Justice by Means of the Administrative State

Glen Staszewski* April, 2024

Justice by Means of Democracy. By Danielle Allen. Chicago, IL.: University of Chicago Press. 2023. Pp. xii, 607. $27.50.

Introduction

John Rawls sought to achieve justice by putting us behind a veil of ignorance and advocating a difference principle that requires inequalities to benefit the least well off.¹ This was a profound mistake, Danielle Allen² tells us (ch. 1), because his theory’s universalism privileges negative liberty to the sacrifice of political equality and focuses attention on the production and distribution of material goods. Allen urges us to lift the veil and see our world as it is. And she contends that justice demands political equality and rules for action that promote difference without domination in the political, social, and economic realms. Her astonishing opus provides a comprehensive set of design principles for achieving justice by means of democracy.

While Justice by Means of Democracy is poised to upend the world of political philosophy, it also offers a host of insights and lessons for American public law, most notably in the areas of regulatory governance, separation of powers, and administrative law. Yet Allen only briefly touches upon these subjects in her narrative, leaving those insights and lessons largely unspoken. Allen also relies on the unlikely hope that her conception of justice could be achieved through the work of healthy legislatures.

This Review argues instead that regulatory agencies should be recognized as the primary institutional site for implementing Allen’s proposed design principles and securing justice by means of democracy. By directly extending Allen’s analysis to the administrative state, this Review provides a template for reform strategies that could further enhance the democratic pursuit of justice. Finally, this Review shows how Allen’s theory of justice comports with a broader vision of legitimate pluralistic democracy that has gradually emerged in recent work on the administrative state.

Part I describes Allen’s fundamental ideals and design principles for the political, social, and economic realms, along with her expectation that justice can be achieved through healthy legislatures. Part II argues that although Allen’s ideals and design principles are compelling, justice by means of democracy can best be secured by the administrative state. Part II also identifies bureaucracy’s relevant virtues, demonstrates that many of Allen’s design principles are already built into the regulatory state, and proposes reforms that could enhance agencies’ capacity to promote justice. This analysis shows how Allen’s theory could be implemented on the ground and provides a novel blueprint for both appreciating and improving our system of regulatory governance. Part III concludes by describing the corresponding model for the practice of democratic citizenship and related conception of democracy that could achieve this vision of justice.

I. A Vision Correction: Justice as Egalitarian Empowerment

A variety of influential thinkers have suggested that the purpose of just government is to secure the equal empowerment of the people.³ Public institutions should in turn be designed to leverage the competitive and cooperative dynamics of human interaction to promote “the safety and happiness of the people” and their “general welfare” (p. 5). Allen contends that the role of a theory of justice is “to identify the parameters for determining which among possible sets of rules for human interaction yields the best prospects for human flourishing, at both an individual and a species level” (p. 5).

Because individuals can only determine what makes themselves happy, promoting human flourishing requires a society that allows “individualized explorations by each person of their own happiness” and “democratic conversations” that allow community members to make collective decisions “that best permit [them] to bring [their] multiple views about flourishing into alignment” (p. 9). This requires protection of both negative and positive liberties. In other words, human flourishing requires “both private autonomy and public autonomy” (p. 33). The latter requires allowing individuals “meaningful participation in collective decision-making, both through participation in the evolution of cultural practices and the structure of civil society and through participation in the institutions of political governance” (p. 33). Allen concludes that justice can be fully achieved only through democracy because it is the sole form of social ordering that can provide this form of political equality (p. 33).

Allen claims these lessons have been lost on liberal political philosophy and conventional approaches to policymaking since publication of Rawls’s A Theory of Justice.⁴ Instead, the dominant policy paradigm that has emerged focuses on maximizing total economic growth, as measured by income and wealth, and then “using redistributive policies to spread the benefits of that growth” (pp. 16–17). It treats negative liberties—rights to private autonomy and minimal interference from others—as non-sacrificeable in the endless pursuit of more aggregate wealth, whereas positive liberties—political rights to meaningfully participate in collective decision-making—are potentially sacrificeable (pp. 22–30).

Rather than tinkering with this approach, Allen calls for a fresh start in thinking about the meaning of justice. She proposes a paradigm shift based on the proposition that political equality “has the same intrinsic importance for justice and human flourishing” as the negative liberties we currently prioritize (p. 30). Justice by Means of Democracy provides this alternative conception of justice.

Allen explains at the outset that she is focused on the best ways to support human flourishing, which she believes can be determined only by collective deliberation and decisionmaking. Because she knows our rules for action “will be fallible and will need correction,” she is committed to an “ongoing practice of experimentalism and judgment” “about what is and isn’t working.”⁵ Allen’s theory leaves many of the details of institutional design to be worked out pragmatically through trial-and-error experimentation (pp. 61–62). Nonetheless, she articulates several fundamental design principles; sets forth subsidiary ideals for the political, social, and economic realms; and suggests that her vision of justice could be achieved through the work of healthy legislatures.

A. Fundamental Design Principles

Allen’s proposed vision-correction begins with the core proposition that negative and positive liberties should be treated as equally non-sacrificeable (p. 30). This requires fundamental commitments to political equality; meaningful opportunities for public participation; and implementation of a principle of “difference without domination” in the political, social, and economic realms—which Allen collectively refers to as “power-sharing liberalism” (ch. 2).

More specifically, Allen contends that securing positive liberties and promoting public autonomy depends on “maximizing the trajectory toward political equality,” which includes at least five facets: (1) freedom from domination, (2) egalitarian access to the instrument of government, (3) epistemic egalitarianism, (4) reciprocity, and (5) co-ownership of political institutions (pp. 35–45). With respect to the latter four facets, Allen maintains that decisionmaking processes should be “open to all, contingent on each individual’s acquiring the legitimately established qualifications” relevant for exercising each specific form of authority (p. 39). Her vision also includes the establishment of procedures “that unite experts and laypeople in strong partnerships,” so decisions can benefit from the knowledge of all citizens (p. 36). Deliberations should be mutually responsive, and political wins and losses should circulate throughout the citizenry over time rather than consistently favoring certain individuals or groups (pp. 41–43). And everyone in society should understand that they have “an equal ownership share in existing political institutions” (p. 43).

Allen recognizes that treating negative and positive liberties as equally non-sacrificeable is potentially paradoxical because pluralistic societies that respect negative liberties—including freedom of contract and association—will inevitably produce social differences. And the patterns of social difference that develop based on these freedoms could easily disempower some individuals or groups in ways that undermine political equality. Allen therefore adopts another principle “to unify protection of political equality and protection of the other basic liberties (on the principle of shared non-sacrificeability)” and guide economic and social rule-setting to “avoid the emergence of domination” (p. 46). This principle of difference without domination requires us to “scrutinize our institutions to diagnose patterns of difference, work to ascertain whether they arise from or support domination, and, if they do, redesign the rules of governance” in the political, social, and economic realms “to remove or at least lessen the operating forces of domination” (pp. 46–47). Allen explains that under this approach “the job of rule-setting turns the procedural into the substantive, and that our rule-setting across all three domains . . . should be guided by the principle of difference without domination” (p. 47).

