Dan Epps
Appearances
Divided Argument
Separation-of-Powers Police
Yeah. Did I mention that he was like super sexually depraved?
Divided Argument
Separation-of-Powers Police
Yeah. Which is fine. So a complicated guy. But that's not what we're here to talk about today. We are doing something somewhat unusual.
Divided Argument
Separation-of-Powers Police
So could we just – there's some pieces of this that I think I'm particularly excited to help our listeners understand because I think one of the really important things about this book is the way in which it shows that some of the debates we've been having are maybe in constitutional law are either kind of irrelevant or besides the point or at least – Perhaps that'd be phenomenal.
Divided Argument
Separation-of-Powers Police
And so, you know, question one as part of that is, you know, constitutional law has been obsessed for decades with these normative questions about, you know, how should we interpret the constitution? And yet it hasn't been asking for the most part, and this is one of the central contributions you've made, the kind of positive question, right? You know, about why is this possible at all?
Divided Argument
Separation-of-Powers Police
I mean, why do you think that those questions haven't been asked? Why do you think that, and particularly the ratio has been so focused on this normative question about interpretive theory and stuff like what Will wants to persuade us of about originalism and all the other possible answers to that question?
Divided Argument
Separation-of-Powers Police
For those of you familiar with the format of the show, we're not primarily a guest show, but we do have a guest today, Daryl Levinson, who is the David Boies Professor of Law at NYU School of Law and my former constitutional law professor when he was teaching at Harvard. And we've asked him to come on the show to talk about his recent book of constitutional theory,
Divided Argument
Separation-of-Powers Police
Do you have a response, Will, as someone who continues to be very invested in the kind of normative debate about how to interpret the Constitution?
Divided Argument
Separation-of-Powers Police
One of the most important books of constitutional theory published in quite some time called Law for Leviathan, Constitutional Law, International Law, and the State. So, Daryl, thanks for joining us.
Divided Argument
Separation-of-Powers Police
I think you were the first former professor of mine to be on the podcast, unless I'm forgetting somebody. I think Will kind of thinks of himself as my professor, but I try to push back on that. So this is really exciting and fun for me. for me.
Divided Argument
Separation-of-Powers Police
Also, a great serving court hook for our listeners, you are now a noted Second Amendment expert, because as we mentioned on the show several episodes ago, your article, Collective Sanctions, was relied upon by the court in the Rahimi case. Were you surprised to see that?
Divided Argument
Separation-of-Powers Police
If I can offer a side note, because you put the general law point on the table, I thought that was kind of interesting.
Divided Argument
Separation-of-Powers Police
as a set of ideas that people like Will and Steve have put forward and that I've piggybacked on a little bit, which in some ways maybe shows that originalists like Will are actually a more receptive audience for these kind of insights, to the extent that those arguments are kind of showing that things that we have treated as just kind of ordinary constitutional law now or maybe actually would have been thought of as more like international law.
Divided Argument
Separation-of-Powers Police
Is that a fair description of that kind of move, Will? Yes, this is trapped. And does it suggest a greater receptivity to the move Daryl's book is making?
Divided Argument
Separation-of-Powers Police
Yeah. So two decades later, apparently that article was relevant to figuring out whether domestic abusers can have guns. Yeah. So I thought maybe you might just tell our listeners the general thrust of the book. Obviously, it's a really big and important book, and there's more than can be summarized in a pithy few minutes.
Divided Argument
Separation-of-Powers Police
So can I put another topic on the table to try to continue to flag things that I think are of particular interest to Supreme Court nerds? One of the biggest themes from the book that I find interesting and to shape the way I think is kind of your discussion of power and how that maps on to the structural constitution. And we –
Divided Argument
Separation-of-Powers Police
on this podcast, you know, have read a lot of and talked about a lot of kind of big separation of powers cases. And there's this concern about aggrandizement as the executive branch taking power away from other branches.
Divided Argument
Separation-of-Powers Police
And I think one lesson from your book is that that's kind of a dumb way to think about it because, you know, in terms of figuring out where power actually lies, just the surface level of kind of like looking at how, constitutional decisions allocate power among the branches misses the point. Would you kind of flesh that argument out for our listeners a little bit and we can talk about it?
Divided Argument
Separation-of-Powers Police
But maybe we can just get that out, and then Will and I will engage you in conversation about it. But we think it's a book that I think it would be great for our listeners who are interested in constitutional law, questions like separation of powers, to know about. And it is the kind of book that I think would really change the way people think about some of these things who are not familiar.
