State capture poses a distinctive challenge to democracy in the United States. As well-resourced individuals and interest groups exert ever-increasing influence over public policymaking, the American legal system loses its moorings in majority will and democratic faith. The costs of this process are borne by the poor and working classes. Unlike most public-law scholarship concerned with state capture, this Article surfaces potential remedies in the underutilized tools of state constitutional law. Drawing on state constitutional history and political-economic scholarship, it argues that when confronted with legislation suspected of capture, state courts should abandon rational basis scrutiny in favor of more searching forms of anticapture review. Their authority to do so may be located in restraints on legislative power common to every state constitution. State constitution-makers created these restraints in the nineteenth century in order to empower courts to check their captured legislatures. Still very much good law, they can and should be mobilized to contest state capture today.

This Article analyzes some of the central ramifications of Lewis v. Governor of Alabama, a recent case in which the Eleventh Circuit addressed the constitutional limits of state preemption under the Equal Protection Clause. Situating Lewis within a broader wave of state laws that preempt progressive local regulations—ranging from minimum wage ordinances to anti-discrimination protections—the Article argues that preemption can serve as a vehicle for intentional discrimination when deployed to suppress minority political power. Drawing on the Arlington Heights framework, the Article explores how equal protection analysis can illuminate discriminatory motives behind facially neutral preemption statutes. It revisits questions of intent, structure, and history to assess when preemption laws cross the line from legitimate governance to constitutionally suspect interference with local autonomy. In doing so, it highlights the emerging constitutional horizons of state preemption, emphasizing the need for courts to recognize that formal state supremacy may mask substantive inequality.

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.