Drawing on republican political theory, and in particular the work of Philip Pettit,⁶ Allen explains that “[t]o be free from domination . . . is to be free from the prospect of arbitrary interference or ‘reserve control’ ” (p. 37). Freedom from the possibility of arbitrariness “requires an equal share of control over the institutions—the laws, policies, procedures—that necessarily interfere with your life but that do so, ideally, only to protect each individual from domination by another, and any group from domination by other groups” (p. 38). Hierarchies and constraints must be a result of legitimate procedures and devoid of patterns of domination. This conception of liberty demands and fosters political equality by requiring political, social, and economic power be shared; ensuring that minority interests and views are given adequate consideration; and “refusing to take advantage of the vulnerabilities” of those who do not have political power and influence (p. 138; emphasis omitted). Policies must be based on consideration of the well-being of all those affected (p. 212).

The principle of difference without domination fully accepts and even celebrates social differences generated by freedom of contract and association. It also recognizes, however, that social differences can easily generate or result from domination (p. 50). Allen therefore contends that “the goal of protecting political equality requires that we ask how we can have the social difference that flows from the protection of negative rights without also generating domination” (p. 51). Whereas difference with domination involves situations where social differences give some groups control over others, difference without domination identifies social patterns that do not result in a group or individual having the ability to control another group or individual purely because of their social backgrounds (p. 51). Ultimately, Allen claims that difference without domination should guide our choices about the basic structure of society.

Because political decisions “about how to protect the equal basic liberties always also affect the structure of the social and economic domains and vice versa” (p. 49), difference without domination requires sharing power across political, social, and economic domains (p. 58). In contrast to Rawls, Allen argues that protection of equal basic liberties requires ongoing efforts: not only in “some imaginary . . . state of nature, when a society is founded,” but also over time as social differences form settled patterns (p. 52). She therefore urges us to lift the veil of ignorance and evaluate societal conditions on an ongoing basis (pp. 47–48, 52). If existing patterns of social difference reflect or contribute to domination, we must redesign rules for action in the political, social, and economic domains to alleviate forces of domination and clear the pathway to political equality.

B. Subsidiary Ideals for Each Domain

1. Egalitarian Participatory Constitutional Democracy

While Allen emphasizes that the political, social, and economic spheres are fully integrated and that justice can be secured only by promoting difference without domination across all three realms, she also recognizes that political institutions play a crucial role in protecting negative and positive liberties and supporting human flourishing (p. 67). Allen contends that justice by means of democracy requires a subsidiary ideal of “egalitarian participatory constitutional democracy” for the political domain. Political institutions “must channel dissensus, or difference, without its being converted into domination” (p. 68). Rather than a purely majoritarian system where majorities could dominate minorities, this subsidiary ideal requires a toolkit of multiple forms of participation that “give the citizenry final control over collective decision-making” (p. 68). Democracy only exists, in this view, when “the people as a whole” are given the “capacity to steer the direction of the polity” and safeguards are provided to “counter and check the emergence of concentrations of power” (p. 69). Allen emphasizes that this toolkit must be continually reassessed to respond to demographic shifts impacting the balance of political power (p. 68).

This ideal is supported by design principles such as “depersonalization of power” (p. 69). Allen maintains that democracy is distinct from other forms of government because it establishes mediating institutions that “make it impossible to attribute specific outcomes to specific individuals” (p. 71). That does not mean citizens should be disengaged or unable to hold public officials accountable. Rather, the public should have sufficient participatory opportunities to steer policy and make course corrections so that “final decisions about the direction of the polity always revert back to . . . the citizenry as a whole” (pp. 71–72). This means that “[i]n a successfully functioning democratic regime, it ceases to be possible to designate with an individual’s name who finally holds the reins of power” (p. 71). Depersonalizing power in a democracy requires accountability mechanisms to ensure public officials act on the public’s behalf and procedures to check and balance countervailing powers to equalize power among public officials. Depersonalizing power encourages collaboration, facilitates compromise, and balances the power of competing private interests to prevent excessive influence or control by any given faction (pp. 80–81).

Establishing an egalitarian participatory constitutional democracy requires political institutions “to rest on a principle of fully inclusive participation” that includes “a real sharing of power and responsibility” (pp. 84–85). We should design public institutions to ensure that natural and actual polities are aligned—that those who are affected by a policy decision have “voice in relationship to it” (p. 89). This principle requires constant vigilance: When interested stakeholders are excluded from political decisions that affect them, “a just government is obligated” to pursue institutional reforms and make adjustments that will bring natural and actual polities back into alignment (p. 89).

Depersonalization of power and fully inclusive participation ensure just political procedures. Allen’s final design principle for the political realm seeks to deliver substantive justice by promoting the “safety and happiness” necessary for human flourishing (p. 91). Specifically, Allen contends that an egalitarian participatory constitutional democracy must engage in continuous efforts to balance “energy” and “republican safety” (p. 91). An energetic government allows the people to collectively steer policy to accomplish their objectives. Republican safety, meanwhile, requires safeguards to protect minorities from arbitrary treatment and entails the pursuit of “difference without domination through a durable commitment to positive liberties for all” (p. 91). We should be seeking to establish checks and balances that facilitate reasoned deliberation and prevent majoritarian tyranny, while avoiding excessive procedural hurdles that privilege the status quo and prevent decisionmaking (p. 91). The final goal is “to ensure that positive liberty . . . can deliver substantively for the people” (p. 92). But justice can only be achieved when opportunities for participation have “successfully operated on the basis of inclusive and equalizing processes” (p. 92). Procedures that “incorporate the requirements of non-domination” thereby become “a vehicle for substantive justice” (p. 92).

2. A Connected Society

Allen contends that justice also requires power sharing and the promotion of difference without domination in civil society. The goal is to establish a connected society, “in which no group dominates any other” (p. 115), by securing egalitarian empowerment in the social realm, rather than enforcing “the traditional target of social cohesion” (pp. 102–03). This principle of social organization can be achieved through two design principles: “(1) . . . institutions should be organized to maximize the formation of bridging ties, and (2) . . . cultural habits should be promoted that help individuals flourish in enacting social connectedness” (p. 103).

Allen relies on empirical evidence that suggests that more connected societies tend to achieve more egalitarian outcomes across a range of dimensions (pp. 104–06). Yet connected societies can also nurture distinctive communities of solidarity if all subcommunities are connected by “multiple, overlapping pathways” and individuals want and successfully form valuable relationships with others (pp. 106–07). The boundaries among subcommunities should be fluid in connected societies, and the composition of the community’s subgroups should be expected to evolve over time (p. 107).