Divided Argument
Separation-of-Powers Police
Does that suggest, though, that assumptions about which groups are likely to control institutions is really driving a lot of the push behind different interpretations of separation of powers? I mean, that's one. The cynical explanation for the conservative push on dialing back the administrative state is precisely this.
Divided Argument
Separation-of-Powers Police
The belief that the federal judiciary is likely to be more conservative for the foreseeable future and administrative agencies are going to be more dominated by Democrats and people sympathetic to the Democratic agenda. I mean, does that suggest that that's really kind of at bottom the only real stakes of those kinds of cases?
Divided Argument
Separation-of-Powers Police
So, Will, we have had perhaps an unpredictably long gap, or maybe a predictably long gap since our last episode. It's been more than a month. Some things have happened. We've had some interesting stories about behind-the-scenes stuff at the court. We are not going to get into any of that today. We'll save that for a more regular episode. We've got something cool.
Divided Argument
Separation-of-Powers Police
Can we make any kind of assumptions or none? I mean, so one, you could say having an executive that has all power might be bad. But you could also just say, well, actually, even if that's true on paper, that executive could be totally boxed in by different political interest groups moving behind the scenes, kind of controlling his behavior.
Divided Argument
Separation-of-Powers Police
And you could have a system that has lots of formal separation of powers, but it turns out that all the political interests behind the scenes are actually controlling all the levers of power. Or could we say, well, maybe in some general sense, having more divisions will maybe make certain outcomes less likely, or are you not even willing to go that far?
Divided Argument
Separation-of-Powers Police
Also, Will can respond to that, but also like arrangements that formally look the same at two different times can work really well at one time and very badly at another time, depending on how underlying the societal power divisions change, right?
Divided Argument
Separation-of-Powers Police
Maybe the original structure worked okay in the sense that there was a very close balance of power between slave states and free states, for better or for worse. But then that division doesn't really track what our political divisions are now.
Divided Argument
Separation-of-Powers Police
And so just saying, well, let's stick to exactly as much power as states had 200 years ago, maybe that works quite differently based on how society has changed.
Divided Argument
Separation-of-Powers Police
So I think you might resist answering this question, but what would you think really internalizing these insights? Let's say we send copies of this book to one First Street, so nine copies. Every justice reads it and totally is persuaded. What should that change about how they approach their jobs? Maybe we have to put aside questions about interpretive method.
Divided Argument
Separation-of-Powers Police
Should it lead them to just say these separation of powers cases are dumb and we should just stop worrying about them or something else?
Divided Argument
Separation-of-Powers Police
Yeah, I mean, you could imagine some, you know, justice saying, well, we've been focusing on the wrong questions and separation of power. So I'm going to start doing a kind of power divisions in society analysis. And I'll, you know, vote for separation of powers when I think that this tracks, you know, underlying divisions and power dynamics in society. And I won't otherwise.
Divided Argument
Separation-of-Powers Police
Now, that seems really hard. It seems basically, you know, not at all consistent with what, you know, judges are normally able to do. And I guess that really gets at a related point, which is why are these the kinds of questions that constitutional lawyers and constitutional theorists don't usually ask? It's hard, right?
Divided Argument
Separation-of-Powers Police
It's really easy to look at the document and say, oh, the court's decision gives the president extra power. It's much harder to engage in the process of actually looking at the structure of the government and then saying, okay, now let's actually do the political science work and figure out who are the key decision makers behind the scenes that actually are shaping these institutions.
Divided Argument
Separation-of-Powers Police
I mean, it just feels like something that lawyers are not at all trained to do. And maybe that's why we haven't been asking those questions at all.
Divided Argument
Separation-of-Powers Police
So like a kind of originalist lawyer who teaches at the University of Chicago.
Divided Argument
Separation-of-Powers Police
The point about legal polarization, I think, is actually quite interesting. It's one that I've thought about a lot in connection with debates about Supreme Court reform, which is maybe you could say one reason that there was a certain amount of settlement about the power of the Supreme Court was in part the fact that
Divided Argument
Separation-of-Powers Police
the preferences of the justices did not systematically track the preferences of the key divisions in politics, right? The culture of lawyers led them to have a mix of maybe culturally elite views, but ones that didn't consistently map onto the views of one political party, right? Justice Kennedy and Justice O'Connor and things like that.
Divided Argument
Separation-of-Powers Police
And, you know, it strikes me as one thing that's really putting a lot of pressure on the system now is the way in which Will and his friends have helped create the rise of this highly polarized legal culture where lawyer views track political views. I know, Will, that's not new, but... We didn't start it. And that maybe is...
