Joy Milligan, University of Virginia School of Law, has posted Beyond Equity: The Counterfactual Administrative State, which is forthcoming in the Georgetown Journal of Law and Public Policy:
What kind of administrative state would we have, if the United States had been a true democracy earlier? In this short essay, I begin to address that question. I argue that in light of the foregone democratic possibilities, the goal of equity asks too little of the administrative state. A broader vision directs us beyond equity, toward institutional reimagination and transformation. I suggest that the administrative state likely would have been more powerful, more centralized, and more generous in its redistributive aims, had the United States been an actual democracy earlier. People of color were both politically excluded and among those most likely to benefit from such administrative structures and programs. I illustrate this point with the case of federal aid to education, a recurring legislative campaign for more egalitarian school investments that failed from Reconstruction till the 1960s. In the case of education, rather than simply aiming to make existing institutions more equitable, we should ask what a century, or even several more decades, of egalitarian school investment might have meant for poor Black and white children, for the administrative state, and for our politics. What can we gain from asking such questions? Among other benefits, considering these counterfactuals can deepen our collective sense of democratic loss, and by the same implication, our sense of democratic potential. We have so recently and imperfectly experienced democracy, that we cannot gauge its true potential yet.--Dan Ernst