Allen claims focusing on social connections provides a helpful framework “for diagnosing when social difference does or does not generate domination” (p. 112). She argues that although the dominant models for dealing with societal difference—assimilationism and multiculturalism—undermine autonomy and generate domination by enforcing conformity with dominant cultural norms or essentialist views of identity, “an ideal of ‘social connectedness’ ” preserves autonomy (pp. 107–13). The more we successfully establish bridging ties, the less our differences may lead to domination (p. 113).

The creation of a connected society requires supportive institutions and policies designed to “maximize the formation of bridging ties” (p. 113). Allen therefore contends that public policies impacting use of land and space⁷ should align with political equality (pp. 113–14) and provide individuals with meaningful opportunities to interact and share power with “unchosen others” across existing lines of social division.⁸ She claims that achieving a connected society requires a reevaluation of labor policies and policies in related areas “that impact mobility and cross-class interactions,” which will “necessarily bring in substantive standards in relation to economic policy” (pp. 114–15). Because a more connected society would “change the underlying demographic facts of the system” and democratic institutions and demographic contexts are co-constituting, the promotion of political equality and associated effort to achieve difference without domination requires a dynamic approach to institutional design (p. 115).

A connected society requires supportive cultural habits and practices (p. 120). Citizens in a diverse society need the capacities, knowledge, and skills to take advantage of the potential value of social relationships in different demographic or cultural contexts (p. 121). Allen therefore observes that promoting the formation of bridging ties means “we will need to support that policy work with cultural work that develops the interactional habits and practices to support success for all at actualizing the potential for value in bridging relationships” (p. 120). This requires development of an “art of bridging,” which could help individuals succeed in making social connections across boundaries of difference (p. 121). Allen recognizes that our knowledge of how to effectively form bridging relationships in diverse societies is underdeveloped, and she concludes that we should do more to understand and cultivate this art of bridging (pp. 121–26).

3. An Empowering Economy

Although the efforts described above to secure positive liberties, political equality, and difference without domination are fundamental and non-sacrificeable in Allen’s theory, her final subsidiary ideal of an empowering economy is purely a means to the desired end. Economic justice or egalitarianism is valuable, in Allen’s view, “to secure political equality and human freedom” (p. 159). The goal, on Allen’s account of justice, “is to build . . . economies that empower the citizenry to succeed as civic participants” (pp. 131, 159).

Allen articulates a detailed set of design principles for achieving an empowering economy (pp. 159–60). First, she argues that the productive sector of the economy should focus on promoting free labor, establishing democracy-supporting firms, and creating good jobs to facilitate difference without domination (pp. 167–80). Second, she advocates policies that would promote investment in collaborations among the public, private, and nonprofit sectors, which would create bridging relationships across divisions that might otherwise form in a market economy and prevent domination by any sector (pp. 177–82). Third, she argues that although experts should serve an advisory role in the formation of fiscal policy, the creation of an empowering economy depends on steering by the national legislature (pp. 182–86). Finally, she reiterates that an empowering economy should “protect equal basic liberties, both positive and negative, both directly and indirectly,” as precompetitive matters (pp. 160–61, 166). In sum, Allen advocates “stakeholder capitalism” rather than “shareholder capitalism” (p. 173).

C. The Role of Healthy Legislatures

Allen suggests that the foregoing subsidiary ideals and design principles must be implemented by healthy legislatures (p. 95). For example, she contends that the balancing of energy and republican safety contemplated by an egalitarian participatory constitutional democracy can be secured only by a well-functioning legislature (pp. 93–95). Congress’s role is to enact policies that reflect the people’s collective will, whereas the executive’s function is merely to convert statutory directives into “completed policy” and thereby “bring the will of the people to fruition” (p. 92).

Allen recognizes that today’s Congress is often paralyzed by political polarization, and she proposes major institutional reforms to unblock Congress’s arteries and enhance its energy. Her proposed reforms include creating a larger House of Representatives, establishing multimember districts and ranked-choice voting, and eliminating the filibuster (pp. 94–95). Allen also recognizes that institutional reform alone cannot fully eliminate or overcome political polarization. Elected representatives must adhere to ethical norms of mutual tolerance and forbearance. This requires a willingness to compromise and commitments to unity, due dependence, and due responsibility (pp. 95–98). Allen concludes that “a healthy democracy depends on a virtuous cycle in which well-functioning political institutions generate positive incentives for healthy participation and a healthy political culture reinforces positive participation in the organizations of civil society and those institutions” (p. 98).

Similarly, Allen claims that producing good jobs is necessary to democracy because good jobs create an empowered citizenry (p. 183). Here, again, she contends that the design principles for securing empowering economies should be established through the democratic steering of healthy legislatures, rather than by independent agencies or through “unchecked delegations to technocrats” (p. 160). Because private firms and owners of capital “may lose sight of the important foundation of justice in free labor,” Allen argues the national legislature must be empowered to steer the national economy (p. 184). Agencies could continue providing policy guidance, but “the legislature should more actively take responsibility for establishing the objectives of those agencies” (p. 184).

II. The Administrative State as Justice’s Primary Site

Justice by Means of Democracy focuses primarily on revising our conceptual understanding of justice and identifying a broad set of design principles and subsidiary ideals for achieving it. On this score, the book is entirely compelling and a landmark achievement. When it comes to implementation, however, Allen only briefly discusses the need to revitalize legislative initiative and responsibility, and she warns of the dangers of unduly concentrated executive powers (pp. 92–95, 183–85). Although she mentions the productive role regulatory agencies could play in advancing certain aspects of her vision, Allen does not dwell on the administrative state’s capacity to promote justice by means of democracy.

This Part contends that we should recognize administrative agencies as the primary site of justice by means of democracy in contemporary American government. First, Congress needs agencies with dedicated missions, specialized expertise, and diverse personnel to achieve its broad policy goals and update the governing rules for action. Healthy legislatures, therefore, routinely take advantage of these virtues by delegating broad policymaking authority to agencies. Justice by means of democracy simply cannot be achieved without agencies.

