The Puzzling Absence of Economic Power in Constitutional Theory

88 Pages Posted: 23 Sep 2015 Last revised: 30 Dec 2016

Ganesh Sitaraman

Vanderbilt Law School

Date Written: September 21, 2015

Abstract

Six years after the financial crash, disparities in economic power are at the forefront of popular debate. Political leaders increasingly express a growing popular sentiment that “the system is rigged” to work for wealthy and corporate interests, who have the means to buy influence through campaign funding and then sustain their influence with “armies of lobbyists” in Washington. In a battery of studies over the last decade, political scientists have confirmed populist suspicions and demonstrated that economic elites dominate the American political system. Their findings operate across all areas of policy, and they provide systematic empirical evidence that political influence is tilted in favor of the wealthiest members of American society.

With rare exception, however, the power of economic elites – and the empirical evidence for this power – has been largely invisible from macro-level contemporary debates in constitutional theory. Most of the time, constitutional theorists have in mind a more optimistic view of American politics that both undergirds and serves as an aspiration for their approach to constitutional theory and design. Republicans focus on deliberation toward the public good. Pluralists celebrate (or fear) group participation. Some worry about protecting minority rights from majoritarianism; others criticize the undemocratic structures within the constitutional system. And recently, there have been efforts to bring greater political realism to constitutional theory, particularly by focusing on the intersection of partisan affiliation and constitutional structure. What is puzzling, however, is that none of these approaches engages directly or systematically with the power of economic elites in American politics. And yet, none of these approaches can be truly successful – even on their own terms – without grappling with the realities of economic power.

Contemporary constitutional theory needs to be rooted in a more realistic description of the American political process. This Article first argues that leading debates in constitutional theory have failed to engage with the reality of elite economic domination, and that without taking into account the role economic elites play in American politics, these theories have serious limitations even on their own terms. Second, it shows that any attempt to design institutions to account for the influence of economic power will face persistent, pervasive, and perverse problems. A central task of constitutional theory going forward must be to overcome or at least mitigate these stumbling blocks. Third, it provides a conceptual framework of possible, albeit imperfect, design options for mitigating elite economic domination. There are a variety of design strategies for grappling with economic power, which cover a wide range in both plausibility and efficacy. Given the persistent problems involved in mitigating the influence of economic power, it is not likely there will be any one single “solution.” Constitutional theory will instead need to consider a second-best approach in which multiple suboptimal strategies are adopted, in hopes that the system as a whole is relatively desirable.

Keywords: constitutional law, constitutional theory

Suggested Citation

Sitaraman, Ganesh, The Puzzling Absence of Economic Power in Constitutional Theory (September 21, 2015). 101 Cornell Law Review 1445 (2016); Vanderbilt Public Law Research Paper No. 15-36. Available at SSRN: https://ssrn.com/abstract=2663689

Ganesh Sitaraman (Contact Author)

Vanderbilt Law School ( email )

Nashville, TN 37240
United States

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