Aziz Z. Huq (University of Chicago – Law School) has posted Patrimonial Constitutionalism on SSRN. Here is the abstract:
The means and the ends of federal power are experiencing a sea-charge. Pardons are freely granted—but only to political allies or political foes who might be coaxed into switching sides. Baseless federal criminal investigations are opened against other political foes. Probes into allies’ corruption are abandoned. Independent federal agencies responsible for defending the public sphere use their regulatory authority to openly advance politically allied voices, while stifling criticism of those in power. Federal money is explicitly wielded as cudgel and bribe to induce partisan loyalty. These and similar ways of flexing federal power add up to more than the sum of their parts. They illustrate not just a new way of governing, but a new theory of what legitimates state power.
This Article theorizes these developments as a novel form of “patrimonial constitutionalism.” Drawing upon a tradition in the social sciences starting with Max Weber, it defines “patrimonial constitutionalism” as the use of a federal office as if it were a private good to directly advance partisan goals. Understood in this way, the term “patrimonial constitutionalism” picks out a specific way of mixing the means and ends of official power. The Article illustrates and unpacks this concept to demonstrate its analytic value for understanding the rapidly changing terms of American public law. To this end, it identifies five different vectors by which federal power is now deployed in patrimonial form; locates contemporary patrimonialism in constitutional theory and history; and fleshes out its legal predicates. While patrimonialism’s vectors have some historical precedents, they also leverage the Roberts Court’s deregulatory approach to campaign finance, public corruption, and bureaucratic legality. The Justices laid this groundwork for a patrimonial revival, paradoxically, while claiming to advance its main competitor—democratic rule. The Article concludes by cataloging instruments available at both federal and state levels for rolling back the patrimonial tide in the federal government.
Highly Recommended!
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