Second, agencies are more democratic in relevant respects than the other “main” branches of government because they generally have a legal obligation to provide public notice of their proposed regulations, and they must consider and respond in a reasoned fashion to the comments submitted by participants.⁹ They must also provide reasoned explanations for their decisions to withstand judicial review.¹⁰ Agencies frequently go beyond these legal requirements and seek to facilitate public engagement with interested stakeholders—who may not otherwise participate in notice-and-comment proceedings—through tools such as advisory committees, listening sessions, or focus groups.¹¹ Their policymaking decisions routinely involve pluralistic collaboration by a multitude of federal officials. This includes political appointees and agency career staff who have different epistemic orientations and forms of professional training, as well as White House officials, legislative representatives, and officials from other federal agencies—not to mention representatives of state, local, and tribal governments and the international community.¹²

Although agency decisions cannot reflect every interested viewpoint, the mix involved is typically varied, dynamic, and far more balanced and inclusive than what can be accomplished by Congress or the courts.¹³ Agency decisions are also widely understood as provisional, so they can be challenged and potentially changed based on evolving information, values, and the lessons of experience.¹⁴ As explained below, all of this means that many of Allen’s design principles are already built into the structure and operation of the administrative state, and readily available regulatory reforms could enhance agencies’ capacity to promote justice by means of democracy.

A. Fundamental Design Principles

It is somewhat surprising that Allen gives short shrift to agencies’ capacity to promote her vision of justice, considering her broader philosophical outlook. Agencies are, after all, focused on the best ways to promote the conception of human flourishing embodied in a statutory regime when they carry out their missions by redressing market failures, solving collective problems, or channeling resources to enhance the public’s health, safety, or welfare.¹⁵ Their decisions are a product of collective deliberation and decisionmaking. And they are committed to ongoing practices of experimentation and judgment to improve their performance and develop better ways to advance their statutory missions based on lived experience; technological innovation; and evolving legal, political, and social norms.¹⁶

Agencies are also the best-positioned institutions in today’s American government to secure positive liberty and public autonomy by maximizing the trajectory toward political equality. As discussed above, the administrative process protects against arbitrariness, and it promotes freedom as nondomination by obligating agencies to consider divergent interests and views, respond in a reasoned fashion, and provide persuasive justifications for their decisions. Notice-and-comment rulemaking (and its associated requirement of reasoned justification) allows unparalleled egalitarian access to governmental decisionmaking.¹⁷ Agency policymaking often relies upon technical expertise, but it also reflects the normative values of public officials and ordinary citizens, and it frequently incorporates situated knowledge from agency officials, unaffiliated experts, and other stakeholders with relevant practical experience. Well-functioning agencies that use the best forms of public engagement thus exemplify the practice of “epistemic egalitarianism” by “work[ing] hand in hand with a well-educated general population capable of supplying useful social knowledge to deliberations” and making “decisions from a 360-degree point of view, with all perspectives taken into account” (pp. 39–40). Federal agencies are legally obligated to respect the principle of reciprocity by offering mutually acceptable reasons for their decisions that are responsive to public input and providing ongoing opportunities for citizens to contest and potentially change the regulatory status quo.¹⁸ Those practices improve the odds that “political gains and losses” will circulate throughout “the citizenry over time.”¹⁹ Well-functioning agencies will also seek to resist regulatory capture or tunnel vision and instead allow many people to participate equally in creating a regulatory world together. This in turn allows agencies to cultivate an understanding that each member of society has an equal ownership share in regulatory policy and the administrative state.²⁰

Well-functioning agencies are the best-situated institutions to apply difference without domination to concrete social reality. Agencies are well-positioned to secure all of Allen’s five facets of political equality based on well-established principles of administrative procedure and their ability to use additional tools to engage with the public. Modern agencies also possess delegated statutory authority over most areas of socioeconomic policy that would facilitate Allen’s subsidiary ideals of a connected society and empowering economy. This includes social policies “that impact the use of land and space,” such as “transportation policy, housing policy, education policy, health policy, etc.,” as well as economic policies involving labor, trade, and capital (pp. 53–56). Agencies—and perhaps only agencies—can thus promote difference without domination in the political, social, and economic realms.

Although Congress could theoretically enact more detailed legislation in each of these policy areas, it generally lacks the substantive expertise, political will, and consensus-generating capabilities to do so on a regular basis. Moreover, the ideal legislature is neither designed nor situated to apply the broad principles or goals underlying most regulatory statutes to the innumerable complex and unanticipated social realities presented as laws are implemented.²¹ Nor is Congress adept at facilitating broad-based and inclusive public engagement with the legislative process—and, unlike agencies, it is not legally required to consider or respond in a reasoned fashion to significant public comments, support its decisions with reliable data or empirical evidence, or provide persuasive justifications for its policy choices. Courts, in turn, lack the policymaking mandate and structural mechanisms for broad-based public participation that would be necessary for them to perform any better.²² And—like Congress—a president committed to justice by means of democracy would need to enlist the administration to have any hope of successfully implementing Allen’s proposed design principles in the political, social, or economic realms.

Administrative agencies are also well situated to secure difference without domination and promote power-sharing liberalism across the political, social, and economic realms because they are typically authorized to perform functions associated with all three branches of government and regularly engage with interested members of the public in executing these roles. The workings of the political, social, and economic spheres and their resulting impact on political equality are inextricably interrelated. That means securing difference without domination and promoting power-sharing liberalism within each realm requires policymaking authority across all three domains and a coherent procedural and substantive program. Agencies—and perhaps only agencies—can deliver the needed coherent program precisely because they typically possess legal authority to make governing rules for action, enforce those rules, and determine whether those rules have been violated in specific cases. They are also expected to update those rules based on new information, practical experience, and evolving normative perspectives. And they can, should, and often must consult with interested members of the public in making their decisions. Indeed, it is this openness and propensity for consultation which could allow agencies to both quickly identify that problematic forms of social difference are developing and respond to that information in an appropriate manner.

B. Subsidiary Ideals of Justice for Each Domain

The fundamental design principles for achieving justice by means of democracy are already built into the structure of the administrative state. For many of the same reasons, agencies are also the best-situated institutions for implementing the subsidiary ideals and associated design principles necessary to promote justice in the political, social, and economic realms. Although critics often complain that administrative power is the very definition of tyranny,²³ it turns out to be the surest path to justice by means of democracy.

1. Egalitarian Participatory Constitutional Democracy

The design principles for establishing an egalitarian participatory constitutional democracy in the political sphere are more likely to be achieved by well-functioning agencies than by any other governmental institution. Consider, first, the need for depersonalization of power through accountability mechanisms and the checking and balancing of countervailing powers. It is easy to see how agency policymaking is depersonalized. The classic conception of bureaucracy is based on its nameless and faceless nature.²⁴ Critics contend that this depersonalized feature of agency decisionmaking is what makes regulation undemocratic, because if no one is responsible, there is no one to blame.²⁵

Yet Allen turns this perspective on its head by claiming that the collective people must, in effect, rule themselves. This requires a different form of accountability that includes sufficient opportunities for public participation so that policy choices can be meaningfully attributed to the people as a whole, as well as procedural safeguards to prevent any person or group from achieving monopolistic control over the resulting policies. Decisionmaking processes should therefore be designed to encourage compromise and collaboration, and they should reflect a balance of competing interests to prevent excessive influence or control by any given faction (pp. 74–81).

