In the past decades, we have witnessed the emergence and spread of a new and aggressive form of state legislative activism—as represented by the proliferation of so-called stand-your-ground, right-to-work, and voter ID laws. The literature on these laws reveals both that they exacerbate inequalities based on race and class and that they are the product of a secretive but nationally coordinated campaign led by private corporations and individual activists. As the emergence of these laws indicates, elites have become increasingly adept at devising new mechanisms for influencing state and local policymaking within the existing bounds of campaign finance law. But legal scholarship has not considered the possibility that these new strategies might implicate the constitutional limits that states impose on legislative processes—restraints first enacted to insulate state policymaking against subordination to private interests. This Article develops a historical, theoretical, and institutional case for using state constitutions to challenge these laws—and thus the flow of harms they channel toward ordinary people and democratic institutions. To explain the recent wave of conservative lawmaking and to elaborate a constitutional response, this Article offers a general theory of public-private relations at the state level: “state capture,” or the totality of mechanisms by which private individuals and groups mobilize public power to advance private interests at public expense. The Article demonstrates that the popular reformers originally responsible for creating our state constitutional restraints on legislative processes in the 19th century were motivated by the fear that state legislative power had fallen under the influence of capital. Under conditions of state capture, they worried, state legislatures would increasingly threaten private property, intensify inequality, and undermine democratic legitimacy. Drawing on political theory and recent empirical findings, the Article shows how present-day state capture closely tracks these 19th-century dynamics, thus triggering the constitutional provisions that states originally constitutionalized to protect themselves. Further, it develops and defends a repertoire of state constitutional challenges that equality-oriented advocates may use to contest state capture today.

The Lochnerism thesis is among the most influential constitutional theories to emerge in recent years. It argues that the judiciary increasingly protects private business from public regulation by enshrining and expanding liberty of contract rights under the First Amendment. Using 303 Creative LLC v. Elenis as a case study, this Article explores the limits of Lochnerism as a theoretical framework. It argues that, while productively illuminating the judiciary’s attack on the administrative state and democratic processes, the theory may also displace concerns over the concrete harms experienced by vulnerable communities. To bring these harms back into view, this Article suggests a theoretical reorientation: a shift in perspective from concerns over regulation to a more traditional point of focus, the distribution of property rights.

This chapter offers a novel interpretation of one of the most ubiquitous yet overlooked phrases in Marcuse’s thought: “law and order.” By the 1960s, “law and order” had become a key term in American public culture. For conservatives and liberals alike, it served as a call for repressive federal intervention against local crime and civil unrest. Though an important participant in these discussions, Marcuse advanced a novel understanding of the phrase. Through a close investigation of Marcuse’s writings from the 1930s to the 1980s, this chapter shows that he understood law and order as socially necessary repression. The importance of this unique conception is that it transcends the carceral politics with which the phrase is typically associated today. As such, it harbors a provocative, alternative vision of the relationship between contemporary abolitionism and institutional repression. Abolitionism is not about the destruction of law and order as such; rather, it is about realizing a different—an emancipatory—law and order by supplanting carceral institutions with life-affirming ones. With Marcuse, we can recapture law and order from its conservative appropriation and restore it, as bequest, to our contemporary, abolitionist imaginary.

This article offers a novel account of a key concept in Hannah Arendt’s political thought: amor mundi. In political theory’s ethical turn, theorists have increasingly turned to amor mundi as a source of ethical guidance and inspiration for politics. However, in doing so, they have elided Arendt’s distinct understanding of care. This article recovers Arendt’s understanding of amor mundi as care for the world by reconstructing the central concerns of her dissertation, Der Liebesbegriff bei Augustin, and tracing them to the “Crisis” essays of Between Past and Future. It shows that amor mundi emerges in the dissertation as part of a question: if love is our fundamental orientation toward the world, how can we love the world without instrumentalizing it? The two “Crisis” essays provide the following answer: if love is to avoid—and perhaps militate against—the instrumentalization of the world, it must take the form of care. Following this analysis, this article contends that the contribution of amor mundi to the ethical turn is best understood, not as the ethos needed to guide action in the political realm, but as a key preor nonpolitical ethos needed to conserve the world where politics takes place—and thus the very possibility of politics.