 'the political' (the substantive noun) and 'politics' (the activity) is less grammatically marked in English than in French, but it is no less real. The political, in its foundational sense, is the civic space — the organized community, the republic — within which citizens deliberate, argue, and form collective judgments. It is the space of the res publica: the public thing, the common concern.

In this sense, the political is not a power. It is a space. It is the space in which power is contested, legitimated, and restrained. The framers understood this when they wrote 'We the People' at the head of the Constitution: the political — the civic community — is prior to any institutional arrangement. It is the source of legitimacy, not its product.

The political produces interpretations of the common good. It does not produce binding norms. That is the essential distinction the framers built into the architecture of the Constitution.

B. Politics: the activity of competition and direction

Politics — the activity — is the competition for power, the production of programs and narratives, the mediation between the civic community and its institutions. Politics, in this sense, is inevitable and legitimate. A republic without political competition is an oligarchy.

What is not legitimate — constitutionally — is the claim of political actors to exercise the functions of a separate constitutional branch. When a political party says 'we will pass this law,' it makes a political statement, not a constitutional one. The law does not flow from the party's program. It flows from the deliberative judgment of Congress, enacted through procedures the Constitution specifies in detail.

The confusion between politics (the activity) and legislative power (the constitutional function) is the core of the institutional drift this article diagnoses. It is not a semantic confusion. It is a power usurpation dressed in semantic confusion.

C. The legislature: the sole holder of legislative power

The Constitution of 1787 is unambiguous on this point. Article I, Section 1 opens with a sentence that admits of no interpretation: "All legislative Powers herein granted shall be vested in a Congress of the United States." The word all is absolute.¹ The word vested is irrevocable. Congress does not share legislative power with the executive. It does not share it with political parties. It holds it, exclusively and entirely, as the representative of the sovereign people.

The executive's role is defined with equal clarity. Article II, Section 3 requires that the President "shall take Care that the Laws be faithfully executed."² The President executes. He does not legislate. The verb 'faithfully' is not decorative: it implies subordination to the law as written by Congress, not as desired by the President or his party.

This architecture was deliberate, consciously designed, and philosophically grounded. It is not a technical detail of constitutional drafting. It is the foundational principle of the American republic.

II. What the Founding Texts Say — Without Ambiguity

A. Madison's warning: factions are the primary threat

James Madison's Federalist No. 10, published in November 1787, is not a historical curiosity. It is the most precise diagnosis ever written of the disease that now consumes American legislative institutions. Madison defines faction as a group "united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community."³ This is, word for word, the modern political party — particularly in its disciplinary, legislative-capture form.

Madison believed the constitutional architecture — bicameralism, separation of powers, federalism, staggered elections — would neutralize the effect of faction by preventing any single group from controlling all branches simultaneously. He wrote in Federalist No. 51: "Ambition must be made to counteract ambition."⁴ The system was designed so that institutional self-interest would resist partisan capture. What Madison did not foresee was the organizational sophistication of the modern party — capable of imposing discipline simultaneously on both legislative chambers and the executive.

B. Washington's prophecy: the most precise constitutional warning ever issued

George Washington's Farewell Address of September 17, 1796 is, constitutionally, one of the most important American texts. It is not a law. It is not a judicial opinion. But it is a founding document in the truest sense: a warning issued by the man who had refused to become king, who had presided over the Constitutional Convention, and who had watched the first parties form during his own presidency.

Washington wrote: "The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism."⁵

He continued, with prophetic precision: "[Parties] are likely, in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government."⁶

Washington was not speaking abstractly. He was watching it happen. He named the mechanism — 'potent engines' that 'usurp the reins of government' — with a precision that no subsequent constitutional scholar has surpassed. What he described in 1796 is what this article qualifies, in 2026, as an institutional insurrection against the supreme law.