Well-functioning agencies are well situated to achieve both aspects of this design principle. They have highly collaborative and participatory natures, and a wide variety of levers encourage agency officials to consider divergent interests and views, while insulating them from domination or control by any individual or entity. The bottom line is that administrative rulemaking “both requires and enables agencies to act as a site for multilateral, diachronic contestation over specific policy decisions.”²⁶ Not every interest or view will be reflected in every decision, but agencies cannot promulgate legally binding rules that are likely to withstand hard-look judicial review without considering a broad range of issues and perspectives. “With their multiple channels for diverse inputs and their strong structural safeguards against arbitrary decisions, agencies are our central institutions for mediating among divergent views and interests.”²⁷ Although regulations may nominally be promulgated by the agency head, their specific content generally cannot be attributed to any specific individual.²⁸ Rather, the administrative rulemaking process depersonalizes power through accountability mechanisms and the checking and balancing of countervailing powers, thereby providing our most promising avenue for producing legitimate collective decisions.

Regulatory agencies also have the potential to achieve full inclusion of those impacted by policies through carefully designed public engagement efforts. Although notice-and-comment rulemaking is open to anyone, in practice, the process tends to be dominated by business interests and other well-organized groups.²⁹ Agencies can, however, work to target otherwise missing stakeholders—including unaffiliated experts, individuals with situated knowledge of the regulatory issues, and ordinary citizens with relevant information—and encourage them to participate in notice-and-comment rulemaking and other more interactive public engagement efforts. Michael Sant’Ambrogio and I have proposed a set of best practices for facilitating balanced and informed participation in these public engagement efforts,³⁰ which would help ensure those affected by agency decisionmaking “have voice in relationship to it” (p. 89). We have also encouraged agencies to adopt planning documents that articulate their general policies for involving the public and their specific plans for public engagement in rulemaking proceedings.³¹ These policies would result in continuous efforts to fully include those impacted by policies “through the development or evolution of governance mechanisms” (p. 89).

Well-functioning agencies thus have the capacity to exercise depersonalized power through fully inclusive procedures. They can also deliver substantive justice by promoting “the ‘safety and happiness’ of the people” and “the conditions for flourishing” (p. 91). Indeed, agencies are the best-positioned institutions in contemporary American government to strike the necessary balance between energy and republican safety. For starters, they allow the people to steer policy in a collective manner that promotes Congress’s objectives. In today’s political and policy environment, Congress can realistically identify and agree upon only relatively broad goals to support human flourishing, such as promoting clean air or providing safe conditions for workers. Lawmakers routinely charge agencies with figuring out justifiable ways to achieve those objectives, and agencies in turn rely on collaborative procedures that involve a diverse group of public officials and interested members of the public, as discussed above. We also expect agencies to update their policies based on new information, prior experience, and evolving perspectives. In addition, Congress needs agencies to determine sensible ways of implementing statutory regimes when unanticipated problems arise or when circumstances materially change.³² As noted above, the administrative process contains safeguards to avoid domination when agencies perform these functions. Well-functioning agencies are therefore our most dependable resource for achieving an energetic government while promoting the principle of difference without domination.

2. A Connected Society

Well-functioning administrative agencies are also in the best position to support the establishment of a connected society and implement its two key design principles. For starters, agencies can provide citizens with bridging opportunities through their own public engagement efforts. Participation in listening sessions or focus groups could provide individuals with meaningful opportunities to interact and share power with people who have different backgrounds or views. The quality and potential strength of those bridging ties might be even greater for citizens who participate in enhanced deliberative exercises that involve the formation of “mini-publics” to discuss and make recommendations on policy issues—such as citizen juries, advisory committees, or deliberative polls—because those experiences tend to involve more prolonged and intensive interactions among diverse members of the public.³³

Public engagement with agency rulemaking could also help to promote cultural habits “that help individuals flourish in enacting social connectedness” by providing concrete experience in “interact[ing] successfully across boundaries of difference.”³⁴ The proliferation of such experiences could gradually build a culture of civic participation that would facilitate the creation of a connected society. Agencies profit from the development of a corps of citizens who are experienced with public participation in regulation and could therefore be recruited for similar efforts in the future.³⁵ Additionally, public engagement efforts provide social movement groups with new levers of countervailing power to influence public policy, thereby strengthening their own involvement with regulatory governance and potentially promoting difference without domination.³⁶

Agencies are also well-positioned to facilitate the creation of a connected society through the adoption of substantive polices that maximize the formation of bridging ties in relevant policy areas.³⁷ Agencies have delegated statutory authority to make policy in many of the areas that impact the use of land and space that Allen has identified.³⁸ The same is true of labor and other policies that impact mobility and cross-class interactions.³⁹

As discussed above, agencies are also capable of instituting a dynamic approach to institutional design based on changing structural and demographic contexts. They should therefore be encouraged to adopt policies that promote political equality and maximize the formation of bridging ties across lines of social division. And although the creation of a connected society may face political resistance, well-functioning agencies are generally more likely to adopt policies of this nature than Congress, particularly when agencies engage in serious public engagement efforts.⁴⁰ The adoption of regulatory policies that facilitate the maximization of bridging ties in civil society pursuant to just administrative procedures could be expected to help produce a virtuous cycle that would, in turn, promote cultural habits that help individuals flourish in enacting social connectedness.

3. An Empowering Economy

Regulatory agencies are also indispensable to any effort to establish an empowering economy. In fact, they are far more likely than a polarized Congress, a blinkered and corporatist federal judiciary, or the president alone to provide the requisite democratic steering and promulgate the necessary policies. First, administrative agencies could use enhanced public engagement efforts to promulgate relevant policies in the areas of labor, housing, health care, transportation, corporate governance, etc. Those efforts could include all the relevant interests and perspectives, and they could provide agencies with reliable information about the policy views of an informed electorate that deliberated on the issues.⁴¹ Agencies could also facilitate the public-private collaborations and partnerships that Allen views as vital to promoting empowering economies (pp. 177–80).

