Empire-Building Government in Constitutional Law
Levinson, Daryl J., Harvard Law Review
TABLE OF CONTENTS I. INTRODUCTION II. EMPIRE-BUILDING A. Corporate Managers and Dictators B. Democratic Representatives C. Bureaucrats D. Jurisdiction, Growth, and Empire III. FEDERALISM A. Political Safeguards B. Jurisdictional Competition IV. SEPARATION OF POWERS A. Congress and the President B. Courts V. REMEDIES A. Monetary Damages and Sovereign Immunity B. Just Compensation for Takings VI. CONCLUSION: AGENCY AND FACTION
Fear and loathing of big and growing government has been a persistent theme in American political and constitutional discourse since the Founding. A correspondingly enduring and pervasive assumption in constitutional law and theory is that much government behavior is driven by empire-building, the self-aggrandizing pursuit of power or wealth. Thus, discussions of federalism often start from the premise that an imperialistic national government will seek to colonize ever greater swaths of policy space, while equally imperialistic state governments will attempt to defend and expand their own turf. Similarly, the law and theory of constitutional separation of powers envision self-aggrandizing legislative and executive branches pitted against each other in aggressive competition for power. Switching from power to wealth, constitutional theorists take for granted that one of the primary virtues (or vices) of federalism is that it fosters avaricious competition among state and local governments for tax base. Discussions of constitutional remedies likewise assume that governments will be discouraged from taking property or violating constitutional or statutory rights by the requirement that they pay monetary compensation to the victims--because the loss of dollars will "hurt" wealth-maximizing governments.
This Article questions whether, in these and other contexts, empire-building government is actually a useful tool of constitutional analysis. The Article suggests that predictions of government behavior should be based not on the supposed self-aggrandizing motives of a personified Leviathan, but instead on some combination of the constituent-driven political pressures brought to bear on government officials and the set of independent interests these officials might pursue in the space afforded them by democratic agency slack. As it turns out, neither the policy interests of constituents nor the self-serving goals of officials are likely to correlate in any systematic way with the power or wealth of government institutions. The kind of rampant empire-building that courts and constitutional theorists imagine would seem to require government officials who care more about aggrandizing the institutions in which they work than about pursuing either the interests of the citizens they represent or their own self-interest. Democratic governments are unlikely to generate such officials.
Fear and loathing of big and growing government has been a persistent theme in American political and constitutional discourse since the Founding. In recent decades, even as the enormous growth of government in the United States (as in other Western industrialized countries) over the course of the twentieth century appears to have leveled off, (1) aversion to big government has become so intense and widespread that it is now being described as the fundamental principle of our "constitutional order." (2) While attitudes toward the scope and role of government obviously have varied over the course of U.S. history and over the range of the political spectrum, at the level of abstract principle Americans have kept faith with our forebears: big government is bad.
A correspondingly enduring and pervasive assumption in constitutional law and theory is that much government behavior is driven by self-aggrandizing motives toward empire-building. In some settings, government empire-building is imperialistic, with institutions and offices seeking to maximize power by occupying ever larger swaths of policymaking space. …