The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Boston University Law Review Online has posted a symposium on Ganesh Sitaraman's important new book, The Crisis of the Middle-Class Constitution. The symposium includes contributions by Richard Epstein (Chicago/NYU), Daniel Markovits (Yale), K. Sabeel Rahman (Brooklyn), David B. Lyons (BU), and myself. It also includes Sitaraman's response to his critics. Kudos to the editors for finding an ideologically diverse group of commentators.
Here is an excerpt from the start of my contribution, "Why Growing Government is a Greater Political Menace than Growing Inequality," which is now also available on SSRN (in a version with footnotes and citation information):
In his important new book, The Crisis of the Middle-Class Constitution, Ganesh Sitaraman argues that growing economic inequality over the last several decades and the resulting decline of the middle class is "the number one threat to American constitutional government." He also contends that the American Founding Fathers sought to establish a "middle-class constitution" in which the avoidance of extremes of wealth and poverty would ensure the stability of democratic government, and that the struggle to preserve and extend the middle-class constitution is a major theme of American constitutional history.
These are bold and provocative claims, but large elements of them fail to withstand scrutiny. Economic inequality is not as serious a threat to our political system as the growing size and complexity of government. These forces make it increasingly difficult for ordinary people to exercise effective control over government—or even to understand what it is doing. Ironically, the policies Sitaraman and others advocate as solutions to inequality would make this problem worse.
In addition, Sitaraman's focus on the Founders' fear of excessive inequality of wealth leads him to ignore their much stronger concern for protecting liberty and property rights, and limiting and decentralizing government power. These latter ideas can help us address the more dangerous elements of our present situation.
While Sitaraman overstates the dangers of inequality, he is right to highlight the perils of declining opportunity for the poor and lower-middle class, and the ways in which the modern state offers all too many opportunities for the wealthy and powerful to enrich themselves at the expense of the public interest. These are difficult challenges to overcome. But there are ways to mitigate these problems, while simultaneously reducing the size and complexity of government that have undermined democratic accountability and empowered unscrupulous elites.
In his response to the critics, Sitaraman recognizes that the combination of big, complex government and widespread voter ignorance is a serious problem, but argues that complexity is not necessarily "tied to the size of government [and] Governments can grow in size without complexity being of the type that undermines civic engagement." I agree that complexity and size are analytically distinct. However, as noted in my contribution to the symposium, the problem here is not just size, as such, but the enormous range of functions modern government has taken on. For reasons I elaborated more fully here and here, it is not possible for the state to regulate and control so much without becoming highly complex in ways that make it difficult for voters to understand and evaluate public policy - or even just keep track of what the government is doing.