K. Sabeel Rahman (Cornell University – Law School) has posted Towards A Reconstructive Politics (88 Law and Contemporary Problems 118 (2025)) on SSRN. Here is the abstract:
In its first year, the second Trump Administration has seized federal power to advance an explicitly reactionary agenda, attacking the institutional and normative foundations of civil rights, economic inclusion, and democracy itself. These transformations are especially destabilizing coming on the heels of mass social movements calling for egalitarian transformations of an unequal economy and the problems of racial injustice just a few years prior.
First, this paper diagnoses mechanisms of reactionary power and how particular institutional configurations in our political economy operate to neutralize potential moments of progressive transformation (Part II). These infrastructures in turn serve as the building blocks for a more openly authoritarian political economic order, of the sort that may be in the process of emerging today. These infrastructures of reaction and mechanisms of authoritarian rule are modern revivals of long-standing practices that shaped the establishment and defense of home-grown pockets of authoritarian rule and reactionary power throughout American history, whether in context of racial subordination in the context of slavery, empire, and post-Civil War Jim Crow and racial capitalism; gender domination in the private realm; or economic domination in the workplace and marketplace.
Second, in response to these reactionary power structures, this paper argues for an ethos of reconstructive politics—an approach that both aspires to a more inclusive democracy and political economy, and which takes seriously the task of degrading and dismantling reactionary power and building durable egalitarian institutions and power relations (Part III.A). A reconstructive politics puts a higher premium in institutional proposals on the potential for deliberate entrenchment and durability of citizenship-expanding policies. This emphasis on reconstruction as a response to reactionary power opens up a broader implication about norms and discourses of public law and reformist politics (Part III.B). The upshot of this shift is that a politics premised on either simple material delivery of results to constituencies, or on restoration of supposedly cross-partisan norms of the rule of law and institutional respect both will fail. For public law to reground a democratic politics capable of overcoming the reactionary turn, it will have to jettison these appealing alternatives and commit to a messy, conflictual, but ultimately morally-just vision of reconstruction instead.
Highly recommended.