Confronting Power in Public Law

In his important and provocative Foreword, Professor Daryl Levinson criticizes American constitutional law for failing to attend sufficiently to questions of power, which he defines as “the ability to effect substantive policy outcomes by influencing what the government will or will not do.” As Levinson details, structural constitutional law has focused on how power is distributed among governmental institutions. It has not consistently or adequately considered how power is — or should be — distributed among social groups. Ultimately, Levinson suggests that the narrow focus of separation of powers law and theory on “equalizing the power of government institutions” lacks normative force. Equalizing power among interests and groups in society is a more worthwhile project than checking, balancing, and equalizing power among governmental institutions. In the latter, he concludes, “it is hard to see any spark.” One might protest, in light of current electoral politics, that the possibility of unchecked presidential power does indeed have alarming “spark.” But I fundamentally agree with Levinson’s analysis. Like Levinson, I have argued that separation of powers theory does not sufficiently attend to how power is distributed in society and therefore how power is actually exercised in government. In particular, mounting empirical evidence demonstrates that economic elites exercise extraordinary power at every step of the political process. Traditional separation of powers mechanisms, whatever their other virtues, do little to check or balance elites’ concentrated power. Given this political economy, I have argued, public law ought to focus more on facilitating the countervailing power of ordinary citizens and their organizations in governance