Divided Argument
Separation-of-Powers Police
Leading to some of the breakdown that we're seeing and maybe, you know, might lead to more of what we're seeing in terms of people, political actors starting to really push back on the court and being willing to say, you know, let's put forward a court packing proposal.
Divided Argument
Separation-of-Powers Police
Let's, you know, I talk to Senate staffs all the time who are putting together all sorts of proposals to radically change the court as an institution in ways that I think would have been totally unthinkable a decade ago.
Divided Argument
Separation-of-Powers Police
And then, of course, we did want to end by asking you how your book informs what we should think about the court standard for granting an injunction pending appeal under the All Writs Act when we're dealing with shadow DACA cases, because I think there's a pretty clear takeaway there, right?
Divided Argument
Separation-of-Powers Police
is saying people shouldn't care about qualified immunity. So you did 50% on that.
Divided Argument
Separation-of-Powers Police
So did Will, over the course of this hour or so, did he move the needle on originalism for you at all? Or has he been unsuccessful? He tried about three or four times.
Divided Argument
Separation-of-Powers Police
I thought just asking Justice Kennedy what he thought was also a pretty good settlement device, but a lot of the rest of the people in the country didn't seem to agree with that.
Divided Argument
Separation-of-Powers Police
always the problem with law. All right. Well, that is a good conversation. Well, we will encourage our listeners to buy the book, Law for Leviathan, Constitutional Law, International Law, and the State from Oxford University Press. I would like to say it is available everywhere books are sold. I think that might not be fully accurate, but it is available online at Amazon and similar sources.
Divided Argument
Separation-of-Powers Police
And it is priced not as a library edition, so it's priced so that people like you and me can buy it. So I strongly encourage everyone to to read it. It will really change the way you think about constitutional law and maybe show that a lot of the things that you thought were important are frankly kind of dumb or epiphenomenal or irrelevant to maybe what really matters in the world. Thank you.
Divided Argument
Separation-of-Powers Police
Thanks very much for listening. If you like the show, please rate and review on the Apple Podcast Store or anywhere else you find your podcasts. And please share the show with anyone else who might be interested in it.
Divided Argument
Separation-of-Powers Police
Your professors, students, friends, coworkers, children, and basically anyone else who is interested in hearing two people talk about boring Supreme Court details for lengthy sessions. Check out our website, dividedargument.com. We have transcripts of the episodes posted.
Divided Argument
Separation-of-Powers Police
fairly soon after the episodes go up stored at divided argument.com for merchandise you can send us an email pod at divided argument.com if you want to give us a hard time about not giving benjamin franklin his due or you can leave us a voicemail 314-649-3790 thanks to the constitutional law institute for sponsoring all of our endeavors thanks to daryl for agreeing to come on the show and please keep listening
Divided Argument
Separation-of-Powers Police
I just did want to get some clarification out before we dive in, which is the reason for our delay is not shame for not giving sufficient credit to Benjamin Franklin on the last episode. I think I may have suggested, you know, you were praising him and we talked about, you know, Thomas Jefferson as an inventor. And we got multiple emails from Ted Frank and Dan Simon about that.
Divided Argument
Separation-of-Powers Police
Well, can I just ask a clarification on that question? I mean, I assume the people you're talking about are people that are skeptical about the idea of constitutional laws and enterprise practice by judges, right? They're not necessarily people that are skeptical of the idea that we have constitution that creates different institutions, right? That creates three branches and so forth.
Divided Argument
Separation-of-Powers Police
Yeah. And Daryl, a question for you. I mean, I. I do think your book maybe has something to say to both in the sense that I take the book as not saying none of these things are possible.
Divided Argument
Separation-of-Powers Police
You're saying that there are kinds of arrangements that are possible and you can take different views about them, but there are kind of accounts by which different groups in society come to agree on constitutional provisions as kind of coordinating rules and so forth, right? Yeah. That's right.
Divided Argument
Separation-of-Powers Police
Ben Franklin's inventions, the full extent of which I was not familiar.
Divided Argument
Separation-of-Powers Police
Lightning rod, bifocals, daylight savings time, the Franklin stove, reaching device, I don't know what that is, some kind of musical instrument popular enough in the late 18th century that Mozart and Beethoven composed for it, improvements to urinary catheters and odometers, arguably the first American political cartoon, swim fins.
Divided Argument
Separation-of-Powers Police
Okay. All right. Well, you didn't tell me you didn't list those things.