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Cornell Law Review

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constitutional theory, economic power, political process


Constitutional Law | Law | Law and Politics


Contemporary constitutional theory needs to be rooted in a more realistic description of the American political process. This Article frst argues that leading debates in constitutional theory have failed to engage with the reality of elite economic domination and that without taking into account the role economic elites play in American politics, these theories have serious limitations even on their own terms. Second, it shows that any attempt to design institutions to account for the influence of economic power will face persistent, pervasive, and perverse problems. A central task of constitutional theory going forward must be to overcome or at least mitigate these stumbling blocks. Third, it provides a conceptual framework of possible, albeit imperfect, design options for mitigating elite economic domination. There are a variety of design strategies for grappling with economic power, which cover a wide range in both plausibility and efficacy. Given the persistent problems involved in mitigating the influence of economic power, it is not likely there will be any one single "solution." Constitutional theory will instead need to consider a second- best approach in which multiple suboptimal strategies are adopted, in hopes that the system as a whole is relatively desirable.



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