In 2025, LPE co-founder Sabeel Rahman called for a Third Reconstruction. In his telling, small-r reconstruction is a mode of structural reform aimed at leveling entrenched hierarchies in pursuit of multi-racial democracy. To achieve these ends, he argues, reconstruction requires a politics that is double-sided. It must build institutional capacity to power democratization while dismantling the structures of domination.
But reconstruction also demands something LPE has not yet fully articulated: a constitutional politics. By constitutional politics, I mean a movement or coalition’s core claims about who should wield state power and on what terms.
This is not the same as merely making constitutional arguments. To argue that “the death penalty is unconstitutional,” for instance, fails to stake out a definitive constitutional politics, as it leaves open the questions of who has the power to make this determination and who can enforce the Constitution against unwilling states. By contrast, to argue that “the Supreme Court should abolish the death penalty” or that “Congress must reclaim authority from the Court” is to make a claim about the proper allocation of governing authority.
Bona fide reconstruction movements have always involved constitutional politics. During “Congressional Reconstruction” (1867–1877), the Radical Republicans sought to entrench legislative supremacy against a reactionary presidency and hostile courts. The results were this country’s most marvelous push for multi-racial democracy, defined by the three Reconstruction Amendments, the Freedman’s Bureau, the creation of the Department of Justice, and scores of statutes designed to root out caste in the South. Similarly, the Progressives contested juristocratic authority during the Lochner Era, as did the New Dealers, who fought to secure space for legislative and administrative governance. They created scores of new agencies like the Federal Trade Commission, which were aimed at vindicating what William Novak has called “substantive democracy.” These struggles were not merely about policy. They were about institutional settlement discussed in the grammar of the American constitutional project.
Movements of retrenchment (think, for example, of the white resistance to the First Reconstruction) have also generally elaborated constitutional politics. Through varying combinations of juristocracy, federalism, and presidentialism, they have sought to sustain or reimpose hierarchy (using tools like property law) and to derail the instrumentalities of reconstruction (by undermining state capacity). Seen from this vantage point, American politics today is continuous with the past; the contemporary Right’s success rests not only on legal doctrine, but on a coherent vision of how state power should be organized to stamp out egalitarian progress.
Successful movements, whether aiming at reconstruction or retrenchment, are generally rooted in constitutional politics because these politics provide three things: a theory of authority, a narrative of historical legitimacy, and a structural roadmap beyond short-term opportunism. Without constitutional politics, structural reform becomes ineffectual and technocratic. It lacks an institutional anchor. This is, unfortunately, where the Left finds itself today. As I argue in the following post, if we are to fully realize the dream of post-Trump reconstruction, then we must develop a theory of constitutional politics. More specifically, I argue, this politics must involve the destruction or fundamental transformation of both juristocracy and the modern managerial presidency.
The Right’s Radical Constitutional Politics
Without overstating the level of competence on display within the MAGA coalition, we can see the Right’s most capable agents successfully pursuing objectives that follow quite naturally from a constitutional politics rooted in retrenchment and hierarchy. Rather than pursuing policy goals alone, they have sought a radical presidentialist settlement. They treat the presidency as the authentic embodiment of popular will, work systematically to sideline Congress, selectively weaken administrative capacity, and subordinate the bureaucracy to executive control. This is not incrementalism. It is institutional redesign.
The Right’s embrace of a maximalist unitary executive theory is best understood as constitutional politics in action. Courts remain important, but presidentialism is the true vehicle for radical retrenchment. Even in the high watermark of American juristocracy, courts are limited in their ability to reimpose and maintain social hierarchies. They proceed piecemeal and are divided internally, both by the structure of the federal judiciary and the role played by center-left jurists. The presidency, by contrast, can be directed, rapidly and unilaterally, against perceived enemies and egalitarian institutions. It can operate quickly and, as ICE as made all too plain, without the niceties of legal process.
