Confronting Power in Public Law
8 Pages Posted: 17 Dec 2016 Last revised: 10 Jan 2017
Date Written: November 10, 2016
Professor Daryl J. Levinson's important Foreword correctly argues that traditional separation of powers theory fails to consider the actual distribution of power in society. Accordingly, as Levinson details, such constitutional theory does not adequately account for power's actual exercise in government. Levinson's analysis, however, is limited by his decision to treat problems of power primarily at a high level of abstraction and his reluctance to make normative judgments about contemporary distributions of power. Confronting particular social problems and their human consequences, rather than remaining at a high level of abstraction, can deepen the account of how power functions in public law. Confronting power’s distribution with material detail can also help elucidate a path for reform. That path, I suggest, involves reducing legal barriers to collective action, while simultaneously creating new structures for citizens’ collective engagement with government.
Keywords: separation of powers; constitutional law; inequality
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