Contesting State Capture

State capture poses a distinctive challenge to democracy in the United States. As well-resourced individuals and interest groups exert ever-increasing influence over public policymaking, the American legal system loses its moorings in majority will and democratic faith. The costs of this process are borne by the poor and working classes. Unlike most public-law scholarship concerned with state capture, this Article surfaces potential remedies in the underutilized tools of state constitutional law. Drawing on state constitutional history and political-economic scholarship, it argues that when confronted with legislation suspected of capture, state courts should abandon rational basis scrutiny in favor of more searching forms of anticapture review. Their authority to do so may be located in restraints on legislative power common to every state constitution. State constitution-makers created these restraints in the nineteenth century in order to empower courts to check their captured legislatures. Still very much good law, they can and should be mobilized to contest state capture today.