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.”1 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.2 Equalizing power among interests and groups in society is a more worthwhile project than checking, balancing, and equalizing power among governmental institutions.3 In the latter, he concludes, “it is hard to see any spark.”4
One might protest, in light of current electoral politics, that the possibility of unchecked presidential power does indeed have alarming “spark.”5 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.6 In particular, mounting empirical evidence demonstrates that economic elites exercise extraordinary power at every step of the political process.7 Traditional separation of powers mechanisms, whatever their other virtues, do little to check or balance elites’ concentrated power.8 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.9
Thus, rather than taking issue with Levinson’s effort to shift the focus from institutions to interests, I would like to fill in some of what his ambitious project leaves out — and pick up where it leaves off. In so doing, I will make two points. First, 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. Second, confronting power’s distribution with material detail can help elucidate a path for reform. That path, I will suggest, involves reducing legal barriers to collective action, while simultaneously creating new structures for citizens’ collective engagement with government.
I. What the Foreword Leaves Out
Levinson’s Foreword is synthetic, expansive, and nuanced. But it is also, by design, relatively detached from actual problems of power — contemporary or historical.10 It is decidedly not the piece’s ambition to provide an account of how inegalitarian distributions of power affect ordinary people, nor to mine past or current political struggles to redistribute power. Rather, Levinson ultimately seeks to show that, in the abstract, “every law and policy . . . potentially serves to redistribute political power.”11
The Foreword is thus largely agnostic on many real-world problems of power. Levinson cites recent studies about the excessive power of wealthy interests in politics,12 notes past struggles over, for example, black voting rights,13 and mentions other fields, like labor law, where scholars have sought to shift the distribution of power toward workers and away from employers;14 yet he ultimately demurs on whether any particular interests in our society wield too much or too little power.15 Rather, he emphasizes the lack of any “well-developed or widely shared theory of what would count as a fair or equal distribution of power among groups and interests” and “the difficulties of assessing how much power different groups and interests in fact possess.”16
There are costs, however, to abstracting legal discussions of power — to talking about power without detailing its effects and without taking a normative position on its distribution. For one elaboration of those costs, consider the Supreme Court’s 2015 Term and Justice Sotomayor’s dissent in Utah v. Strieff.17 Strieff presents the question whether the discovery of a preexisting arrest warrant attenuates the connection between an unlawful investigatory stop and evidence seized during a search incident to arrest, such that the evidence is admissible. The majority concludes that it does.18
In response, Justice Sotomayor challenges lawyers, law professors, and citizens to move beyond abstraction. “Do not be soothed by the [majority] opinion’s technical language,”19 she implores, laying bare, in vivid detail, the power exercised by the state in the policing of mostly “black and brown” communities.20 “[U]nlawful ‘stops,’” she writes, “have severe consequences much greater than the inconvenience suggested by the name.”21 She urges the reader to confront the systemic power dynamics that result, in part, from doctrinal choices: “[Do] not pretend that the countless people who are routinely targeted by police are ‘isolated.’”22 And, she warns, you too could be one of the many innocent people “subjected to the humiliations of these unconstitutional searches” and sentenced, by arrest, to “the ‘civil death’ of discrimination by employers, landlords, and whoever else conducts a background check.”23
Justice Sotomayor’s stripping of the technical gloss, of the usual legal abstractions, draws attention to how the Court’s doctrine allocates power among societal actors — with significant impacts on people’s lives.24 She also forces the reader to confront how, even before cases reach the Court, they have already been fundamentally shaped by the distribution of power in society. “[I]t is no secret,” she writes, “that people of color are disproportionate victims of this type of scrutiny.”25 To that end, Justice Sotomayor might also have observed that the same communities subject to unconstitutional and debasing searches are also served by chronically underfunded and short-staffed public defenders, weakening their ability to influence courts. Indeed, she might have noted that Strieff itself is part of a Supreme Court docket in which the government is a skilled, repeat player but criminal defendants are almost never represented by expert counsel.26 And she could have pointed out that these inequities combine with felon disenfranchisement laws, many dating to the Jim Crow era, to reduce the political power of the same communities.27
Profound inequities in power are by no means limited to criminal law. Consider employment and consumer law, and, in particular, the problem of mandatory arbitration clauses in contracts of adhesion — an issue the Court is likely to confront again in the near term.28 Consumers, employees, and small businesses are routinely required, as a condition of doing business, to sign contracts that require them to arbitrate, rather than litigate, any claims. Emphasizing that courts must “rigorously enforce” arbitration agreements according to their terms, the Supreme Court has required arbitration even when the contracts deny the possibility of collective action or impose other procedural hurdles.29 In so doing, the Court has tended to obfuscate the striking disparity of power underlying the contracts — as well as the way the arbitration doctrine effectively deprives many consumers, employees, and small businesses of the power to vindicate their legal rights. Justice Kagan had this critique in American Express Co. v. Italian Colors Restaurant30: “Here is the nutshell version of this case, unfortunately obscured in the Court’s decision. . . . The monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.”31 Indeed, the monopolist also gets to limit the power of citizens to affect substantive policy outcomes of government by post hoc rendering statutory rights unenforceable.
