StructuralJustice and the Infrastructure of Inclusion

K. SABEEL RAHMAN

Introduction

In August 2019, educators in Flint, Michigan, saw a dramatic spike in the number of schoolchildren needing special care—following years of a crisis of lead poisoning afflicting the city's water supply with devastating conse­quences for the long-term health and well-being of the community, particu­larly its children.¹ The experience of Flint is tragically common: from Detroit to Baltimore to Newark to Washington, D.C., there is an ongoing crisis over the access of communities, especially communities of color, to that most ba­sic human necessity of water.

But the water crisis in American cities is not just about the failures of water utility officials to treat water supplies adequately for contaminants. The crisis is in part a product of deeper systemic rules: failures of govern­mental agencies to monitor environmental conditions, failures of water utility boards to ensure safe and cheap access; the deeper conditions of mu­nicipal austerity and budget cuts that have placed further strain on water infrastructure; the increasing privatization of those utilities such that many of them are now owned by profit-maximizing private equity funds; and his­torical patterns of racial segregation in urban planning and zoning that have concentrated poverty and environmental toxins particularly among commu­nities of color.³

The water crisis exemplifies a broader pattern in our twenty-first-century political economy. We are living in a period of devastating inequality—an inequality that is the product of background economic and political- institutional rules.

This chapter focuses on two key arguments. First, the project of advanc­ing structural justice—of realizing an inclusive democracy and economy that overcomes these systemic forms of exclusion and inequity—requires con­struction of new forms of public, democratic power capable of remaking background rules of our economy and society. It is virtually impossible to redress and prevent structural injustices like the concentration of poverty and environmental harm on communities of color and arising from the way cities are zoned and built without institutions that have the ability and the power to monitor such systemic patterns and remake background rules of urban planning, energy production, and market inequities to remedy these harms. The project of structural justice, then, is also closely tied to the proj­ect of democracy—of constructing new institutions through which we the people engage in collective action to govern ourselves and our larger politi­cal economy.

Second, the political fights over these political institutions—the instru­mentalities of inclusion—represent a critical battleground where ideas of democracy, freedom, domination, and neoliberalism have real purchase.

The implication, then, is that the project of advancing a vision of twenty- first-century democracy requires both a moral and institutional project of building new public institutions charged with advancing and enforcing values of equity and inclusion and overcoming the legal and institutional strategies for dismantling these public institutions. There are many barri­ers to advancing a vision of justice, and one of those barriers is the role of government in particular. The administrative apparatus—encompassing state actors like departments of labor, environmental justice, or civil rights enforcement—represent one of the key underlying political infrastructures needed to realize justice. But, crucially, this chapter argues that the goal for a project of justice must be more than simply “restoring” or “defending” the idea of good government; it must be instead to build a specifically democratic conception of government in which structural roots of injustice are made visible and changeable through state action, and where that state action is itself democratically constituted. In other words, we must both build gov­ernmental power capable of dismantling the root drivers of injustice and at the same time construct these instruments of state power in democratically accountable ways.

I begin with a conceptual foundation for the argument, suggesting that today's inequality crisis should be understood as a problem of domination— the concentration of arbitrary, unaccountable power.

Next, I take a more in-depth look at the political economy of neoliberal­ism, focusing in particular on the political-institutional dimensions of this project: how neoliberal ideas and interests have driven American institu­tional change, specifically to dismantle those constitutional, administrative, and local regimes at the heart of efforts to promote greater economic inclu­sion and democracy. I then bring attention to the affirmative project implied by this analysis: the reconstruction of administrative institutions that will be critical to realizing in practice values of inclusive economic freedom and democracy.

Domination, Neoliberalism, and the Problem of Governance

FROM DOMINATION TO EMANCIPATION

Before we can understand what kinds of democratic, political institutions are needed to realize a more equitable political economy, we first need to understand the nature of the inequities we are looking to dismantle and overcome.

Consider, for example, the kinds of inhibitions on freedom and moral standing that arise in context of the unchecked “private government” of the workplace, where labor is at the mercy of corporate owners and manag­ers, unrestrained by checks and balances.⁶ Or the ways in which monopolies and finance can, by virtue of their market power and control over firms and industries, set unfair and rent-extractive terms for consumers and workers alike. Even if these forms of control—in the firm or by corporate titans—are deployed charitably and benevolently, the reality is that workers and com­munities remain at the mercy of the goodwill and good faith of those with economic power. We can think of these economic relationships as exempli­fying a form of dyadic domination: a binary relationship between two visible and identifiable parties (workers and managers; producers and financiers) characterized by a severe power imbalance. This is precisely the kind of un­freedom that animates movements for worker justice and labor organizing.

There is a second kind of domination, which we might call systemic domi­nation. It refers to conditions where the dominator is not a discrete actor. Rather, systemic domination arises from the cumulative effects of systemic practices and background rules—from systems of white supremacy, patterns of racial and gender discrimination and structural economic inequities, to the concentration of environmental and health harms on communities of color that constrain the lived reality of membership and inclusion. For exam­ple, systemic domination is one way to understand how the combination of historical disinvestment and redlining, predatory lending, and gentrification can combine to produce racially disproportionate harms on communities of color. Even if landlords, lenders, and policymakers may not always intention­ally discriminate, the aggregate result of historical and current policy choices means that there will be a major racial disparity in wealth and opportunity.

The political realm is marked by the same background structural disparity of power and the problem of political domination. As a growing body of so­cial science research has documented, this concentration of political power is often in direct relation to efforts to further concentrate economic wealth, and vice versa.⁷ As political power is concentrated in more unaccountable ways, the result is precisely the threat of domination that animates attempts to fragment, distribute, and hold accountable political power—whether through classic republican constitutional forms like the separation of pow­ers, or democratic systems like elections, or other forms of democratic in­stitutional design. Indeed, democracies don't just “die,” they are dismantled, as interest groups seek to gain greater advantage, increasingly altering the background rules of politics—through voter suppression, gerrymandering, changes in campaign finance laws, and the like—to accumulate greater and greater political power.

In each of these three variations of dyadic, structural, and political domi­nation, the common challenge is not just about economic shares of who gets how much; rather, it is about agency and power. From the manager and mo­nopolist to the background rules of economic and racial subordination to the hoarding of political power, each of these types of domination is driven by a kind of unequal, functional sovereignty where one set of actors—private firms, unchecked political elites, policymakers—exercise power over indi­viduals and communities, restraining their freedom and life opportunities without sufficient contestation, accountability, or responsiveness. Absent checks and balances on—and outright ownership of—these forms of power, those individuals and communities affected by these actors are not truly free to flourish, thrive, and live lives of value. Furthermore, these different modes of domination often interact and intersect; as Tommie Shelby describes in his chapter in this book, for example, the toxicity of the prison system stems from the way in which mass incarceration fuses the economic domination of privatization and the profit-motive with systemic racism and the domina­tion of an unaccountable state that exercises carceral power, particularly over communities of color.