C. The constitutional silence on parties: not an oversight

Political parties are not mentioned anywhere in the Constitution of 1787. This is not an oversight. It is a design choice — the same design choice as the Ineligibility Clause (Article I, § 6), which prohibits members of Congress from simultaneously holding executive office.⁷ The framers deliberately created institutional separation that parties would later dissolve.

A political party, in American constitutional law, is a private association. It has no constitutional standing, no enumerated powers, no constitutional duties. It is not part of the separation of powers. It is not a branch of government. Its internal decisions — candidate selection, platform adoption, vote discipline — have no constitutional status whatsoever.

When a party imposes a voting line on its congressional members, it exercises a power the Constitution does not grant it. When it drafts legislation through its leadership and presents it to Congress as a party measure, it substitutes its private will for the deliberative judgment of the constitutional legislature. This substitution is the structural violation this article identifies.

III. The Drift — Neither New Nor Accidental

A. The first generation already failed

The constitutional ideal lasted approximately four years. Washington's Farewell Address was delivered in September 1796. By the election of 1800, the United States had its first fully partisan presidential contest — Jefferson's Democratic-Republicans against Adams's Federalists. The party machinery was already controlling candidate selection, fundraising, and legislative strategy.⁸

By the 1820s, Andrew Jackson and Martin Van Buren had institutionalized the 'spoils system': the systematic replacement of civil servants with party loyalists, the disciplining of legislative votes through patronage, and the transformation of the party into an organizational machine that preceded, shaped, and controlled institutional decisions.⁹ The constitutional architecture of Madison's Federalist No. 51 was not dismantled by force. It was dissolved by organization.

This is the first crucial point: the drift is not a product of recent polarization, of social media, or of any particular figure. It is the original American political pathology, identified by the founders before the Constitution was ratified, present from the first administration, and accelerating through every subsequent generation.

B. The quantified evidence: Congress as a registration chamber

The VoteView Project at the University of California, San Diego, has tracked every congressional vote since 1789 using DW-NOMINATE ideological scores.¹⁰ The data shows that party-line voting in Congress — members voting with their party against the other — has reached its highest levels in American recorded history in the period from the mid-1990s to the present. The deliberative body Madison designed has become the most disciplined party-voting legislature in the republic's history.

The process of legislative production confirms this. The Congressional Research Service has documented that the overwhelming majority of bills introduced in Congress do not originate from individual members exercising independent legislative judgment.¹¹ They originate from executive agencies, party leadership offices, and interest groups aligned with party structures. The constitutional legislator — the individual member of Congress deliberating on behalf of constituents — has been structurally marginalized.

The party whip system enforces this discipline through a combination of incentives — committee assignments, leadership positions, campaign funding — and sanctions. It has no constitutional basis.¹² Article I grants each member of Congress an equal vote. No constitutional provision authorizes any party officer to direct that vote. The whip system is, constitutionally, a nullity that has become institutionally omnipotent.

C. The legislative process as party instrument

The Presentment Clause of Article I, Section 7 describes the constitutional process for making law: a bill must pass both Houses and be presented to the President.¹³ At no step in this constitutionally prescribed process does a political party have standing. The party is not a constitutional actor in the legislative process.

In practice, however, legislation in the contemporary Congress is routinely organized around party will: leadership-controlled bills, party-line committee votes, procedural rules designed to prevent minority amendments, and floor scheduling controlled by the majority party leadership rather than by the full chamber. The constitutional legislature deliberates; the actual legislature executes party decisions.

Citizens United v. FEC (2010) deepened this structural capture by removing restrictions on independent political expenditures by corporations and associations.¹⁴ The decision, whatever its First Amendment logic, reinforced the organizational power of party and faction over electoral outcomes and, through electoral outcomes, over legislative behavior. The private association that is the political party acquired, after Citizens United, financial leverage over its members that further weakened any residual legislative independence.

IV. The Institutional Insurrection: Legal Qualification

A. The constitutional standard

An institutional insurrection, in constitutional law, does not require violence. It requires the substitution of an unauthorized actor for a constitutional power — the arrogation of a function the Constitution does not grant, the prevention of a constitutional branch from exercising its function, and the diversion of an institution from its constitutional purpose.

