How do republicanism and regulation coexist? How does the politics of administrative constitutionalism constrain and enable the action of regulators in their governance of economic, political, and scientific realms? How can an adaptive republic strike a set of appropriate, lawful, representative, and efficient balances among the contending interests in regulatory policy? These are what I take to be the central questions raised by John Ferejohn in his perceptive review of Reputation and Power. His answer, as applied to US pharmaceutical regulation, is not intended to be definitive but aims, rather, to pose a set of hypotheses and questions.

Ferejohn interprets the corpus of law and procedures that characterize modern pharmaceutical regulation as a kind of “superstatute.” I agree with his view both empirically and normatively. The complex of practices, regulations, and statutes that have arisen in this area have acquired a kind of legitimacy that goes beyond the statutory and constitutional authorization that our Large-C Constitution bestows upon them. And, as Ferejohn's shrewd reading suggests, the development of pharmaceutical regulation very much followed an administrative constitutionalism model, whereby ideas that were first hatched experimentally in agency activities were incorporated into broader procedures and regulations and then codified in general statute (Reputation and Power, Chapters 3 through 6).

I would add that organizational reputations will often play a critical role in the process by which a public (a “society”) comes to reliably and thoroughly support a superstatute. The beliefs by which voters, politicians, and other organized voices in a republic express confidence in policy regimes are often deeply symbolic, not least because policy knowledge is often summary and incorrect, but also because the arguments for and against these superstatutes—arguments that compose the deliberation so critical to the theory of William Eskridge and Ferejohn and to republican politics in general—take exactly these symbolic forms. Put differently, to the extent that Eskridge and Ferejohn further develop their theory of superstatutes, or to the extent that the theory is further elaborated and applied in the legal and political science academies, the symbolic and legitimating role of organizational reputations will need to be examined squarely. When Ferejohn observes of US pharmaceutical regulation that “[e]very significant actor in the FDA ecology—political leaders, journalists, the scientific community—has bought into [the agency's] reputations,” he is implicitly conjuring a state of affairs that could, in theory, apply to civil rights, monetary policy, national security, and a range of other policy areas.

If I have a disagreement with Ferejohn's review, it lies in his reading of modern capture politics. I certainly agree that a strategic pharmaceutical industry would want to design a system with many of the features displayed by the status quo. I disagree that this correspondence gives us (as social scientists) reason to infer capture at work, because the current system is also not far off from other plausible rationales (for a mathematical statement of this argument, see my essay “Protection without Capture,” American Political Science Review 98, no. 4 [2004]: 613–31). Put differently, if a public-interested majority wanted to design a system to promote experimentation, or to enhance safety of and knowledge about drugs before their marketing, one would also opt for many elements of the current system. If there is a form of capture at work in modern pharmaceutical regulation, I think it involves different mechanisms, what David Moss and I have called a combination of “weak capture,” “deregulatory capture,” and “cultural capture” in our forthcoming book on the subject (Preventing Regulatory Capture: Special Interest Influence and How To Limit It).

Ferejohn rightly detects the very important role to be played by the Large-C Constitution in protecting minority rights. Organizational reputations and republican politics can conspire to limit minority representation in the realm of regulation, and the “equal protection” clause may be necessary for addressing these ills. He remarks that if the FDA were to be “recast through the enactment of a statutory or constitutional right to health care, and if that right were to be regulated by some notion of equal protection, these issues could be addressed more systematically.” This is a striking point, but one wonders about the multiplication of rights to commodifiable goods that can create serious constraints for other operations of the republic, including the protection of others' rights themselves.

My concern echoes the point made by Michael Sandel in Democracy's Discontent (1996), namely, that in modern liberal discourse, rights become “trump cards” that end productive argument and that crowd out other normative considerations. Is the “right to health care” to be considered an “as if” right that flows from statute, a commitment of the body politic that, to the extent possible, we as citizens would like to see access to health services and goods universally and equally distributed? If so, then I am fully in accord. But if the right is judged in the Large-C constitutional sense of a judiciable claim upon resources that, by its very status as right, trumps all others, then one might worry. What happens when the right to health care becomes a right to market cocaine and its derivatives for medicinal purposes, or the right to expensive medical services whose widespread provision would bankrupt the state?

This point extends beyond the case of pharmaceutical regulation. One wonders whether the flexibility that Eskridge and Ferejohn rightly see in superstatutes should be applied not only to the evolution of rights (as in their canonical cases of Civil Rights and Social Security) but also to the evolution of the properly constrained police powers of the republic. To channel Sandel again, the proliferation of rights as judiciable trump cards may multiply special and minority interests to the detriment of the public good and the general interest. There are things that courts do well and that they do not do well; guaranteeing delivery of goods in a particular setting may create administrative and technocratic burdens that undermine efficiency, representation, and liberty itself.