Unlike “inequality,” domination as a conceptual framework points to a very different approach to remedies. The goal is not merely to redistribute income or wealth but rather to build a political economy in which we limit those coercive powers and systems that are not subject to checks and bal­ances. It also requires the affirmative investment in domination's inverse: political agency, the capacities of communities to contest and check con­centrated power and to participate in the (re)shaping of political, economic, sand social conditions. As Danielle Allen, Deva Woodly, and Julie Rose sug­gest in their respective chapters, the pursuit of justice is really the pursuit of an affirmative conception of human flourishing, of a world in which we can imagine emancipation from systems of injustice, and celebrating difference without domination.

Structural justice, then, requires checks and balances on these various forms of domination. The degree to which democratic equality is realized in practice depends on the degree to which these public, private, and sys­temic forms of domination are checked. This in turn suggests that the re­alization of inclusive and equitable democratic freedom requires a form of state power—and in particular, administrative regimes that are capable of, and responsive to, those threats of domination. Furthermore, this construc­tion of state power itself needs to be democratically accountable, otherwise we risk replicating relationships of political domination.

The construction of state capacity—and the degree to which that capacity is democratically constituted—is thus a key battleground where visions of justice are made real or are frustrated. Indeed, the task of building such in­stitutions for accountability, agency, and democracy against different forms of domination faces a critical barrier in the set of ideas, interests, and insti­tutions that have dominated our political economy over the last 50 years: neoliberalism.

NEOLIBERALISM AND THE BATTLE OVER PUBLIC POWER

A central challenge to this vision of democratic freedom—and a key driver of domination—is neoliberalism. While the term is often used widely, neo­liberalism is not just a synonym for capitalism, nor is it simply about a pol­icy agenda of unfettered markets and hostility to government regulation, though these are related concepts. Rather, neoliberalism is better understood as a worldview: an individualized, marketized notion of freedom and social structure that emphasizes the supremacy of market transactions and a hos­tility to collective social goods. And neoliberalism is also best understood as a political agenda, where specific interests have strategically and opportu­nistically driven institutional changes animated by and validated under this worldview. While a full exposition of neoliberalism and its elements is be­yond the scope of this chapter, it is important to understand these two com­ponents of neoliberal political economy in order to ground our understand­ing of what kinds of political institutions need to be (re)built to overcome domination and realize a more liberatory and inclusive twenty-first-century political economy.

As a worldview, neoliberalism seeks apolitical, economistic forms of social ordering. This vision of political economy evokes values of agency, freedom, and neutrality, but in ways that operate to evade or contain democratic poli­tics. Consider, for example, Friedrich Hayek's canonical account of market order. For Hayek, the freedom of market ordering stems from the abilities of the market to create spontaneous, welfare-maximizing order, free of the inevitable failures and corruptibility of political “central planning.” The out­comes of such a system are necessarily fair and not subject to claims of “so­cial justice” since markets are by their nature (for Hayek anyway) impersonal systems without moral will or discriminatory intent.⁸ Crucially, this world­view is not just about economics; rather, it has a central political dimension as well. As a result, the political institutions needed to sustain social welfare, on this view, are simply those basic rules of property, contract, and physical security that enable markets to function.

Conceptually, this neoliberal worldview levels a dual attack on ideals of democracy and inclusion. First, by valorizing markets as self-correcting and welfare-enhancing, this framework erases from view the kinds of dyadic and structural domination that afflict economic realities for so many. Second, this worldview is skeptical if not outright hostile to various forms of governmen­tal economic policy. Baked into this account is a vision of politics as inher­ently corruptible, inefficient, and ineffective. Insofar as there is an affirmative vision of legitimate state action in this account, it is a narrow technocratic notion of public power tethered to expertise, focused on the minimalist task of mitigating market failures rather than on more robust and transformative visions of equity, inclusion, and democracy-enhancing public policy. The ef­fect of this critique is to cut off at the knees many well-intentioned policies for social justice: however admirable the goals of mitigating inequality or promoting opportunity, if government is more likely than not to be captured or to fail, then economic regulation and public policies are self-defeating.⁹ At the same time, the neoliberal worldview is not truly anti-statist but instead deploys state power to realize this illusion of stateless “free markets.” Think of, for example, state regimes of financial (de)regulation; the enforcement of rules of property, tort, and contract law; the deploying of state power to frac­ture other forms of solidarities and collective action such as organized labor or public ownership. These are affirmative exercises of state power through which a neoliberal order is built and realized.

However, neoliberalism has a political dimension in another sense: not in its worldview as articulated by intellectuals, theorists, and academics, but in the way in which this worldview has fueled and justified a specifi­cally political project of organized interests and policymakers, as an exer­cise of political power and political-institutional change. Indeed, the idea of neoliberalism has helped animate and legitimize the efforts of particular constituencies to remake economic and political institutions in ways deeply inimical to democracy and conducive to domination. As recent scholarship in history has documented, key constituencies seized on neoliberal concepts to advance their policy agendas. The business community organized more effective lobbying and advocacy vehicles through the Chamber of Commerce, the Business Roundtable, and other coordinating systems, backed in part by the parallel formation of a validating ideas infrastructure as funders like the Olin Foundation helped produce a generation of lawyers and economists who could develop and validate these policy changes.¹⁰ A similar story has been traced in context of civil rights and racial inequality. Indeed, many of these same funders and interest groups backing the rise of big business under the rubric of free market/anti-government ideas also deployed these tropes to push back against federal commitments to civil rights following the 1954 landmark school desegregation ruling of Brown v. Board of Education and the passage of the Civil Rights and Voting Rights Acts in 1964 and 1965.¹¹ This is not to say that all of these thinkers, interest groups, and elected of­ficials moved in lockstep. Rather, neoliberal concepts of markets, individual free choice, and skepticism of government formed a common conceptual resource and glue across these different interests—business interests, social conservatives seeking to restore “traditional” roles and orderings after the upheavals of movements seeking to advance racial and gender justice, and those more openly hostile to desegregation.¹²

This combination of interests and ideas produced a set of neoliberal insti­tutions, remaking economic and social policy. These efforts were successful in undoing much of the New Deal social contract, moving economic policy away from its prior focus on Keynesian macroeconomic management and a robust safety net. The result was a significant shift in public policy toward deregulation of finance and corporate power, the undermining of organized labor, and the undoing of the social safety net. These shifts originated in the 1970s but accelerated through the administrations of Ronald Reagan and George H. W. Bush—often gaining adherence among centrist liberal policy­makers like during the Clinton administration.¹³ This in turn exacerbated the lived realities of economic domination for many communities. Similarly, these efforts at neoliberal policy change yielded a gradual erosion of civil rights protections and a recreation of patterns of racial segregation and in­equality everywhere from urban planning to predatory lending to the exclu­sions of women and communities of color from much of the modern safety net.¹⁴ Consider, for example, how neoliberal concepts of freedom of choice are deployed to justify white flight or the resistance to desegregation or legal claims by corporations to resist economic regulations and protections for reproductive rights under the guise of freedom of association.