Political parties, in the United States, meet each of these criteria in their relationship to Congress. They substitute their will for congressional deliberation. They arrogate legislative functions the Constitution vests exclusively in Congress. They prevent the legislature from exercising its constitutional function as a body of representatives deliberating independently. They divert Congress from its constitutional purpose — the expression of the sovereign will of the people through law — to a secondary purpose: the implementation of party programs.

This is a violation of the Constitution — not in a criminal sense, and not one that any court has been willing to adjudicate directly. But it is a structural and functional violation of the most fundamental architectural principle of the 1787 document.

B. The absence of judicial remedy

Marbury v. Madison (1803) established judicial review as the mechanism for constitutional enforcement: 'It is emphatically the province and duty of the Judicial Department to say what the law is.'¹⁵ But judicial review, as practiced by American courts, operates on enacted law — statutes, executive orders, administrative regulations. It does not operate on the process by which party discipline replaces legislative deliberation. A law passed by party-line vote, drafted in party leadership offices, is constitutionally indistinguishable from a law produced by genuine deliberation. The form is respected; the substance is hollow.

The Supreme Court has repeatedly declined to adjudicate questions of internal congressional procedure as 'political questions' beyond judicial reach. This means that the most consequential form of constitutional violation — the structural capture of the legislature by private associations — is precisely the form of violation that the constitutional judiciary cannot remedy.

The framers built a system in which ambition counteracts ambition, in which institutional self-interest defends institutional prerogative. They did not build — and perhaps could not have built — a system in which institutional self-interest could be dissolved by partisan solidarity. When the party becomes stronger than the institution, the constitutional remedy fails.

C. January 6, 2021: symptom, not cause

The assault on the United States Capitol on January 6, 2021 is frequently analyzed as a political event, a criminal event, or a democratic crisis. It is all of these.¹⁶ But from a constitutional standpoint, it is most accurately described as a symptom — the visible, violent manifestation of a legitimacy breakdown that had been accumulating for decades.

Tocqueville had identified the structural risk in 1835: the tyranny of the majority faction, operating through democratic forms while destroying democratic substance.¹⁷ When a significant part of the population concludes that the institutions no longer reflect the will of the people — when the legislature is perceived, correctly, as an instrument of party will rather than popular sovereignty — the conditions for institutional rupture are created.

Levitsky and Ziblatt, in their 2018 analysis of democratic backsliding, noted that 'the guardrails of democracy are only as strong as our collective willingness to defend them.'¹⁸ The guardrails in question — the institutional self-restraint that prevents each branch from absorbing the others — had been eroded not by a single actor but by the decades-long normalization of party capture of the legislature. January 6 did not create the breach. It fell through it.

The point is not to minimize the events of that day. It is to locate them correctly within the constitutional trajectory this article traces: a drift that began before the ink was dry on the Constitution, that Washington named in 1796, that Madison had tried to prevent in 1787, and that has now produced visible institutional rupture.

V. The American Case Is Sharper — and Why It Matters

The French Constitutional case, analyzed elsewhere in this review, rests on the tension between the text of the 1958 Constitution and the practice of the Fifth Republic. The American case is stronger for three reasons.

First, the founding texts are more explicit. The Constitution of 1787 does not merely imply the separation of powers — it states it in the first sentence of Article I. The Federalist Papers are not merely commentary — they are the most authoritative contemporary interpretation of the constitutional design, authored by its principal architects. Washington's Farewell Address is not merely a political speech — it is the most precise warning against party capture ever issued by a head of state.

Second, the parties are constitutionally invisible. The French Constitution at least mentions political parties in Article 4, even if only to limit their role. The American Constitution does not mention parties at all. Their constitutional status is zero. Their institutional power is total. The gap between text and practice is therefore absolute.

