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Madhav Khosla & Mark Tushnet, Courts, Constitutionalism, and State Capacity: A Preliminary Inquiry, 70 Am. J. Compar. L. 95 (2022).

Abstract: Modern constitutional theory deals almost exclusively with the mechanisms for controlling the exercise of public power. In particular, the focus of constitutional scholars lies in explaining and justifying how courts can effectively keep the exercise of public power within bounds. But there is little point in worrying about the excesses of government power when the government lacks the capacity to get things done in the first place. In this Article, we examine relations between the courts, constitutionalism, and state capacity other than through limiting state power. Through a series of case studies, we suggest how courts confront the problem of state building, and how the question of state capacity informs constitutional doctrine. Our studies consist of litigation over life-saving medication in Brazil, “engagement” remedies in South Africa, the problem of pretrial detention in India, and the validity of India’s recent biometric identification project. As we show, state capacity is a crucial variable in the development of constitutional doctrine—and while engaging with the issue of state capacity, courts often play a role in facilitating its expansion. The case studies identify a number of mechanisms that courts use to encourage capacity development: providing incentives to enhance capacity, guiding and directing the state to perform specific actions, compensating for weak capacity by absorbing the problem, and endorsing measures that purport to increase capacity. We then offer an expressly idealized model by which courts can negotiate capacity-related concerns. Courts can, in certain instances, respond to the problem of state capacity through weak-form, dialogic, experimentalist forms of review. The precise role that courts can and should play in this regard remains to be fully studied, but focusing on the question of state capacity allows us to better explain contemporary constitutional doctrine in several jurisdictions, and highlights the challenges involved in at once creating and limiting state power.