Yet despite this deregulatory push, the politics of this neoliberal era have also amplified the excesses of governmental coercion that serve to preserve inequality and the hoarding of wealth and opportunity: the rise of mass in­carceration, crackdowns on labor, and the like. Neoliberalism, then, is not really an abandonment of the state but rather a strategic use of public policy to encase existing economic, racial, and gender inequities, immunizing them from contestation.¹⁵ The notion that neoliberalism is the rejection of state power is itself, then, an illusion.

The net result is a systematic exercise of state power that has opportu­nistically dismantled key democracy- and equity-enhancing institutions, concentrating control and hoarding wealth and opportunity for the few, all validated by an appeal to free markets and ineffective government as cover. Indeed, it is easy to cast contemporary battles over “big government” and “free markets” as a continuation of long-running philosophical debates between laissez-faire and libertarian political economy and more egalitar­ian conceptions. But these contemporary fights take place in context of an already-existing democratic institutional context where institutions—like la­bor law, economic regulation, civil rights enforcement regimes, and more— are already in place, thanks to the state-building efforts of prior waves of so­cial reform. As a result, the threat to dismantle or repurpose these institutions has a very direct implication for the perpetuation of structural injustice by altering a set of instrumentalities and tools whose existence makes possible the contestation and mitigation of structural forms of injustice.

Highlighting the political-institutional dimensions of neoliberalism as a worldview and as a policy agenda is critical for informing our approaches to structural justice. If the problem of inequality and injustice is a structural one rooted in domination—the concentration of unaccountable economic and political power—then it follows that freedom and inclusion require democracy—the institutionalization of accountability and agency of com­munities over these forms of power. But neoliberal thought and policies op­erate to both erase the idea of domination (through appeals to frictionless markets) and the institutions built to counteract domination (through eco­nomic and social policies for regulating corporate power, providing public goods and a safety net, and enforcing civil fights and inclusion). The chal­lenge, then, lies in constructing new democratic institutions capable of real­izing inclusion—and undoing the legal-institutional changes brought about in the neoliberal era.

The Political-Institutional Imagination under Neoliberalism

Structural injustice, I suggest above, manifests through different types of domination: the dyadic domination of individuals and communities un­der arbitrary private power (of managers, firms, financiers, or monopolists); the structural domination whereby background rules of economic and so­cial ordering create relations of power and subordination such as systemic racialized or gendered discrimination; and the public domination by unac­countable state actors. Freedom requires the dismantling of these forms of domination and the fair and equal access to those basic goods that are es­sential for human flourishing. But that goal in turn requires that we remake our background economic and social order—and that we create new forms of public power capable of effectively and accountably advancing policies in pursuit of these aspirations.

None of this is novel; indeed, the history of American political economy and state-building can be told in part as a story of successive waves of struc­tural reform aimed at creating new modes of democratic self-governance suited to this challenge. The Industrial Revolution, for example, spurred the organization of the labor movement, the Progressive and Populist move­ments, and the creation of the modern administrative state dedicated to protecting labor and consumer rights and reining in corporate power. The movements for freedom from slavery and its legacy—whether the First Re­construction of the post-Civil War era or the Second Reconstruction of the 1960s—similarly transformed not only the moral imagination of our democ­racy to propose a racially inclusive democracy, but also attempted a legal- institutional transformation: creating new constitutional requirements and administrative bodies to protect civil and voting rights.

It is precisely because of these advances that the political-institutional effects of neoliberalism are so pernicious. A growing literature has docu­mented how socioeconomic inequity is perpetuated by a failing democratic system, as wealthier and whiter communities are more able to vote, to influ­ence politics through donations, or to be represented among candidates and policymakers.¹⁶ No doubt, ensuring a well-functioning and representative electoral democracy is critical to making government respond more readily to the needs of the whole public. But what is often overlooked is how the day- to-day operations of governance have also been skewed to perpetuate rather than dismantle domination.

As a political agenda, neoliberalism has involved a systematic reconfigura­tion of state power through its attack on both the idea and the reality of pub­lic power, with the effect of dismantling these tools, in ways that help restore and institutionalize prior relationships of economic, racialized, gendered inequity and subordination. These long-term effects of neoliberal thought and policy can often be overlooked in the day-to-day battles over individual economic policies or political headlines. But when viewing the cumulative result of the ideas, interest group pressures, and policy changes of the last 40 years, we can see a clear impact on remaking state power to serve, rather than dismantle, the perpetuation of domination and inequity in our political economy. Across different policy domains, three clear shifts stand out: (1) the privatization of governance; (2) the constricting of democratic public power; and (3) the weaponization of administration. These strategies serve to frus­trate the aspirations for emancipation, flourishing, and structuraljustice; they also represent modes of hoarding and shifting power, along the lines that Yochai Benkler also describes in his chapter in this volume.

THE PRIVATIZATION OF GOVERNANCE

An obvious effect of neoliberal thought and policy is the deregulation of the market. Consider, for example, how the administration of Donald Trump focused on dismantling the Consumer Financial Protection Bureau (CFPB) while loosening labor, environmental, financial, and health insurance regula­tions. Nor is this a recent phenomenon: policy fights over deregulation have been a mainstay of both conservative and liberal policymakers especially since the Reagan era of the 1980s.

But these policies are about more than just undoing economic regula­tions. They represent rather a shift in power and governance away from pub-

lic institutions toward private actors. Consider the CFPB's “forced arbitration rule.” One of the central features of the modern economy is how companies increasingly deploy mandatory arbitration clauses in consumer and labor contracts, requiring consumers and workers alike to take any disputes to pri­vate arbitration rather than to formal legal proceedings in court or in ad­ministrative agencies. But arbitration is both costly and involves procedures that are highly limited, skewed to favor the interests of the business itself. In late 2016 through 2017, the CFPB issued a regulation barring these clauses from consumer contracts.¹⁷ After taking the White House in 2017, the Trump administration with support from Congress overturned this rule—and in the following months, sought to defund and weaken the CFPB itself.¹⁸ This rep­resents more than a policy a shift; it is rather a major change in who gets to govern and decide matters of economic unfairness, moving that power away from public institutions like the courts and the CFPB to the private halls of arbitration.

