K. Sabeel Rahman & Jocelyn Simonson –
As the COVID19 pandemic and economic crises continue to ravage the country, it is increasingly clear that the virus is not just a public health challenge: it is also exposing deep systemic failures of governance, and disparities of political power. Black and brown Americans are the most likely to die from this virus, a reflection of the ways in which our economy and society concentrate risk, pollution, and disinvestment in racialized ways that literally cost lives. We can see the devastating effects of the status quo in the lives of “essential workers” women and Black and brown workers in particular, who were already in positions of terrifying economic insecurity and now find themselves on the frontlines of the pandemic response. These socioeconomic inequities are the product of underlying structures born from law and public policy that shape our economy and society. A big reason why these policies systemically disadvantage communities of color and working class people in general is that the communities most affected by them rarely have decisive, influential power over these underlying systems and the laws and policies that create them.
The dialectical relationship between structural inequalities and political power compounds this difficulty: multiple layers of democratic and structural exclusion reinforce each other, reproducing unequal, racialized systems of justice and of governance. For example, when people directly affected by the criminal legal system attempt to intervene in policy debates over criminal law and procedure, they find their calls muted because they are members of a population that has been systematically disenfranchised by the very systems of criminal law that they aim to reform. The antidemocratic nature of our legal systems reinforce structural inequality; the result is that increasing community participation does not, on its own, truly tackle these deeply embedded structural problems.
Recognizing this difficulty, social movements made up of people who tend to be excluded from governing power are rethinking the notion of community participation itself. In our recently posted paper, The Institutional Design of Community Control, forthcoming in the California Law Review next month, we lift up social movement visions of local governance and use them to push toward bigger questions and concrete lessons for how local governance in particular, and institutional design more broadly, can shift power. As these social movement actors diagnose, contesting and dismantling structural inequities require a dramatic and fundamental change in how we make major policy decisions. Changing the balance of power in these decisions is in turn a question of institutional design: how we build and operate the institutions of governance, particularly in administrative institutions often overlooked by electoral politics.