As these and other recent cases show,32 the problem of power in public law is neither abstract nor theoretical. While it may be difficult to assess precisely “how much power different groups and interests in fact possess,”33 it is not difficult to observe the systemic power inequities that underlie many of these cases and that, in turn, are shaped by the Court’s decisions.34
Moreover, as these cases illustrate, the human stakes of law’s distribution of power are significant. By arbitrarily denying power to certain groups, we fail to recognize or validate the equal moral worth of persons: we “risk treating members of our communities as second-class citizens.”35 By failing to grant citizens effective power to vindicate hard-fought statutory rights, we undermine the rule of law.36 And, ultimately, when citizens lack effective power to “influenc[e] what the government will or will not do,”37 whether because of the outsized influence that economic elites and big business wield in governance or because of other factors, like systemic racial or gender subordination, we erode, even eviscerate, democracy. As history instructs, lacking effective access to and power over democratic processes and institutions, people may well turn elsewhere, including in ways that surprise political elites.
In short, confronting the human dimension of power hierarchies helps bolster Levinson’s argument that constitutional theory should care about how power is distributed — and not just among governmental institutions.
II. Where the Foreword Leaves Off
Levinson closes his Foreword by arguing that “pockets of public law” ought to be linked to one another and to structural constitutionalism “by a common concern with balancing and diffusing power.”38 I’ll put the point more bluntly: there is a critical need for a range of structural, power-shifting reforms to our law, our economy, and our democracy.39
What such reforms might look like and how they might be achieved are difficult questions. As Levinson highlights, the challenge of locating, measuring, and redistributing power is significant; the task is already, or could be, the subject of scholarship in numerous substantive fields — including labor, antitrust, financial regulation, and tax — as well as for scholars writing in constitutional and administrative law.
For his part, Levinson imagines either “calling upon courts (and legislatures) to marshal the resources of administrative law, the law of democracy, constitutional rights jurisprudence, and any number of other regulatory fields with an agenda of redistributing and equalizing political power among groups in society” or, more modestly, pushing some or all of these areas of law “toward a more explicit and sustained focus on the distribution and practical efficacy of democratic-level power.”40 Yet, given the scope and focus of his piece, he understandably abjures any concrete proposal.41
In addition, although Levinson counsels against despair, he offers little reason to believe that “calling upon” courts and legislatures will accomplish much. Rather, he questions the ability of courts to make necessary descriptive and normative assessments.42 And history suggests Levinson is correct. While courts may play an important role in supporting or stymieing efforts to create more egalitarian distributions of power, they are rarely the sole or leading force for change.43
Where, then, might a sympathetic reader turn to think about how public law might actually achieve a more egalitarian distribution of power?44 One place to look is to historical and contemporary social movements that have opposed, and are opposing, hierarchies of power.45
Ongoing low-wage worker campaigns provide one source. Workers seeking higher minimum wages, new scheduling and benefit laws, limits on private domination, and new protection for those long or newly excluded from labor and employment regimes (think restaurant and domestic workers or Uber drivers) are attempting to shift the distribution of power in politics and governance, as well as in the economy.46 In so doing, they are pushing against doctrine that restricts their ability to act collectively through strikes, protest, and other concerted action while developing new structures for participation in policymaking.47 Here, an opinion not written in the 2015 Term casts a long shadow. As Levinson points out, the Court in Friedrichs v. California Teachers Ass’n48 “came within a vote of doing away with mandatory representation fees and thereby decimating public sector unions,” with potentially devastating effect on the extent of political power wielded by workers generally.49 The issue might ultimately return to the Court; in the meantime, unions, still adequately funded, are seeking to build new organizations and more power for workers, while their opponents are seeking to weaken the power of worker organizations through new legislation.50
Or consider the movement around policing — the subject of Strieff. As scholars have argued, Black Lives Matter is neither quixotic nor aimless. Rather, it is an effort of citizens to hold police departments accountable, an effort of “[t]raditionally powerless populations” to exercise power over constitutional norms and governmental action.51 And, as has more recently become clear, it is also an effort to make broader changes to how power is organized in society, including by democratizing community institutions.52
These concrete struggles and others, both historical and contemporary, highlight the inevitability of actual disagreement and contestation, not just deliberation, if power is to be shifted in governance. To that end, the ongoing social movements embrace two interrelated paths: First, they contest doctrine, legislation, and legal practice that disempower organization, reduce availability of collective action as a tool, and enable social and economic domination. Second, they work to build new structures to facilitate countervailing power of civic organizations in government; they seek to remake policymaking bodies to grant workers, consumers, citizens, and residents greater influence in substantive outcomes.53
To support, deepen, and build on existing efforts — to transform possibly fleeting social movements into durable and effective forms of citizen power — lawyers, policymakers, and legal scholars ought to pursue these two strategies in a wide range of substantive areas and venues. Doing so, however, will involve attention to the actual reality of how power is distributed as well as normative judgments and real struggle about where and by whom power should be held.
* Assistant Professor, University of Michigan Law School. Thanks to Sam Bagenstos, Richard Primus, and Daphna Renan for helpful suggestions, to Daryl Levinson for generously welcoming these critiques, and to the Harvard Law Review for terrific editorial assistance.