Or consider how economic deregulation shifts the balance of power for workers and firms. The undoing of labor regulations and workplace protec­tions has been a recurring pattern in both the Bush and Trump adminis­trations. Without workplace protections for safety, dispute resolution, and pay equity issues, workers are essentially left subject to what Elizabeth An­derson has called the “private government” of managers, firms, and profit­maximizing boards. Similarly, the reduction of enforcement of antitrust laws starting with the Reagan administration in the 1980s and the undo­ing of financial regulations from 1980 through the 2009 financial crisis, and then again under the Trump administration, reflect a similar shift in power, a change in who is actually governing the economy. As Brandeis and other antitrust reformers of the early 1900s noted, the modern financial giants like J. P. Morgan and monopolists like the railroad, telecom, and oil titans of the era were effectively the decision-makers of the modern economy: through their control of these essential goods and services, they could decide which communities could bring their goods to market, what businesses would rise or fall, and what prices could be extracted in return.¹⁹ The same is true of today's financialized economy, as private equity and investor interests—and new forms of corporate concentration—increasingly govern the market to fuel their returns, rather than to serve overall public welfare.²⁰

Thus, while deregulation in a neoliberal era is often justified as a return to more efficient market allocation and a celebration of market freedom, un­trammeled by government interference, this is misleading. Markets are not intrinsically free; rather, they are simply different institutional forms of al­locating power and coming to collective decisions. And crucially, they repre­sent a mode of governing and decision-making where property owners and wealthier interests are by definition more influential. The move to privatize, then, is not about freedom versus government; rather, it is about transfer­ring decision-making from public government to private government. This is not to say that public government is intrinsically good or virtuous; indeed, governments and public agencies can often themselves fail or become cap­tured or corrupt under pressure from the same kinds of wealthy interests that dominate the economy. But the move to privatization and financializa- tion do represent a clear attempt to allocate economic decision-making to spaces that are not subject to the checks and balances of the Constitution or to the public forms of accountability in democratic electoral politics.²¹

CONSTRICTING EMANCIPATORY PUBLIC POWER

Running in parallel to the push to privatize government is a second pattern in neoliberal statecraft: the constricting of what remains of public governmental power in the first place. This pattern is a product of legal and policy decisions that work to narrow the range of permissible activities that government can undertake in the first place—and to impose greater barriers and hurdles on the exercise of governmental authority. A century ago in the Progressive era, as reformers sought to build the modern social contract and labor move­ments, they faced a powerful counterreaction from business interests and a conservative judiciary, which in cases like the 1905 Lochner v. New York struck down such reforms under laissez-faire conceptions of state and market.²² Lochner came to stand in the popular and political imagination of the era for both a narrow vision of market freedom that ignored the domination of workers and communities at the hands of new industrial corporations—and for the ways in which the law was being deployed through judicial decisions to kneecap attempts by democratic movements and legislatures to mitigate these excesses of industrial capitalism. In the modern era, this threat of "Lochnerism," of the constricting of governmental power to preserve imbal­ances of economic power, has revived in a variety of forms.

First, a central project of the neoliberal and conservative legal imagina­tion since the 1970s has involved a gradual narrowing the constitutional powers of Congress to enforce its most transformative egalitarian provisions in the Fourteenth Amendment.

In the aftermath of the Civil War, the radical Republicans of the Recon­struction era passed the Thirteenth, Fourteenth, and Fifteenth Amendments, which, though not without faults, radically remade the Constitution, for the first time establishing a constitutional democracy in the United States no longer formally rooted in slavery. While the Thirteenth Amendment for­mally abolished slavery, it was the Fourteenth Amendment which sought to ensure equal protection, due process, and the privileges and immunities of citizenship—and which allocated to Congress for the first time the power to legislatively enforce these goals. Yet right away, the more radically eman­cipatory potential of the Fourteenth Amendment was undercut. As Black Americans exercised political power and gained elected office at record levels in the 1870 and 1872 elections, a wave of white supremacist paramilitary vio­lence violently attacked Black voters and leaders. The Supreme Court then intervened in a series of cases in the 1870s to gut the enforcement powers of Congress, render newly passed civil rights legislation moot, and throw out the murder convictions for perpetrators of political violence against Black voters.²³ It was not until a century later that Brown v. Board (1954), the Civil Rights Act (1964), and the Voting Rights Act (1965) renewed the promise of the Fourteenth Amendment's protections for equality.

Though less blatant, the backlash to the civil rights movement operated in a similar fashion: the combination of a conservative Supreme Court and a Congress under pressure from neoliberal and anti-civil-rights pressures gradually eroded the Constitutional and legislative provisions aimed at en­forcing social and economic equality. This shift is particularly pronounced since the 1970s and the Supreme Court's lurch from the liberal Warren court to a more conservative majority following Richard Nixon's aberrational four Supreme Court appointments. For example, the Fourteenth Amendment equal protection doctrine moved to a more restrictive intent requirement for proving constitutionally invalid racial discrimination—effectively im­munizing various forms of structural economic and racial injustice, such as racialized criminal justice enforcement and zoning practices, from consti­tutional challenge.²⁴ Under the Rehnquist and Roberts courts of the 1990s and 2000s, the Supreme Court similarly moved to a more neutral, color-blind view of equal protection that effectively removed requirements for school desegregation.²⁵ Similarly, the Fourteenth Amendment's provisions of equal protection and due process are preemptively narrowed by a series of deci­sions spanning the Redemption era and the Rehnquist court that imposed strict “state action” requirements, further immunizing various forms of pri­vate discrimination from constitutional challenge.²⁶ The Supreme Court also restricted Congress's powers under the Fourteenth Amendment to enforce inclusion, most infamously in John Roberts's 2013 ruling gutting the Voting Rights Act—leading directly to the modern wave of voter suppression tactics across the country.²⁷

A second line of attack has involved the weaponization of the First Amend­ment to similar effect: the narrowing of the permissible scope of equality­enhancing governmental action. Consider, for example, how in recent years free speech and free association claims have been deployed by businesses seeking to excuse themselves from antidiscrimination protections for LG- BTQ individuals or from federal requirements to ensure access to contracep­tive care and reproductive health.²⁸ Similarly, corporate free speech claims have been employed to dismantle restrictions on corporations and wealthy individuals flooding elections with private campaign expenditures that radi­cally shift political influence upward.²⁹ At the same time, First Amendment claims for free speech and free association have ironically been deployed by the Supreme Court to weigh against the abilities of workers to organize and associate.³⁰ This “First Amendment Lochnerism"—where economic regula­tions and labor organizing are both limited in the name of the free speech rights of corporations and individuals—serves a similar purpose: the neuter­ing of public power especially as it is deployed to balance economic power and inequalities.³¹

These lines of attack—encompassing different Constitutional provisions— have a suffocating quality to them. Congressional power to enforce ideals of equality and inclusion has been constrained. Where Congress and courts have responded by grounding civil rights and economic inclusion measures under different provisions—such as moving from Fourteenth Amendment to Commerce Clause justifications for antidiscrimination and social welfare laws like the Civil Rights Act and the Affordable Care Act—those moves have also subsequently been narrowed by further court rulings.³² Even where there are well-established regimes for inclusion and ensuring the balance of demo­cratic power, like the Voting Rights Act, recent holdings have undercut those as well. The combined result is a constricting of public power—specifically those uses of public power that are designed to combat economic, social, or political domination.

