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In his important and provocative Foreword, Professor Daryl Levinson criticizes American constitutional law for failing to attend sufficiently to questions of power, which he defines as “the ability to effect substantive policy outcomes by influencing what the government will or will not do.” As Levinson details, structural constitutional law has focused on how power is distributed among governmental institutions. It has not consistently or adequately considered how power is – or should be – distributed among social groups. Ultimately, Levinson suggests that the narrow focus of separation of powers law and theory on “equalizing the power of government institutions” lacks normative force. Equalizing power among interests and groups in society is a more worthwhile project than checking, balancing, and equalizing power among governmental institutions. In the latter, he concludes, “it is hard to see any spark.”


Law | Law and Society | Public Law and Legal Theory