Second, administrative agencies acting pursuant to fully inclusive, collaborative procedures are more likely than other contemporary American governmental institutions to enact substantive policies that promote free labor, democracy-supporting firms, and a good-jobs economy. These design principles are already broadly compatible with the statutory missions of agencies in relevant policy areas.⁴² As discussed above, well-functioning agencies are well-situated to promote positive liberty, political equality, and difference without domination. There is no legal barrier to agency efforts to facilitate meaningful and balanced public participation or to strive to promote nondomination as a guiding principle.⁴³ Much of contemporary administrative law could be understood as an effort to promote the subsidiary ideals of egalitarian participatory constitutional democracy and a connected society.⁴⁴

There are thus both procedural and substantive explanations for why regulatory agencies are the best-situated institutions in contemporary government to promote an empowering economy. From a procedural standpoint, well-functioning agencies can promulgate rules through fully inclusive procedures that consider and respond in a reasoned fashion to all the relevant interests and perspectives.⁴⁵ Members of the working class, disenfranchised minorities, regulatory beneficiaries, and other stakeholders who are traditionally absent from policymaking processes are more likely to support proposals that will help build a vibrant middle class than wealthy business interests that exert disproportionate influence over government decisionmaking. This may be especially true when affected individuals engage in informed deliberations as members of mini-publics rather than venting on social media.⁴⁶ Moreover, if agencies are tasked with promoting difference without domination, they will necessarily work to reduce or eliminate the operative forces of structural oppression and protect otherwise vulnerable individuals or groups from mistreatment by those with greater power.⁴⁷ In this way, the job of administrative rulemaking turns the procedural into the substantive and promotes justice by means of democracy.

The Federal Trade Commission’s (“FTC”) proposed rule to prohibit businesses from using noncompete clauses in worker contracts⁴⁸ provides a concrete example of a regulatory policy that would promote an empowering economy. This proposed rule was the product of extensive research and public engagement efforts by the FTC over several years.⁴⁹ The FTC held multiple hearings and workshops on various aspects of this problem⁵⁰ and solicited several rounds of public comment on related topics. These engagement efforts generated hundreds of comments from a wide range of stakeholders—“researchers, advocates for workers, employers, trade associations, attorneys, members of Congress, state and local officials, unions, other organizations, and individual members of the public.”⁵¹ The FTC claims it has “closely considered the views expressed” in its engagement efforts when developing its proposed rule, and this information “informed the Commission’s understanding of the evidence regarding the effects of non-compete clauses; the law currently governing non-compete clauses; and the options for how the Commission may seek to restrict the unfair use of non-compete clauses through rulemaking, among other topics.”⁵² In other words, the FTC’s development of this policy proposal was a product of democratic steering by a diverse group of interested stakeholders.

The FTC’s proposed rule would also promote the design principles of an empowering economy as a substantive matter. Noncompete clauses restrict worker mobility.⁵³ Roughly one in five American workers—approximately 30 million individuals—are currently bound by noncompete agreements.⁵⁴ The FTC claims that such clauses hurt employees and harm competition “[b]y preventing workers across the labor force from pursuing better opportunities that offer higher pay or better working conditions, and by preventing employers from hiring qualified workers.”⁵⁵ According to the FTC’s analysis, “the proposed rule could increase workers’ earnings across industries and job levels by $250 billion to $296 billion per year,” and “would close racial and gender wage gaps by 3.6–9.1 percent.”⁵⁶ The proposed rule appears to be authorized by the plain meaning of the Federal Trade Commission Act (“FTCA”), which prohibits “[u]nfair methods of competition,”⁵⁷ instructs the FTC “to prevent persons, partnerships, or corporations . . . from using unfair methods of competition in or affecting commerce,”⁵⁸ and authorizes the FTC to “make rules and regulations for the purpose of carrying out” the FTCA’s provisions.⁵⁹ The proposed rule would promote an empowering economy by facilitating free labor, democracy-supporting firms, and a good-jobs economy, as well as by advancing the ideal of difference without domination.

A national prohibition of noncompete clauses is a policy that could likely only be enacted, as a practical matter, by a federal regulatory agency—neither Congress, nor the president, nor the federal judiciary has both the legal authority and political wherewithal to adopt such a policy. And, indeed, there is a high likelihood that today’s Supreme Court would invalidate a final FTC rule prohibiting noncompete clauses by (1) adopting an unduly cramped reading of the FTC’s statutory authority, (2) invoking the major questions doctrine, or possibly even (3) reinvigorating the nondelegation doctrine.⁶⁰ It may therefore be helpful if a healthy legislature amended the FTCA to provide a clear statement of the FTC’s authority to prohibit noncompete clauses (though no one should hold their breath).

As things currently stand, regulatory agencies are the primary site in contemporary American government for multilateral deliberation and debate among citizens with competing interests and views. They are therefore the most promising site for creating an empowering economy and securing justice by means of democracy. The following section recognizes, however, that agencies are not always at their best and that securing justice by means of democracy requires support from all “four” branches of government. It then briefly sketches a few key strategies that are readily available for enhancing the administrative state’s capacity to promote justice.

C. Enhancing Justice by Means of the Administrative State

In our current system of government, administrative agencies are the primary site for securing justice by means of democracy. But agencies do not always function well and often fall short of their potential. Regulatory reform is therefore needed to improve the internal operations of agencies and ensure the other “main branches” of government collaborate with them to promote justice.

This Review is not the place for comprehensive regulatory reform proposals, but I will sketch a basic outline of what I have in mind. Although many of these reforms have already been suggested, it is important to recognize they are needed to secure Allen’s vision of justice by means of democracy. I suggest prioritizing three main avenues of reform.

First, agencies should seek to engage in reasoned deliberation and make decisions that promote their statutory missions in the most justifiable manner on the merits under the circumstances based on all the relevant considerations. This will involve ongoing practical reasoning rather than final objectively correct answers.⁶¹

Second, agencies should seek to implement best practices for engaging with interested members of the public, focusing particularly on traditionally absent stakeholders and the early stages of rulemaking.⁶² Agencies should also pursue related efforts to facilitate more balanced and informed participation in notice-and-comment proceedings.⁶³ In addition to targeted efforts to involve traditionally absent stakeholders, federal agencies should regularly collaborate with representatives of state, local, and tribal governments⁶⁴ and consider appointing representatives to advocate the interests of key stakeholders who cannot be included or adequately protected in other ways.⁶⁵

Third, agencies should affirmatively seek to promote difference without domination when they adopt regulatory policy, especially in the areas identified by Allen that involve relevant rules for action in the social and economic spheres. Sabeel Rahman has provided a compelling argument for pursuing nondomination in financial regulation,⁶⁶ and there have been recent efforts to reform administrative law or regulatory policy along similar lines through the lens of critical or feminist theories.⁶⁷ The pursuit of justice by means of the administrative state would greatly benefit from more of these efforts, both as a theoretical and practical matter.

Of course, even the best functioning agencies need the support of the White House, Congress, and federal courts.⁶⁸ Securing justice through the administrative state would thus require all “four” branches to collaborate on the joint project of creating the institutional framework and conditions necessary to fully implement Allen’s design principles and pursue her vision of power-sharing liberalism. This will require concerted efforts to rebuild and strengthen the civil service after decades of neglect and four years of withering attacks by the Trump Administration.⁶⁹ Although such efforts should help to rebuild Americans’ trust in the bureaucracy, we ultimately need a broader cultural shift in our understanding of democracy and related ethical norms to fully achieve Allen’s vision (pp. 199–201).