Weaponizing administration

The first two themes of privatized government and constricted public power both operate in the same fashion: reducing democratic public political power and shifting more control to (unchecked) private actors. But there is a third pattern to neoliberal statecraft that involves not the dismantling of state power but rather its weaponization in the service of more exclusionary ends.

Take, for example, the pattern, especially since the 1980s, of increasingly punitive and aggressive requirements for enrolling in safety net programs. Applicants are subjected to invasive inspections, mountains of paperwork, and often demeaning and arbitrary interviews before accessing social pro­grams like food stamps, unemployment protections, or welfare. Scholars of the safety net have long noted how these policies, which accelerated dur­ing the Reagan, Bush, and Clinton years, have been designed to limit access to these benefits,³³ and further, how the welfare bureaucracy has often been weaponized to dehumanize individuals seeking to gain access to benefits— and how these barriers to entry are themselves often a product of a combina­tion of racialized and anti-government sentiment.

This weaponization of administrative regimes is also present even in the context of those emancipatory protections nominally protected by the Con­stitution itself. Formally recognized Constitutional rights depend on a vast infrastructure of implementation in order to be realized. As Cary Franklin has argued in context of reproductive rights, attacks on the “infrastructure of provision”—the geographical dispersion of clinics, the kinds of hoops that doctors and clinics have to jump through to gain state licenses and approvals—can functionally reduce a constitutionally recognized right in dramatic ways, even absent a frontal attack on the right itself.³⁴ These types of attacks on the (public and private) bureaucracy of administration of re­productive rights led to corrective attempts like the expanded “undue bur­den” standard codified in Whole Women's Health v. Hellerstedt. A similar fight is now underway in regard to voter suppression. Voting rights advocates have long raised concerns about how the very administration of electoral infrastructure—processes for voter registration, voter ID, and the very place­ment and quality of voting machines—can have dramatic impact on who actually votes. These administrative apparatuses have been increasingly wea- ponized to deliberately undermine the access to the ballot, particularly for communities of color, particularly after the gutting of the VRA preclearance regime in Shelby County v. Holder. Stacey Abrams's lawsuit, Fair Fight Action v. Crittenden, identifies a wide range of such abuses arising from the 2018 Geor­gia gubernatorial race, which she narrowly lost to the then secretary of state, Brian Kemp. Like Whole Women's Health, this suit paints a broad picture of the administrative apparatus needed to make good on the constitutional right to vote—and the ways in which that apparatus can be weaponized to systemati­cally and strategically undermine that right for particular communities.

There is another context where administrative institutions are essential to equal citizenship—and where they can be deployed systematically to in­stead create unequal forms of citizenship. This scenario involves the unshack­ling of administrative authority into unchecked, arbitrary state power that strips target communities of the protections and securities of citizenship. Consider, for example, contemporary concerns over the weaponization of immigration enforcement in recent years, from the inhumane family separa­tion crisis at the border to the increased use of Immigration and Customs Enforcement (ICE) raids on immigrant communities, often falsely targeting legal immigrants in communities of color. These tactics represent adminis­trative authority stripped of the checks and balances that nominally arise from administrative law—and deployed systematically to reassert a racial- ized conception of citizenship and membership, of who belongs and who doesn't.

What these fights highlight is the dynamic interaction between formal Constitutional rights and administrative infrastructures of provision. The experience of membership and inclusion depends greatly on how governance regimes, administrative institutions, and enforcement systems operate. But administrative agencies, once created, do not automatically or necessarily operate in egalitarian ways. The control and management of those infra­structures are critical to ensuring nominal rights are in fact realized. Absent that degree of control and accountability, these administrative systems are likely to be used to undermine rights for particular communities, resulting in a de facto form of tiered, hierarchical membership. The result is that even where the moral content of citizenship leads to commitments to redress po­litical, economic, and social forms of subordination or domination, the very control and implementation of administrative systems can lead to a lived reality of tiered membership, where some communities fully experience the benefits of citizenship and others do not. This third challenge of weapon- ized administration is crucial to note, because it underscores that the role of administrative authority in realizing citizenship is not just a matter of more government; rather, it is a matter of responsive and accountable government.

Freedom, Democracy, and the Rebuilding of Public Power

As the previous examples underscore, the patterns of neoliberal statecraft have operated to systematically undo institutions built to prevent domi­nation and advance a more emancipatory, inclusive, empowering vision of democratic equality. The key lesson here is that political-institutional de­velopment is central to the realization of democracy and freedom and to overcoming domination. This in turn suggests that the building of new in­stitutions is a critical area of focus for reformers, thinkers, and advocates in this New Gilded Age of twenty-first-century inequities. The aspirations for democratic, equal citizenship require administrative bodies, enforcement regimes, and infrastructures of provision to ensure fair and equal access to basic public goods. Economic freedom and democratic equality thus require a concerted effort to (re)build public institutions designed to enforce equal­ity and advance structural justice.

In the modern context, this means that the project of structural justice requires building and expanding public power in ways that secure the au­thority, capacity, and accountability to address the kinds of structural ineq­uities that animate twenty-first-century capitalism. Administrative institu­tions are central to redressing private and systemic forms of domination. Through administrative institutions (whether federal, state, or local), we have innovated institutional structures to redress forms of concentrated and unchecked private power—from antitrust to labor law to corporate law and more. Even as battles for formal socioeconomic rights have fallen short in Constitutional jurisprudence, arguably those moral claims have driven the creation of a modern administrative apparatus charged with securing broad protections for social and economic citizenship, through administrative re­gimes governing concerns like consumer protection, environmental justice, labor rights, antidiscrimination law, disparate impact, and more. These ad­ministrative systems enforce ideals of equality outside of the courts, through (legislatively authorized) administrative processes.³⁵

Consider the Flint water crisis noted at the outset of this chapter. A vision of structural justice and democracy points toward a number of implications for how to approach that crisis. First, it suggests that governance needs to be wrested back from private actors—for example, investor interests and private companies that come to control privatized utilities—back into the public sector. But second, it also demands a more democratically accountable pub­lic governance regime for the water utility itself, that empowers Black and brown communities and grassroots communities most affected by the opera­tions of the utility. And it requires a utility committed to human flourishing, with requirements for fair pricing, nondiscriminatory access, and the like.³⁶

