Samuel Bagg voters could have done better than the social demo- cieties and.within this context.rules or structures pro- cratic parties of the early twentieth century-just as hibiting centralized redistribution between groups will contemporary African Americans could do much bet- predictably facilitate the entrenchment of elite power. ter than the Democrats-but it is idle to pretend that Accordingly.such limits can be considered mechanisms such allegiances have no basis whatsoever in genuine of state capture protection of group interests. Advocates of limited government may object to We may admit,then,that members of disadvantaged this description.Even if elites benefit disproportion- groups often vote in suboptimal ways-just like every- ately from state protection of property,they do not one else.As we have seen,however,it is highly unlikely have arbitrary control over state action.Given a sit- that instituting epistemic conditions on the franchise uation of highly asymmetrical social power,indeed. would reliably and significantly improve average vote it might seem that increasing the state's centralized quality.It is far more likely that they would be used power would only give elites more powerful tools with to entrench the power of incumbents-potentially so which to dominate others.We should not brush this effectively as to endanger the competitiveness of elec- concern aside,given that discretionary state power has tions.Restricting the political rights of low-knowledge often been used in precisely this way(e.g.,Somin 2015). disadvantaged groups,therefore,would bring risks for Nevertheless,historical experience also provides evi- those groups (and for the polity as a whole)that are dence of opposing tendencies. far out of proportion to any hypothesized benefits.In In the infamous Lochner era between 1897 and 1937 sofar as Brennan's epistocratic proposals are intended for instance,the US Supreme Court repeatedly over- for the real world,we must resoundingly reject them. turned redistributive legislation favored by wide ma- jorities.Interestingly,some justices saw themselves as defending the "general"interest-namely,economic Limited Government and the Necessity of growth-against labor's attempts to capture the state 4号 Robust Discretionary Power in service of its"partial"interests(Rahman 2016,64) In hindsight,however,it is far more plausible to under- We turn,finally,to the idea of limited government- stand these conservative justices as agents of state cap- that is,constraining and decentralizing political power ture,defending the partial interests of industrial capi- through mechanisms like federalism,local governance. talists at the expense of nearly everyone else.For one, and judicial review,while encouraging greater reliance growth inevitably creates winners and losers,and can- on competitive markets and interjurisdictional foot- not be understood as a"neutral"policy that is always voting.As Ilya Somin argues,this could "reduce the in the "general"interest.Meanwhile,labor's eventual problem of public ignorance by reducing the number victories did not demonstrably slow growth,and in of issues to be decided by government to a level that fact seemed to facilitate widely shared prosperity.Of voters would find more manageable"(2013,141;see course,"state capture"is no more self-interpreting than also Caplan 2007,192-7).Indeed,something like this any other normatively laden concept,and as I have ac- solution may appear as the logical extension of my ar- knowledged,there will always be disagreement about gument:if epistocracy is dangerous because it enables how to apply it in practice.Nevertheless,it is broadly state actors to accumulate excessive centralized power. accepted that Lochner-era jurisprudence protected the 1.101g perhaps the solution is to place tighter constraints on interests of a small economic elite at the expense of a those actors. vast majority (Sunstein 1987). As I demonstrate,however,the problems of en- Nor is it the only example of US elites em- trenchment and capture are not so easily resolved. ploying techniques of "limited government"-that is, While certain limits on discretionary state power are constraining and decentralizing political power-to en- advisable,others would actually facilitate the entrench- trench their dominance.Southerners have long ap- ment of various elites,and ultimately the capture of pealed to federalism in defending the institutions of the state itself.Thus,I argue that resisting state cap- white supremacy,for instance,while metropolitan elites ture requires a delicate balance between "defensive" routinely use the principle of local governance to strategies that limit the state's discretionary power,and thwart the efforts of disadvantaged groups to claim a "offensive"strategies that use this discretionary power greater share of regional resources (Anderson 2010 to target the potential perpetrators of capture-that is, Hayward 2013).Here too,of course,opponents of re- the possessors of concentrated private power. distribution by centralized federal or municipal author- Consider first that even a"minimal"state-one con- ities may claim that it represents a pernicious form stitutionally limited,perhaps,to defining and enforc- of state capture-and here too,their claims are thor- ing property rights-would still play a crucial role in oughly implausible.Though the federal government the distribution of power,and would hardly be neutral coercively imposed the Civil Rights Act upon states,for between differently situated actors.Such a state would instance,few today would dispute that it was the state- enable privileged elites to perpetuate their social and level Jim Crow laws overturned by the Act which more economic advantages quite effectively,while coercively clearly embodied the use of coercive centralized power preventing any redistributive efforts-legal or extra- by a privileged class to perpetuate its (perceived)inter- legal-undertaken by coalitions of the disempowered. ests at the expense of others. More generally,state protection of private property is The point of these examples is not to show that lim- fundamental to the social order in nearly all modern so- its on discretionary power are always mechanisms of 900Samuel Bagg voters could have done better than the social demo￾cratic parties of the early twentieth century—just