The final part takes up that challenge. It explains that Allen’s proposed model for the practice of democratic citizenship and a newly emerging political theory of agonistic republicanism, which share similar elements and commitments, can work together to provide us with the intellectual tools to make this possible.

III. Democratic Citizenship and Agonistic Republicanism

Allen knows that achieving her vision of justice requires cultural reform as well as changes to our political, social, and economic institutions. Her final chapter therefore presents a new model for the practice of democratic citizenship that comports with her conception of justice (ch. 7).

Allen contends that aligning the practice of democratic citizenship with her vision of justice poses three distinct challenges. The first challenge involves helping citizens develop the multitasking lifestyle necessary to successfully perform their civic functions (pp. 201–03). People must be given the time and other capacities required for meaningful public participation. The second challenge is based on the relatively demanding intellectual burdens that democracy places on citizens. They must both “process abstract conceptualizations of power and agency to a degree that can sustain seeing the decisions of public bodies as belonging to the society as a whole” and “make judgments about collective social directions” (pp. 205–06). In contrast to authoritarian populism, for example, where a single leader purports to act on behalf of a unified people,⁷⁰ democracy’s depersonalization of power makes it harder to understand public decisions as reflecting the people’s will. And the people in a republican democracy are expected to judge legal and policy decisions on their merits rather than simply accepting their legitimacy by fiat (pp. 204–05). The third challenge involves ensuring that all people feel shared ownership, belonging, and equal standing in relation to political institutions (p. 208). Allen considers this relational challenge the most daunting because it requires “civic participants in a pluralist democracy . . . to empower each other as cocreators” (pp. 208, 211).

Allen draws on the teachings of Dr. Martin Luther King Jr. to address this relational challenge. First, “justice requires that we treat our fellow human beings as ends, not means” (p. 211). Second, we must “recognize and enable the equal capacities of all to deliberate, decide, and take responsibility” (p. 211). “Third, we must contest the failure of others to fulfill those first two duties through the techniques and discipline of nonviolence . . . . [which] fully embodies the principles being fought for . . . .” (p. 211). She also recognizes that overcoming this relational challenge requires deep societal compromise because following practices of nonviolence demands more of the oppressed, whereas sharing decision-making power and responsibility demands more of the powerful—and both sets of practices involve treating political opponents as ends rather than as means (pp. 213–14).

Allen’s model for the practice of democratic citizenship also draws upon her own insight that political participation is multivalent and requires citizens and public officials to modulate between conflictual and consensual modes of engagement (p. 217). She identifies three core activities that underlie prior historical understandings of democratic citizenship: “(1) deliberation, or consensus-oriented group decision-making; (2) fair fighting, or adversarial advocacy for goals within a framework of tolerance, mutual forbearance, and respect for one’s rivals; and (3) prophecy, or frame and value shifting” (p. 219). To Allen, “these are not,” in reality, “three separable activities;” instead, they “exist together in a variety of different configurations and are often allocated to different persons or roles” (p. 219). She accepts “a division of labor,” so long as it “emerge[s] from the autonomous choices of the citizenry, in contexts of full opportunity” (p. 220).

In Allen’s model, the multitasking challenge can be addressed by providing citizens with the time and information necessary to democratically participate in ways they find appealing and by creating “a virtuous cycle linking what happens in economic and social domains to support for citizens’ multitasking in the political domain” (p. 220). She contends that the second and third challenges are closely connected by the question of the proper role of “self-interest” in the practice of democratic citizenship (p. 220). Because citizens necessarily have self-interests that will influence their positions, Allen suggests that we can only make progress in confronting these challenges by focusing instead on the concept of “purpose.” She argues that “we should start from the recognition that the point of civic and political engagement simply is the pursuit of one’s purposes” (p. 221). This shift in focus, Allen believes, will help reconsider “how people ought to engage with their own commitments in public spaces” (pp. 221–22).

From Allen’s perspective, the pivotal question then becomes how we connect our purposes to others’ (p. 222). This can be achieved, she contends, “by holding their ‘thouness’ in our hearts, by including all affected in the process of decision-making, and by using principles of nonviolence to respond to injury” (p. 222). Allen claims that “[b]y coming to see how our purposes get linked with those of others, and by thinking about how we make judgments about our purposes and connect them to broader efforts,” we confront these challenges simultaneously (p. 222). She concludes that “deliberation, fair fighting, and prophecy[ ]all require the same ethical practice: regulating and transforming self-interest in the direction of purposiveness” (p. 222). “The good citizen,” therefore, “isn’t first and foremost informed or engaged but authentic and equitable” (p. 201).

Allen’s proposed model for the practice of democratic citizenship resonates with a broader vision of democracy that has gradually emerged in recent work on regulatory governance and the administrative state. This vision, which Anya Bernstein and I have called “agonistic republicanism,”⁷¹ views ongoing deliberation and contestation as central to the legitimacy of pluralistic democracy, and it understands liberty as freedom from the possibility of domination by private actors or the state. From this perspective, democracy provides multiple ways for different people to advance their views in deliberation and negotiation with one another. The goal is to reach reasonably justifiable decisions that are themselves provisional, subject to further debate and revision as time goes on. It thus requires mediating institutions to provide sites for deliberation and debate. It also assumes that it is legitimate for different individuals or groups to have different views on policy means and ends and that ongoing discussion and conflict are part of democratic governance. The will of the people emerges through the work of democratic institutions, and that will is always subject to potential revision.

This democratic vision is broadly reflected in republican political theory, deliberative democracy, and agonistic democratic theory. Although deliberative democrats and agonists are often portrayed as rivals because the former seek consensus while the latter valorize conflict, both theories emphasize ethical principles and normative values that are vital to pluralistic democracy and present to varying degrees in any legitimate and functional political system.⁷² Democracy involves consensus and disagreement, settlement and provisionality, reasoned deliberation and passionate contestation. Both theories are compatible with each of these propositions, and they recognize the need to view political opponents as legitimate adversaries and treat them with a sufficient degree of respect. Both theories also recognize the coercive nature of legal authority in circumstances of disagreement and acknowledge that, because “no coercion can be either incontestably fair or predictably just, democracies must find ways of fighting, while they use it, the very coercion they need.”⁷³ While “[d]eliberate democracy and republicanism tend to focus on legitimate ways to use coercive authority,” agonism emphasizes “legitimate ways to fight it.”⁷⁴ Both, however, “require meaningful public participation, vigorous dissent, and mechanisms for contestation; insist that legal and policy decisions are provisional; and treat nondomination as democracy’s central aim.”⁷⁵

In other words, consistent with Allen’s treatment of historical models of citizenship, “it would be wrong to suggest” that republicanism, deliberative democracy, and agonism present discrete conceptions of politics, or that legitimate democracies must choose “between conciliation and conflict” (p. 217). Rather, those theories collectively reflect “the multivalent character of political participation, where civic agents are faced with the overarching task of modulating and switching between demands for consensus and conflict, where civic participants are always both ‘civic’ and ‘political’ ” (p. 217). The key to achieving an ideal agonistic republican system of government involves finding and maintaining an appropriate balance, distribution, and mix of deliberative and agonistic elements and discovering the best means of securing freedom as nondomination.