This linkage between administrative institutions and moral citizenship suggests a theory of social change that centers the need to construct and defend equality-enhancing governance regimes. Advancing justice requires building public institutions that are democratically accountable and re­sponsive, and that have the authorities and capacities to ensure equity and justice, dismantling systems of domination and inequality. These public in­stitutions are a necessary foundation for advancing an expansive vision of social and economic citizenship. As the recent revival of interest in “constitu­tional political economy” and “administrative constitutionalism”³⁷ suggests, the moral appeals to membership, inclusion, equality—and against forms of economic and social domination—require more than formal, textual Consti­tutional change to be realized. And indeed, the central battles for this fight for inclusion may not even involve the courts or the constitutional text so much as it requires popular movements, public debates over values, and then legislative and regulatory implementation of those values. This view of social change moves the terrain of contest away from formal Constitutional law to the broader domain of small-c constitutional public law infrastructures, en­compassing legislation, regulation, state and local administration, and more. As Marc Stears notes in his chapter in this book, this view of social change requires a balancing of the transformative and aspirational vision for the fu­ture, with a pragmatic and realistic commitment to building specific policy levers and institutional designs. While legislation, regulation, and public policy are often viewed in technical, technocratic terms of optimizing policy efficiency, this approach suggests a much broader moral and political orien­tation toward policy. As Danielle Allen has suggested in her reformulation of the concept of “planning,” the stakes of policy design, on this view, are not well captured in concepts of economic efficiency or cost-benefit analysis, but rather in terms of the moral implications for citizenship—and the very real questions of political power and accountability as they play out in the often- overlooked domain of administration.

As noted earlier, past historical moments of expanding the reach and substantive meaning of membership have been accompanied by significant moments of state- and institution-building. The upheavals of industrializa­tion helped drive the development of the modern safety net and administra­tive state in the late nineteenth century. The civil rights movement not only helped secure major legislation like the Voting Rights Act and Civil Rights Act, but it also led to the formation of new institutions of public power im­bued with the authority and capacity to enforce these new moral commit­ments: a Department of Justice enforcing preclearance requirements and overseeing voting rights, a federal bureaucracy monitoring issues of discrim­ination, and the like.

What, then, must today's reformers look to do in this regard? There are some key institutional design lessons that can be gleaned from the history of progressive, inclusionary, emancipatory statecraft.

First, consider three brief historical touchstones for this question.

Industrialization and the rise of public utility. In the late nineteenth century, the upheavals of industrialization created new forms of economic precarity, exploitation, and immiseration—a kind of systemic domination in the form of the new rules of the unequal industrial economy. This experience fueled new social movements for worker power and for economic freedom from this new form of economic dislocation. But this was also a period of dramatic institutional innovation. Reformers for the first time created new administra­tive bodies and oversight bodies, enforcing requirements for nondiscrimina­tion, fair pricing, and consumer protection. The linchpin of these efforts was the idea of public utility regulation: that essential goods and services could not be left in the hands of unchecked private actors; that these goods and services needed to be publicly provided and subject to public accountability; and that the mechanism for ensuring access and accountability would be administrative entities that combined democratic responsiveness with new forms of expert public administration. These public utility and administra­tive bodies were first pioneered at the municipal and state level, encompass­ing everything from milk to transport to telecommunications, and formed the foundation for the emergence of the federal New Deal regulatory state in the 1930s.³⁸ These efforts also involved the formation of the first social insur­ance programs that would become the foundation for the New Deal safety net and the rise of economic citizenship protections like Social Security and the protections of the New Deal era.³⁹

Corporate power and the role of structural limits. Also in the late nineteenth and early twentieth century, the rise of megacorporations, financiers like J. P. Morgan, and corporate monopolists like the Vanderbilts, the Goulds, and the Rockefellers drove another key administrative and regulatory innovation: progressive taxation and anti-monopoly, financial, and corporate governance regulations. As Rebecca Henderson, Malcolm Salter, and Chris Eaglin note in their chapters, the structure of the corporate form is a key issue for contest­ing domination. The response to these forms of dyadic domination at the hands of private power led to reforms that sought to deploy the powers of the state to prophylactically and structurally limit private power. The concern here was less with stopping specifically blameworthy conduct on the part of these monopolists and corporations; instead, the goal was to preemptively limit the size, power, and reach of these firms, so as to preclude the kinds of economic exploitation and undue political influence that accompanied the rise of such tremendous concentrations of wealth and power.

Systemic discrimination and civil rights enforcement. Another historical ad­ministrative innovation can be found in the attempts to address systemic forms of racialized and gendered bias and discrimination. Rather than re­lying just on individualized enforcement against specific malefactors— although that remains a mainstay of civil rights and tort law—the adminis­trative dimensions of civil rights involved attempts to create more systemic protections against racial and gender inequality. Think, for example, of the Voting Rights Act system of "preclearance" designed to mitigate attempts at voter suppression. Similarly, the Obama administration experimented with new regulatory approaches to reduced economic segregation through its "Af­firmatively Furthering Fair Housing” program, which set out goals of equal­ity to be achieved through regional urban planning procedures that took desegregation as a key objective and stakeholder consultation as a primary requirement.⁴⁰ Or consider how the Environmental Protection Agency (EPA) Office of EnvironmentalJustice designed to address the racially disparate concentration of environmental harms arising from pollution and racially inequitable urban planning.⁴¹

While a systematic accounting of these experiments and their lessons are beyond the scope of this essay, these brief examples do point to some design lessons and principles for today's reformers seeking to institutionalize a po­litical economy of justice.

First, any administrative and institutional regime for protecting against domination and advancing a more equitable and inclusive vision of democ­racy will need to establish and enforce structural limits on concentrated eco­nomic power through bright-line rules and prophylactic limits. Think, for example, about how antitrust law imposes restrictions on the size and con­centration of megafirms, or how following the 2008-2009 financial crisis, policymakers considered but failed to enact policies to “break up” financial conglomerates and severely restrict the types of financial transactions that modern firms could engage in. In place of such structural and prophylac­tic rules, contemporary economic regulation over the last few decades has tended to favor a more “managerial” approach: leaving market concentration and actors in place but using regulation to encourage better firm conduct or to mitigate market failures. By contrast, a structuralist approach to regu­lation would instead consider preemptive restrictions on firm size, powers, and behaviors as a way to preclude problematic conduct and to limit in ad­vance the undue concentration of economic—or, for that matter, political— influence on the part of megafirms. Structural limits represent a much more robust and effective protection against domination in the economic arena. Such a structuralist approach to regulation would in many ways harken back to the aspirations of Progressive era anti-monopoly reforms and the kind of more transformative and egalitarian reform visions arising from the most recent financial crisis.⁴²