as contemporary African Americans could do much bet￾ter than the Democrats—but it is idle to pretend that such allegiances have no basis whatsoever in genuine protection of group interests. We may admit, then, that members of disadvantaged groups often vote in suboptimal ways—just like every￾one else. As we have seen, however, it is highly unlikely that instituting epistemic conditions on the franchise would reliably and significantly improve average vote quality. It is far more likely that they would be used to entrench the power of incumbents—potentially so effectively as to endanger the competitiveness of elec￾tions. Restricting the political rights of low-knowledge disadvantaged groups, therefore, would bring risks for those groups (and for the polity as a whole) that are far out of proportion to any hypothesized benefits. In￾sofar as Brennan’s epistocratic proposals are intended for the real world, we must resoundingly reject them. Limited Government and the Necessity of Robust Discretionary Power We turn, finally, to the idea of limited government— that is, constraining and decentralizing political power through mechanisms like federalism, local governance, and judicial review, while encouraging greater reliance on competitive markets and interjurisdictional foot￾voting. As Ilya Somin argues, this could “reduce the problem of public ignorance by reducing the number of issues to be decided by government to a level that voters would find more manageable” (2013, 141; see also Caplan 2007, 192–7). Indeed, something like this solution may appear as the logical extension of my ar￾gument: if epistocracy is dangerous because it enables state actors to accumulate excessive centralized power, perhaps the solution is to place tighter constraints on those actors. As I demonstrate, however, the problems of en￾trenchment and capture are not so easily resolved. While certain limits on discretionary state power are advisable, others would actually facilitate the entrench￾ment of various elites, and ultimately the capture of the state itself. Thus, I argue that resisting state cap￾ture requires a delicate balance between “defensive” strategies that limit the state’s discretionary power, and “offensive” strategies that use this discretionary power to target the potential perpetrators of capture—that is, the possessors of concentrated private power. Consider first that even a “minimal” state—one con￾stitutionally limited, perhaps, to defining and enforc￾ing property rights—would still play a crucial role in the distribution of power, and would hardly be neutral between differently situated actors. Such a state would enable privileged elites to perpetuate their social and economic advantages quite effectively, while coercively preventing any redistributive efforts—legal or extra￾legal—undertaken by coalitions of the disempowered. More generally, state protection of private property is fundamental to the social order in nearly all modern so￾cieties and, within this context, rules or structures pro￾hibiting centralized redistribution between groups will predictably facilitate the entrenchment of elite power. Accordingly, such limits can be considered mechanisms of state capture. Advocates of limited government may object to this description. Even if elites benefit disproportion￾ately from state protection of property, they do not have arbitrary control over state action. Given a sit￾uation of highly asymmetrical social power, indeed, it might seem that increasing the state’s centralized power would only give elites more powerful tools with which to dominate others. We should not brush this concern aside, given that discretionary state power has often been used in precisely this way (e.g., Somin 2015). Nevertheless, historical experience also provides evi￾dence of opposing tendencies. In the infamous Lochner era between 1897 and 1937, for instance, the US Supreme Court repeatedly over￾turned redistributive legislation favored by wide ma￾jorities. Interestingly, some justices saw themselves as defending the “general” interest—namely, economic growth—against labor’s attempts to capture the state in service of its “partial” interests (Rahman 2016, 64). In hindsight, however, it is far more plausible to under￾stand these conservative justices as agents of state cap￾ture, defending the partial interests of industrial capi￾talists at the expense of nearly everyone else. For one, growth inevitably creates winners and losers, and can￾not be understood as a “neutral” policy that is always in the “general” interest. Meanwhile, labor’s eventual victories did not demonstrably slow growth, and in fact seemed to facilitate widely shared prosperity. Of course, “state capture”is no more self-interpreting than any other normatively laden concept, and as I have ac￾knowledged, there will always be disagreement about how to apply it in practice. Nevertheless, it is broadly accepted that Lochner-era jurisprudence protected the interests of a small economic elite at the expense of a vast majority (Sunstein 1987). Nor is it the only example of US elites em￾ploying techniques of “limited government”—that is, constraining and decentralizing political power—to en￾trench their dominance. Southerners have long ap￾pealed to federalism in defending the institutions of white supremacy, for instance,while metropolitan elites routinely use the principle of local governance to thwart the efforts of disadvantaged groups to claim a greater share of regional resources (Anderson 2010; Hayward 2013). Here too, of course, opponents of re￾distribution by centralized federal or municipal author￾ities may claim that it represents a pernicious form of state capture—and here too, their claims are thor￾oughly implausible. Though the federal government coercively imposed the Civil Rights Act upon states, for instance, few today would dispute that it was the state￾level Jim Crow laws overturned by the Act which more clearly embodied the use of coercive centralized power by a privileged class to perpetuate its (perceived) inter￾ests at the expense of others. The point of these examples is not to show that lim￾its on discretionary power are always mechanisms of 900 Downloaded from https://www.cambridge.org/core. Shanghai JiaoTong University, on 26 Oct 2018 at 03:53:04, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0003055418000527