Allen’s proposed model for the practice of democratic citizenship—and King’s response to the relational challenge upon which she builds—resonates with agonistic republicanism partly because it incorporates core aspects of deliberative, agonistic, and republican democracy. Recall her description of the core activities of democratic citizenship: “(1) deliberation, or consensus-oriented group decision-making; (2) fair fighting, or adversarial advocacy for goals within a framework of tolerance, mutual forbearance, and respect for one’s rivals; and (3) prophecy, or frame and value shifting” (p. 219). She also emphasizes that each of these tasks requires citizens to regulate and transform “self-interest in the direction of purposiveness” (p. 222). The first activity reflects principles of deliberative democracy,⁷⁶ particularly given Allen’s claim that citizens must connect their self-interests to the good of the community and seek to identify common purposes that individuals with different perspectives can share (pp. 222–23). The second activity—fair fighting—epitomizes agonistic principles as “civic participants take up causes they care passionately about and pursue them as advocates,” while recognizing “the dignity and rights of ones’ rivals” and adhering to “norms of forbearance and tolerance” (pp. 223–24). In other words, “[f]air fighters seek to best their opponents within the scope of agreed-upon rules by mobilizing noncommitted groups to their side” without seeking “to obliterate their adversaries, nor to alter those rules to prevent subsequent competition” (p. 224). The third activity—prophecy—“mediates between the two poles of deliberation and advocacy and directly takes up the question of what our purposes should be” (p. 224). Prophecy incorporates republicanism’s commitment to securing freedom as nondomination by seeking to shift societal values and “reshape the purposes that people bring with them into the political arena in the first place” (pp. 224–25). The centrality of nondomination in Allen’s model is reinforced by her emphasis on the need for citizens to develop and pursue their purposes in a manner that is both authentic—“clear about what matters to them and why”—as well as equitable—“the mode of purposiveness that emerges when we hold the ‘thouness’ of others in our hearts and fold the ongoing health of our community into our understanding of our purpose” (p. 225). In other words, authentic and equitable citizens will treat their fellow human beings as ends, not means, and strive to promote the public good, consistent with republican theory.

Allen’s proposed model also resonates with agonistic republicanism because she recognizes that the core activities of democratic citizenship “can exist together in a variety of different configurations and are often allocated to different persons or roles” (p. 219). She therefore claims that “[a] complete model for the practice of democratic citizenship will include all these activities, while recognizing that not all citizens will undertake all of them” (p. 219). The key is “that citizens have the chance to develop their own multitasking personas, their own civic identity, as best suits and empowers them” (p. 220). Allen’s model would effectively promote core principles of deliberative democracy, agonism, and republicanism while respecting individual autonomy and securing the equal empowerment of the people.

Thus, in addition to being a “eudaemonist democratic pragmatist,”⁷⁷ it appears that Allen is also an agonistic republican. In this, she is in increasingly good company.⁷⁸ A body of recent work on public law and regulation has woven nondomination and contestation into our understanding of a democratically legitimate political and legal system. Like Allen’s theory of justice, this work emphasizes that a legitimate and just government requires ongoing public engagement and institutional support. This involves both appreciation for, and enhancement of, the mediating roles of Congress and agencies and pushing back on increasingly influential and fundamentally undemocratic efforts to shift authority to a unitary executive and authoritarian courts.⁷⁹ It also involves a vision of political economy that relies upon robust opportunities for public participation by ordinary citizens and social movements to enable them to challenge prevailing power arrangements.⁸⁰ Agonistic republicanism incorporates pluralism along multiple axes into its conception of democracy, emphasizes the provisional nature of legal and policy choices, and seeks to facilitate the equal empowerment of the people to promote freedom as nondomination.⁸¹ Consistent with this vision, Allen’s design principles and associated model of democratic citizenship would work together to enable everyone in the polity to fully share power and responsibility and thereby achieve justice by means of democracy (p. 227).

Consistent with that same vision, we should recognize that well-functioning agencies are the most promising institutional sites to implement Allen’s proposed model of democratic citizenship and her related design principles and thereby achieve justice by means of the administrative state.

Conclusion

Justice by Means of Democracy presents a powerful and normatively attractive theory of justice. One likely critique of Allen’s theory would involve questions regarding how it could be implemented. This Review answers that critique by explaining that justice by means of democracy could, and likely must, be achieved through the work of well-functioning administrative agencies.

Another likely critique of both Allen’s book and this Review would contend that our (mostly) shared conception of justice is unattainable. We simply cannot persuade those with power to share it and refrain from dominating those who are less fortunate. One answer to this concern is that if we can begin to persuade the people who influence or set the policy agenda that positive liberties and negative liberties are equally non-sacrificeable, we could begin to establish the virtuous cycle that Allen envisions for promoting egalitarian empowerment in the political, social, and economic realms (p. 160). Once people are given meaningful opportunities to participate, they will help to ensure that “the arc of a moral universe . . . bends toward justice” and nondomination.⁸²

That may still be wishful thinking on some level. But our ability to achieve justice by means of democracy ultimately depends on the choices and actions of the people and their representatives. Allen can explain what justice means and the fundamental commitments we must make. And I can attempt to build on her work to explain how to achieve justice through existing democratic institutions. But we cannot force the American people or their representatives—and especially those who currently possess a disproportionate amount of power—to want to achieve justice. Allen’s proposed design principles “work toward establishing the conditions and practices of shared power” (p. 227). Her proposed model for the practice of democratic citizenship “equips people to share power and responsibility” (p. 227). Yet Allen acknowledges that her vision of justice will only exist when that power and responsibility is actually shared by all (p. 227). The goal is each of us living our best lives with the “flourishing that comes from human empowerment—from self-government in our private lives and shared self-governance in our public lives” (p. 229). Until we achieve that vision, we will continue to strive for justice, and we will continue to fall short. But by showing us what justice means and laying the groundwork to figure out how best to achieve it, Allen has greatly improved our prospects for flourishing.

Co-Associate Dean for Academic Affairs, Professor of Law & The A.J. Thomas Faculty Scholar, Michigan State University. Thanks to Anya Bernstein for conversations, collaborations, and comments, and to Aidan Sprague-Rice for exceptional research assistance.