Second, an inclusionary administrative institutional regime will have to restore and reinvent mechanisms for enforcing the values of equality and inclusion—particularly in context of systemic economic, racial, and gender forms of exclusion and exploitation. Just as the Civil Rights Act and Voting Rights Act created new enforcement tools for the federal government, to­day's reformers will have to devise similarly novel and powerful enforcement systems. In particular, such systems will require sufficient and expanded authority to monitor and regulate abuses. Consider, for example, how the creation of the Consumer Financial Protection Bureau generated a more centralized and empowered enforcement apparatus, whereas before its cre­ation, many issues of consumer exploitation where left unchecked, as regula­tory authorities for different types of products and behaviors were scattered across several different competing and uncoordinated agencies. The environ- mentaljustice movement's effort to create a centralized Office of Environ­mental Justice in the EPA represents another (albeit more modest) example of this principle of consolidating authorities. Similarly, authority will have to be expanded through statutory measures that give regulators the powers to redress systemic disparities without having to show specific intent. The Civil Rights Act's disparate impact provisions offer one example of broad man­dates. Finally, these institutions will need novel ways to monitor for abuses and enforce remedies. Toward the latter days of the Obama administration, regulators began to experiment with more high-yield enforcement regimes that targeted the root causes of systemic inequities—for example, using la­bor law to impose fines on parent companies rather than subsidiaries or us­ing regulators to prod metropolitan regions to coordinate on plans to pro­mote economic desegregation.⁴³

Third, these new administrative institutions and remedies need to also be reconstituted in more specifically democratic, participatory modes. As Charles Sabel and Dani Rodrik and Leah Downey argue in their chapters, re­sponsive and accountable and recursive modes of organization are essential to tackling complex problems of justice; the administrative state should be constructed in this spirit. Recently, grassroots movements for economic and racial justice have experimented with policy shifts that directly empower stakeholders in administrative governance—for example, appointing work­ers to wage boards setting state-level labor policies, or including tenants and residents on community oversight boards charged with monitoring the out­comes of local economic development projects. These experiments build on a rich and global tradition of participatory governance that can be adapted for a more democratically responsive and accountable administrative regime. Indeed, a democratic political economy ought to institutionalize greater power and voice for the most directly impacted communities to share in the designing and implementing of public policy—in contrast to either market- oriented or technocratic modes of governing.⁴⁴ This also means bringing greater inclusive governance to the economic arena directly, as more and more firms and industries can consider models of codetermination, worker and stakeholder participation on corporate boards, and worker-led corporate governance.

Conclusion

We are living in a moment of radical rupture and transformation, where eco­nomic, social, political, and ecological crises are opening our societies up to terrifying dangers. But it is also a moment of possibly transformative change advancing ideals of democracy, inclusion, and freedom.

The inequities of our twenty-first-century political economy are at their core problems of domination, of the concentration of unaccountable power, and the systemic reinscription of relationships of subordination and unfree­dom. The response to this moral challenge requires not just new policies for economic inclusion but a more thorough remaking of our economic and so­cial order to dismantle systemic economic, racial, and gender inequities. Fur­thermore, achieving this end requires the construction of effective and pow­erful forms of public power, which must itself be democratically responsive and accountable. Neoliberalism, however, poses a further challenge to this aspiration, as a worldview, a political agenda, and a mode of statecraft that has focused particularly on erasing domination from view and dismantling those institutions built in prior generations to contest domination. A central challenge, then, for a more inclusive and emancipatory political economy is to rebuild (or build anew) institutions of governance capable of counteract­ing and undoing systems of domination.

This is partly a matter of policy and institutional design. We need a new generation of administrative bodies, civil rights enforcement regimes, and regulatory restraints on private corporate power and on financialized and monopolistic interests. It is also a matter of mobilization, organiza­tion, and advocacy: today's social movements are demanding transformative change to address questions of inequality, worker justice, racial justice, gen­der justice, environmental justice, and much more. Like the transformative movements of the Reconstruction era, the Progressive era, or the Civil Rights era, we are in a movement moment where the boundaries of the possible are being renegotiated.

But this challenge of building new institutional mechanisms for advanc­ing an inclusive political economy also represents an ideational and concep­tual challenge. This vision of inclusionary administration and state power represents a direct challenge to decades of neoliberal presumptions. It means reconceptualizing freedom not as a narrow property of individuals and “free markets” but rather as a result of deep commitments to equity, human flour­ishing, and dignity—and a rebalancing of economic and political power. It means reconceptualizing equality not as the surface equality to transact on the market but the deep equity to stand in relations of equal moral worth and standing in the polity. And it means reconceptualizing politics not just as the domain of power or the realm of capture and corruption, but rather as a democratic space of collective participation and shared self-governance.

These shifts represent a challenge to conservative and neoliberal politics. But it also represents a challenge to some long-held presumptions within liberal thought. Focusing on power and domination is a more radical orien­tation than liberal thought emphasizing values of consensus, of good gov­ernance, of equality, of opportunity narrowly construed.⁴⁵ This emphasis on both robust and participatory democratic governance means stepping out­side of familiar “good governance” models of reform—which tend to em­phasize transparency, rationality, and civility as ideals—to instead thinking about institutional design as a project of power: first, of empowering those most affected and most marginalized, and second of exercising state power to dismantle systemic forms of domination and inequity.⁴⁶ This also means rethinking the familiar legal liberal fascination with courts, judges, and tech­nocratic expertise and imagining more transformative, bottom-up, demo­cratic forms of governance and social change. These shifts will not always be easy or even universally acclaimed. But if we are to overcome the inequi­ties of the current moment, we must imagine new forms of administration, governance, and public power that can rise to the task. Anything less will be not enough to fulfill the aspirations for an inclusive, equitable, multiracial twenty-first-century democracy.

Notes

1. See Lee DeVito, "The Number of Flint's Students with Special Needs Has Increased by 56% since the Water Crisis, according to Reports,” Detroit Metro Times, August 28, 2019, https://www.metrotimes.com/news-hits/archives/ 2019/08/28/the-number-of-flints-special-needs-students-has-increased-by -56-since-the-water-crisis-according-to-report.

2. See Sarah Frostenson, "America Has a Water Crisis No One Is Talking About,” Vox, May 9, 2017, https://www.vox.com/science-and-health/2017/ 5/9/15183330/america-water-crisis-affordability-millions; Jacey Fortin, "In Flint, Overdue Bills for Unsafe Water Could Lead to Foreclosures,” New York Times, May 4, 2017, https://www.nytimes.com/2017/05/04/us/flint-water -home-foreclosure.html?_r=0.

3. See K. Sabeel Rahman, "Infrastructural Exclusion and the Fight for the City: Power, Democracy, and the Case of America's Water Crisis,” Harvard Civil Rights-Civil Liberties Law Review 53 (2018): 801-29.

4. See, for example, Iris Marion Young, ResponsibilityforJustice (Oxford Univer­sity Press, 2011); K. Sabeel Rahman, "Constructing and Contesting Struc­tural Inequality,” Critical Analysis of Law 5, no. 1 (2018): 99-126; Amna Akbar, “Toward a Radical Imagination of Law,” NYULaw Review 93, no. 3 (June 2018): 405-479.