Third, the remedial mechanisms are weaker. France has a Constitutional Council that can review legislation before promulgation. The United States has a Supreme Court that reviews enacted law but cannot touch the legislative process itself. The institutional insurrection is therefore structurally more protected in the United States than in France.

This makes the American constitutional situation not merely comparable to the French one — it makes it more acute. The texts are clearer, the parties are more powerful, and the remedies are more limited. The drift Washington foresaw is not a dysfunction of the American system. It is, at this point, the system.

Conclusion

Three distinctions frame this analysis.

The political is the civic space of the republic — the organized community within which citizens deliberate and form collective judgments. It is legitimate, essential, and constitutionally prior to any institutional arrangement. It produces interpretations of the common good, not binding norms.

Politics is the activity of competition for power, the production of programs and narratives. It is inevitable in any republic. It has no constitutional power to produce law.

The legislature — Congress — is the sole constitutional holder of legislative power in the United States. Article I is unambiguous. The word 'all' is absolute. No political party, no executive branch, no faction of any kind has a constitutional claim to share that power.

The drift from this constitutional architecture to the current reality — in which party discipline replaces deliberation, party programs replace legislative judgment, and private associations exercise the sovereign function of the people — is neither new nor accidental. Washington named it in 1796. Madison tried to prevent it in 1787. The Constitution was designed to resist it. The organization of modern political parties proved stronger than the design.

This is an institutional insurrection in the functional sense: a sustained, normalized substitution of unauthorized actors for constitutional powers. It is not criminal. It is not spectacular. It is the quiet, daily dissolution of the separation of powers that the founders placed at the center of the American republic.

The Constitution has not been amended to authorize this. It has simply been ignored. The founding texts remain clear. The distance between them and current practice is the measure of the drift — and the measure of what has been lost.

Author

Miguel Vidal Bravo-Jandia

Ingénieur — Master II Droit, UFR Montpellier I / Maîtrise ès droit, Université Paris II Panthéon-Assas

Notes

1. U.S. Constitution, Art. I, § 1. The word 'all' is absolute and admits no delegation to a political party.

2. U.S. Constitution, Art. II, § 3. The executive function is defined as execution of law, not its authorship.

3. James Madison, Federalist No. 10, 1787. Madison's faction is the modern political party.

4. James Madison, Federalist No. 51, 1788. The entire architecture rests on structural opposition — not party alignment.

5. George Washington, Farewell Address, September 17, 1796. Full text: https://avalon.law.yale.edu/18th_century/washing.asp

6. Washington, Farewell Address, 1796. The warning is constitutional in substance, not merely political.

7. U.S. Constitution, Art. I, § 6, cl. 2 (Ineligibility Clause). The Framers intended strict institutional separation.

8. The first fully partisan presidential contest: Jefferson v. Adams, 1800. Washington's warning was ignored within four years.

9. Andrew Jackson and Martin Van Buren, 1820s–1830s: institutionalization of the spoils system. See A.M. Schlesinger Jr., The Age of Jackson, 1945.

10. VoteView Project, DW-NOMINATE scores 1789–present. URL: https://voteview.com

11. Congressional Research Service, CRS Report RL31443, 'The Legislative Process on the Senate Floor', 2017.

12. The party whip system has no constitutional basis. Art. I grants each member an equal vote; no provision authorizes a party officer to direct it.

13. U.S. Constitution, Art. I, § 7, cl. 2 (Presentment Clause). At no step does a party have constitutional standing.

14. Citizens United v. FEC, 558 U.S. 310 (2010). The decision structurally reinforced party power over electoral outcomes.

15. Marbury v. Madison, 5 U.S. 137 (1803). Judicial review operates on enacted law — not on the process of party capture.

16. Select Committee to Investigate the January 6th Attack, Final Report, December 2022.

17. Alexis de Tocqueville, Democracy in America, 1835. The tyranny of majority faction as the structural weakness of American democracy.

18. Steven Levitsky and Daniel Ziblatt, How Democracies Die, Crown, 2018.