Incapacitating the State

Abstract

The modern state is an extremely powerful technology — for better and for worse. States can provide order and security, markets and prosperity, education and health. They can also organize mass warfare and totalitarian oppression. This essay, delivered as the Cutler Lecture at William & Mary, contrasts two (or three) approaches to managing state power. One is to control the state, directing its formidable capacities toward good uses and away from bad. Control can be accomplished politically, for example through international relations and diplomacy or domestic democracy. It can also be accomplished legally, for example through international law and domestic constitutional law. Where political and legal mechanisms of control are inadequate, however, and the downside risks of state power loom large, an alternative approach is available. Political actors can attempt to incapacitate the state by reducing state power or preventing it from being built in the first place. The opposite of state-building, incapacitation (or state unbuilding) is an important strategy of both international and domestic statecraft. It is also an important strategy of constitutional design that should be considered alongside rights and representation, with implications for how we think about federalism, presidential power, and the separation of powers.