Foreword: Looking for Power in Public Law
108 Pages Posted: 13 Nov 2016 Last revised: 14 Dec 2016
Date Written: November 10, 2016
Constitutionalism is the project of creating, allocating, and constraining state power. Doing any of these things successfully requires constitutional designers and interpreters to determine how power should best be distributed among political actors and institutions, how much power these actors and institutions in fact possess, and how power shifts in response to legal and political arrangements and interventions. Yet, for all the attention that issues relating to power have received in U.S. constitutional law, courts and theorists seem surprisingly at sea about basic questions of where power is located in the American political system, how it should be distributed or redistributed, and even what “power” means or which kinds of power should matter for different purposes.
A large part of the problem is that constitutional law has been looking for power in the wrong places. At one level, the misdirection has occurred because assessing the power of government institutions and officials is a much more difficult task than many courts and commentators seem to recognize. Power over the state is entangled with the power of the state. Power is often located elsewhere than the site of action and camouflaged by inaction. Apparent constraints on power may actually serve to augment it; and enhancements of power may turn out to have the opposite effect when viewed in dynamic perspective. Formal, legal grants of and limitations on power may have little to do with the de facto ability or inability to influence policy outcomes. Each of these observations ratchets up the difficulty of seat-of-the-pants assessments of where power is actually located in government; taken together, they cast considerable doubt on the veracity of many conventional understandings of who is wielding or accumulating power in government, and also on the ability of courts and armchair observers to make such judgments.
More fundamentally, the complete answer to the question of who possesses political power — or, as Robert Dahl famously put it, “who governs” — cannot be institutional actors like Congress or the President. The ultimate governors in a democracy are the voters, political parties, interest groups, and other democratic actors who compete for control over government institutions and attempt to effectuate their policy interests. Focused on the power of institutions, constitutional analysis seldom sees how that power is passed through to the level of interests. Yet power at the level of constitutional structure is, in an important sense, merely superstructural.
Constitutional law’s normative goal(s) of checking, balancing, equalizing, or diffusing power seem similarly misplaced. The constitutional impetus toward diffusing and balancing power might be better aimed at the democratic-level political actors who actually possess and compete for it. Public law has, in fact, sometimes been oriented in this direction, in the domains of administrative process, the law of democracy, and constitutional rights jurisprudence on the Carolene Products model. These and other pockets of public law might be productively linked with one another, and with the values of structural constitutionalism, by a common concern with balancing and diffusing power—not at the level of government institutions but at the level of political interests and social groups. The ambition of this Foreword is to show how relocating power and the ideal of redistributing it more fairly holds some promise to illuminate who governs and how constitutional law does and should decide.
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