Of Sovereigns and Servants

9 Pages Posted: 24 Sep 2007

Abstract

This essay offers a bit of shared terminology for capturing a set of distinctions that run through large portions of constitutional law. Legal scholars are often preoccupied with correcting power imbalances. Some of those power imbalances are vertical, such as the worry some local government law scholars have about weak cities in need of protection against an overweaning state. Other power imbalances are horizontal, such as the worry of some separation-of-powers scholars about an unduly powerful federal Executive. Despite these differences, scholars tend to propose quite similar correctives for fixing the imbalance in question.

The first and most familiar strategy depends on what one might call "the power of the sovereign." This strategy relies on sovereignty or its rough equivalent to mediate the relationship between two institutional actors. For scholars proposing a vertical fix for a perceived power imbalance, the power of the sovereign is a variant of federalism -- the creation of formally or informally delineated zones of autonomy in which a lower level institution can govern freely. For scholars proposing a horizontal fix, the power of the sovereign similarly relies on the preservation of zones of autonomy among nominally co-equal institutions. The power of the sovereign thus relies on autonomy and separation to ensure that ambition is able to counteract ambition.

The second, more counterintuitive institutional fix relies on what I call "the power of the servant" to check a power imbalance. This fix depends on the ability of an institutional actor placed somewhere down in the chain of command to influence the person who is nominally his boss. Unlike the sovereign, the servant lacks autonomy and, if push comes to shove, must cede to the higher authority. The power of the servant thus stems mainly from reliance; the fact that the higher authority needs the servant to administer a program or carry out a duty creates space for bureaucratic pushback (and, as I argue, community standing). Put differently, the power of the servant depends on administrative overlap, not division; on integration, not isolation. The essay concludes by offering a few preliminary reflections on the utility of this terminology.

Keywords: sovereignty, autonomy, separation of powers, local government law, cities, executive power, administrative law

Suggested Citation

Gerken, Heather, Of Sovereigns and Servants. Yale Law Journal, Vol. 115, No. 9, 2006. Available at SSRN: https://ssrn.com/abstract=1016198

Heather Gerken (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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