52 Pages Posted: 8 Jun 2004
Fear and loathing of big and growing government has been a persistent theme in American political and constitutional discourse since the Founding. A correspondingly enduring and pervasive assumption in constitutional law and theory is that government officials are empire-builders, imperialistically or avariciously intent upon maximizing the power or wealth of their offices and institutions. Thus, discussions of federalism often start from the premise that an imperialistic national government will seek to expand the policy space it controls at the expense of state governments, while equally imperialistic state governments, if afforded sufficient channels of influence, will compete for power and defend their own turf. Similarly, the law and theory of constitutional separation of powers presume that an imperialistic legislative branch of the federal government will seek to aggrandize its power at the expense of the executive, and vice-versa. Courts and constitutional theorists believe that one of the primary virtues (or vices) of federalism is that it fosters avaricious competition among state and local governments for tax base. Theorists and designers of constitutional remedies likewise take for granted that governments will be discouraged from taking property or violating constitutional or statutory rights by the requirement that they pay monetary compensation to the victims - because the loss of dollars will hurt avaricious governments. In these, and other, contexts, consequentialist analyses of constitutional rules and structures start from the premise of government empire-building.
This article questions the theoretical basis for believing that government predictably seeks to build empires of either the imperialistic or avaricious variety. Government institutions do not have empire-building interests, or any other kind of interests, apart from the interests of the officials who comprise them. It is far from clear that officials derive significant self-interested benefits from increasing the jurisdiction or budget of their institutions. Even if they did, however, in a minimally functional democracy, the self-interest of these officials is usually subordinated to - or, more accurately, aligned with - the preferences of voters and donors. And the policy preferences of these politically efficacious constituents, in turn, will not correlate in any systematic way with the size or wealth of government institutions. In a nutshell, predictions of government empire-building rest on the implausible assumption that government officials serve the interests of the institutions in which they are situated more than their own self-interest or the interests of their constituents. This is simply not how democratic governments work.
Suggested Citation: Suggested Citation
Levinson, Daryl J., Empire-Building Government in Constitutional Law. Harvard Law Review, Vol. 118, 2004-05. Available at SSRN: https://ssrn.com/abstract=555687