Beyond offering a theory of authority that suits the Right’s goals, presidentialism also connects the Right’s actions to a narrative of historical legitimacy—such as the numerous whig histories grounding presidentialism in American legal traditions—and furnishes a roadmap for the future. Some commentators have found solace in the MAGA coalition’s lack of meaningful legislation. But Trumps’ legislative strategy flows directly from the Right’s constitutional politics. By avoiding legislative politics, Trump is reinforcing the idea that he, alone, is the manifestation of the American volk’s will. The results are telling. When a Texas A&M student confronted an instructor for teaching on gender in the classroom, she accused the instructor of violating the “President’s law.” We are hurdling towards a reality where, for many, Trump really is the embodiment of the popular will.
The best practitioner of the right’s radical constitutional politics is not, however, our elected president. Instead, it’s MAGA’s “shadow president,” Russell Vought. He has dissected the vestiges of the New Deal state, perpetrated a systematic attack on the civil service, put an end to agency independence, encroached on congressional prerogatives, and advanced a maximalist unitary executive theory. Compared to someone like Stephen Miller, whose gutter racism manifests in a largely ineffective politics devoid of structural thinking and self-restraint, Vought’s spin on the same instincts manifest in a politics rooted in structural reform, thick constitutional rhetoric, and historicized thinking.
Part of Vought’s success depends on his distinctive worldview, which merges religiosity with the language of constitutional law. The religiosity behind Vought’s constitutional politics gives him a long-run perspective that defies many of his colleagues’ short-term opportunism. And his avowed reverence for a constitution in exile helps him seem less like a radical reactionary. Indeed, his legal vocabulary makes him sound like a rule-of-law conservative even as he works to sideline our foremost law giver, Congress.
Vought embodies the next evolutionary step in the Right’s constitutional politics. He has gone all in on a tribune-like presidency because he sees that office as the only effective means for vindicating a sidelined American volk. Vought wants a putsch from below, a sidelining of “deep state” elites by the office with a credible claim on ownership of the executive branch. Vought’s unitary executive transcends legal limitations or inter-branch checks. More importantly, Vought understands that presidentialism makes reconstruction a nonstarter. Any progressive initiative that gets off the ground will be quickly quashed the next time Republicans capture the White House.
This is, in part, why Vought has so explicitly moved to disenfranchise Congress, which has always been the real threat to his project. Just like Andrew Johnson was cowed by the Radical Republicans during the First Reconstruction, Congress today could pull out the rug from under Trump by successfully deploying its power of the purse and its ability to restructure the administrative state. To date, however, Vought has largely succeeded in sidelining Congress, as his attacks on Congress have only deepened Americans’ cynicism about legislative power.
There is no Russell Vought of the Left. While some may celebrate this fact, it means the Right is pushing against an open door. Instead of mounting a theory to destabilize Vought’s case for constitutional legitimacy, the Left and the center-left have drifted into institutional agnosticism, treating the entire purpose of politics as the pursuit of discrete initiatives that almost always disappoint. Most damningly, the Left has failed to articulate any alternative to the dead gods of the New Deal: expertise-based authority and legal liberalism. The result is a Left deeply invested in state capacity but hesitant to articulate who should control state power.
Deconstructing Presidentialism
Over the past decade, the Law and Political Economy movement has done more than any contemporary legal project to recover the structural stakes of public law. It rejects the technocratic complacency of late legal liberalism and foregrounds structural reform, state capacity, and democratic legitimacy. But, without a coherent constitutional politics, LPE risks playing right into the hands of a Vought-like figure. Indeed, without an agenda firmly rooted in reconstruction constitutional politics, many of its programs and initiatives may even exacerbate the country’s slide into presidentialism.
Rahman understands this, emphasizing that reconstruction requires neutralizing authoritarian power. “The Roberts Court,” he writes, “has underwritten this assertion of personalistic presidentialist control through its embrace and development of unitary executive theory, blessed the laundering of animus through immigration enforcement, and neutered those economic regulatory capacities most hostile to concentrations of economic power and inequality.” Yet while recognizing the obstacles posed by the MAGA presidency to reconstruction, Rahman stops short of offering a concrete agenda for arresting its rise. This silence on constitutional politics naturally evokes something like the question to LPE Sam Moyn posed long ago: are we low-key presidentialists?
