George Martinez has published an interesting article critiquing plenary power in the Indian law context and other contexts from a philosophical standpoint. Basically, he says that plenary power harms those that wield it. The article is “Race, American Law and the State of Nature,” 112 W. Va. L. Rev. 799 (2010). Unfortunately, it doesn’t seem to be available on SSRN or Bepress. Here’s the abstract:
“This Article advances a new theoretical framework to help explain and understand race and American law. In particular, the Article argues that we can employ a philosophical model to attempt to understand what often occurs when the dominant group deals with persons of color. The Article contends that when the dominant group acts with great power or lack of constraint, it often acts as though it were in what political philosophers have called the state of nature. Thus, the Article argues that there is a tendency for the dominant group to act as though it were in the state of nature when dealing with persons of color. There is a tendency not to feel any constraints or move toward a situation with fewer constraints on the dominant group. The Article contends that there is reason to believe that operating with great power or lack of constraint will have bad effects on the persons wielding such power.”
Turtle Talk 