Making and Unmaking Citizens: Law and the Shaping of Civic Capacity

American democracy is more fragile today than in recent memory. As evidence of stubborn imbalances in political influence grow, so too does public skepticism concerning the relative benefits of our democratic institutions. Scholars have taken note, and two dominant camps have emerged to offer proposals for restoring democratic accountability and responsiveness. The first, like the public, identifies the flood of money into electoral politics as the primary source of our troubles, whereas the second points to political parties as the root of the crisis. More recently, however, a nascent third approach has emerged. Looking beyond the usual suspects—money in politics or the state of our political parties—its focus is on legal reforms that would permit everyday Americans to exercise political power through organizations capable of providing a counterweight to the political influence of wealth.

This Article seeks to further develop the efforts of this third approach. It argues that a more nuanced understanding of the recursive relationship between governance and civil society—one that appreciates the ways that public policy, as instantiated in legislation, inevitably influences the trajectory of civil society— permits us to envision a broader conception of law’s role in democratic reform. This broader conception is particularly critical given that several traditional routes have been effectively foreclosed by the Supreme Court. Toward that end, this Article identifies opportunities for law and politics—nudged perhaps by good governance philanthropists and technological advances—to make considerable strides toward rebuilding a participatory civil society capable of demanding the recognition of elected officials.