There are two key problems related to any tacit LPE embrace of presidentialism. First, presidentialism dooms LPE’s initiatives. Consider recent work calling for a revived industrial policy. The case for what the authors call “coordinated administrative investment” and “countervailing power” is compelling. Yet this proposal ignores the challenge posed by existence of the unitary executive. In a presidentialist state—one increasingly structured around the unitary executive—new administrative capacity risks becoming an instrument of centralized executive will. The idea that marginalized communities could be called into the exercise of administrative power is fundamentally at odds with a conception of the state that increasingly sees even notice-and-comment rulemaking as an intolerable imposition on presidential will. Democratizing administration is a goal that can only be achieved in the ashes of the modern managerial presidency.
Second, developing a constitutional politics rooted in reconstruction will require a painful and more searching struggle with the memory of the New Deal. Many LPE thinkers, both explicitly and tacitly, have adopted the model of a reconstruction presidency – FDR as architect of democratic renewal. But this is a flawed path. For one, as Sam Moyn and Jack Goldsmith point out, FDR’s strongman tendencies were the dark side of the New Deal. Moreover, even Stephen Skowronek, who coined the idea of a reconstruction presidency, has suggested that the conditions that enabled presidencies like FDR’s – including a single party winning five presidential elections in a row – are unlikely to recur. If this is right, then reconstruction presidencies are likely a thing of the past.
Once we face these facts, the path ahead becomes as clear as it is daunting. At the federal level, LPE must contend with two entrenched sites of hierarchical power: juristocracy and the modern managerial presidency. A reconstructionist constitutional politics would not merely lament these structures; it would seek to destroy or transform them.
Few on the Left, I suspect, would oppose judicial rollback. This could be achieved through jurisdiction stripping, court packing, and docket reform. Symbolic measures, like moving the Supreme Court to the basement of the Capitol, are equally important. Confronting the the managerial presidency may prove more controversial. But the modern presidency—empowered through the Executive Office of the President, centralized regulatory review, and a thick apparatus of White House management—was historically contingent. It was built to coordinate state policy, not to embody plebiscitary sovereignty. In an era of the unitary executive, that architecture has become a liability. A presidency capable of wielding this bureaucratic structure to subordinate administration and sideline Congress is structurally incompatible with reconstruction.
And because the judicial system is abetting the unitary executive, the statutory removal provisions that are the fetish of administrative law mavens everywhere are irrelevant. Indeed, countering the presidency requires thinking beyond mechanisms that require either judicial enforcement or internal, Article II self-regulation. When the restorationist movement comes after this administration, their first instinct to reach for law and norms will itself only further our presidentialist slide.
Instead, if industrial policy, administrative democratization, and countervailing power are to succeed, they must be embedded in a settlement that restores legislative primacy and insulates administration from direct presidential domination. Reconstruction requires not only building capacity but redesigning the institutional ecology in which that capacity operates. The institutions that make the president a credible manager of the administrative state — including Rahman’s own prior home, the Office of Information and Regulatory Affairs — must be abolished to make way for new modes of governing authority.
Just as important, we must work to abolish presidentialism in the hearts and minds of the American people. Symbolic representations of presidentialism – for example, the in-person State of the Union Address – should be abandoned. The point here must be to salt the Earth. Just as Vought seeks to discredit the instrumentalities of reconstruction, the Left must make the idea of a managerial presidency a failed idea of the past through institutional warfare.
Towards a Reconstructionist Constitutional Politics
The deconstruction of the juristocracy and the managerial presidency would create the space for legislative reform and institutional experimentation. What should this reform package look like? Legislative power could be reemphasized by abandoning the Senate filibuster and by bolstering Congress’s own institutional capacities. Congress’s standing in the nation could be refurbished by remedying our national legislature’s myriad democratic shortfalls. This includes admitting new states and increasing the number of representatives in the House. Congress could also vindicate its legislative power by adopting measures that would keep legislators from being forced to shamelessly spend all their days on Capitol Hill raising money.
A curbed juristocracy would also afford Congress the power to insulate administration from presidential will. Insulated administration is a prerequisite to safely experimenting with state capacity. If you want to follow LPE’s thoughts on industrial policy without risking authoritarian capture of whatever is created, then you must play the game of constitutional politics first. Until LPE integrates its structural reform agenda with a clear constitutional politics, its ambitious proposals will remain vulnerable to capture. Reconstruction requires not just policy innovation, but institutional re-founding. And that means recovering the lost art of constitutional politics.