5. See Young, ResponsibilityforJustice, 52-59.

6. See, for example, Elizabeth Anderson, Private Government (Princeton Univer­sity Press, 2017).

7. See, for example, Martin Gilens, Affluence and Influence (Princeton University Press, 2014); Larry Bartels, Unequal Democracy (Princeton University Press, 2017).

8. See, for example, Friedrich Hayek, “'Social' or Distributive Justice,” in The Essence of Hayek, ed. Chiaki Nishiyama and Kurt R. Leube (Hoover Institution Press, 1984).

9. This skepticism can be seen in the political science expounders of neolib­eral thought—for example, the rise of “capture theory” and public choice economics advanced by thinkers like George Stigler, James Buchanan, and Gordon Tullock. See S. M. Amadae, Rationalizing Capitalist Democracy (Univer­sity of Chicago Press, 2003). For an account of how this skepticism of govern­ment animated many political narratives against social reform, see Albert Hirschman's classic book, Rhetoric of Reaction (Harvard University Press, 1991).

10. See Kim Phillips-Fein, Invisible Hands (WW Norton, 2010); Angus Burgin, The Great Persuasion (Harvard University Press, 2015); Jacob Hacker and Paul Pierson, American Amnesia (Simon & Schuster, 2017); Lawrence Glickman, Free Enterprise (Yale University Press, 2019).

11. See Nancy Maclean, Democracy in Chains (Penguin Random House, 2017).

12. See Felicia Wong, “Building Post-Neoliberal Institutions,” Democracy: A Jour­nal of Ideas (Summer 2019).

13. See Jacob Hacker and Paul Pierson, Winner-Take-All Politics (Simon & Schus­ter, 2010); Katharina Pistor, The Code of Capital (Princeton University Press, 2019).

14. See, for example, Richard Rothstein, Color of Law (Liveright Publishing, 2017); Mehrsa Baradaran, Other People's Money (Belknap Press of Harvard University Press, 2017).

15. See Quinn Slobodian, The Globalists (Harvard University Press, 2018).

16. See, for example, Gilens, Affluence and Influence; Nicholas Carnes, White-Collar Government (University of Chicago Press, 2013); Hacker and Pierson, Winner­Take-All Politics; Bartels, Unequal Democracy; Kay Lehman Schlozman, Sidney Verba, and Henry Brady, Unheavenly Chorus (Princeton University Press, 2012).

17. See, for example, Consumer Financial Protection Bureau, “New Protections against Mandatory Arbitrations,” 2017, https://www.consumerfinance.gov/ arbitration-rule/.

18. See, for example, Eric Goldberg, “Correcting the Record on the CFPB's Arbitration Rule,” Consumer Financial Protection Bureau, October 16, 2017, https://www.consumerfinance.gov/about-us/blog/correcting-record-cfpbs -arbitration-rule/; see also Sylvan Lane, “Trump Repeals Consumer Arbitra­tion Rule, Wins Banker Praise,” The Hill, November 1, 2017, https://thehill.com/policy/finance/358297-trump-repeals-consumer-bureau-arbitration -rule-joined-by-heads-of-banking.

19. See, for example, Daniel Rodgers, Atlantic Crossings (Harvard University Press, 2000); K. Sabeel Rahman, Democracy against Domination (Oxford Uni­versity Press, 2017), chap. 3.

20. For a documentation of today's corporate concentration crisis and the role of modern finance in reshaping market dynamics, see, for example, Rana Foroohar, Makers and Takers (Crown Business, 2016); Matt Stoller, Goliath (Simon & Schuster, 2019); Tim Wu, The Curse of Bigness (Columbia Global Reports, 2018).

21. For a broader version of this critique of privatization, see Jon Michaels, Con­stitutional Coup (Harvard University Press, 2017).

22. Lochner v. New York (1905).

23. See, for example, US v. Cruikshank (1876); Civil Rights Cases (1883). See also Jim Pope, “Snubbed Landmark: Why United States v. Cruikshank Belongs at the Heart of the American Constitutional Canon,” Harvard Civil Rights-Civil Liber­ties Review 49 (2014).

24. See Washington v. Davis (1976).

25. Parents Involved in Community Schools v. Seattle School District No. 1 (2007).

26. See, for example, Civil Rights Cases (1883); Jackson v. Metropolitan Edison Co. (1974); Deshaney v. Winnebago County (1989).

27. Shelby County v. Holder (2013).

28. Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018); Burwell v. Hobby Lobby (2014).

29. Citizens' United v. FEC (2010).

30. See, for example, Janus v. AFSCME (2018).

31. See Jed Purdy, “Beyond the Bosses' Constitution,” Columbia Law Review 118, no. 7 (November 2018): 2161-86.

32. See, for example, US v. Morrison (2000) and NFIB v. Sibelius (2012).

33. See, for example, Kathryn J. Edin and H. Luke Shaefer, $2.00 a Day: Living on Almost Nothing in America (Mariner Books, 2016); Michael Katz, The Undeserv­ing Poor (Oxford University Press, 2013).

34. Cary Franklin, “Infrastructures of Provision,” unpublished manuscript, 2017, draft on file.

35. For a longer version of this argument, see K. Sabeel Rahman, “Constructing Citizenship,” Columbia Law Review 118, no. 8 (December 2018): 2447-503.

36. See, for example, K. Sabeel Rahman, “Infrastructural Exclusion and the Fight for the City,” Harvard Civil Rights-Civil Liberties Law Review 53 (2018): 533-62.

37. See, for example, Gillian Metzger, “Administrative Constitutionalism,” Texas Law Review 91 (2013).

38. See William Novak, “Law and the Social Control of American Capitalism,” Emory LawJournal 60, no. 2 (2010).

39. See, for example, David Moss, When All Else Fails (Harvard University Press, 2002).

40. See Olatunde Johnson, “Beyond the Private Attorney General: Equality Di­rectives in American Law,” NYULaw Review 87 (2012).

41. For a longer version of this argument, see K. Sabeel Rahman, “Reconstruct­ing the Administrative State,” Harvard Law Review 131 (2018).

42. For a discussion of structuralist regulation in context of finance, see, for example, Rahman, Democracy against Domination, chap. 7. In context of information platforms, see K. Sabeel Rahman, “Regulating Informational Infrastructure,” Georgetown Law and Technology Journal 2, no. 2 (2018).

43. See, for example, David Weil, “Creating a Strategic Enforcement Approach to Address Wage Theft,” Journal of Industrial Relations 60, no. 3 (2018): 437­60; Johnson, “Beyond the Private Attorney General: Equality Directives in American Law.”

44. See, for example, K. Sabeel Rahman and Hollie Russon Gilman, Civic Power (Cambridge University Press, 2019), 169-203.

45. See, for example, Elizabeth Anderson, “What Is the Point of Equality?” Ethics 109, no. 2 (January 1999); Rahman, Democracy against Domination, 105-11.

46. See Rahman and Russon Gilman, Civic Power, 18-27.

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