Daryl Levinson
Appearances
Divided Argument
Separation-of-Powers Police
I don't know whether we're going to be in the majority or the minority, but I'm willing to respect the results of this election because I think I'm going to win the next election. And in any event, it's better than fighting a war or a civil war about who's going to control the state.
Divided Argument
Separation-of-Powers Police
So that's an approach, a rational approach, but not focused on immediate self-interest, but on longer term self-interest. And then there are approaches that aren't rationalist in that way. In international relations, we call this constructivism approach.
Divided Argument
Separation-of-Powers Police
The idea that law actually shapes people's interests, self-image, preferences, and there is some pull towards legal compliance that goes beyond rational calculations. Maybe there's some inherent desire to comply with law. or something else. And in constitutional law, ideas like that show up in arguments about legitimation. Is the Supreme Court a legitimate institution?
Divided Argument
Separation-of-Powers Police
Why do people who lose Supreme Court cases nonetheless support the Supreme Court and provide a reservoir of diffuse support for the justices? And what determines whether people are willing to afford the court that kind of legitimacy? Is it the appearance that the court is doing some kind of law instead of politics? Is it the robes? Is it something else?
Divided Argument
Separation-of-Powers Police
So those are the basic tracks that I think align in international law and constitutional law that are probably our best hope of explaining why legal compliance works to the extent it does.
Divided Argument
Separation-of-Powers Police
I thought before I heard Will today that the reason was because everyone in constitutional law took for granted that this was a solid legal structure that worked like contract law worked. So why do scholars of contract law not spend all their time worrying about whether contracts will be enforced by courts or whether contracts
Divided Argument
Separation-of-Powers Police
People will acknowledge contracts as a legal form and instead talk about the actual law of contracts or contract design. It's because they take for granted that the system is basically going to work and courts are going to enforce contracts to the best of their abilities. And people are going to use contracts to order their arrangements.
Divided Argument
Separation-of-Powers Police
And the law is going to work kind of like the law works with some ambiguity, but with some things that everyone more or less agrees on. And I thought that's how people thought about constitutional law as well. So they didn't have to worry about the big structural things and was the system going to hold up or fail or why would it fail and could just get on to how the system works internally.
Divided Argument
Separation-of-Powers Police
And to the extent that there were constitutionalists who were concerned about the kinds of issues that I take up in the book, there were mostly people working in political science departments who were taking an external perspective on the operation of the legal system rather than an internal perspective.
Divided Argument
Separation-of-Powers Police
And I think that it's interesting that that division exists in constitutional law, though perhaps not surprising since until quite recently, the same – Institutional division of labor existed between scholars of international relations and political science departments and elsewhere and international lawyers who also just took for granted that international law worked. International law was law.
Divided Argument
Separation-of-Powers Police
What mattered was figuring out what the law is or what the law normatively should be. not big picture questions about the operation of the system.
Divided Argument
Separation-of-Powers Police
And it was only quite recently in the last 25 years or so that there was more of a merger of those two methodological approaches and more international lawyers started asking questions about the relationship between what the law is and what the law can be given the structural arrangements that limit what international law can accomplish. and how the institutions and the substantive law interact.
Divided Argument
Separation-of-Powers Police
And I think a movement like that in constitutional law and constitutional theory might be an interesting form of progress.
Divided Argument
Separation-of-Powers Police
I think the Supreme Court is super important and I agree with you descriptively that a lot of the faith in constitutional law is real law and the corresponding willingness to get on to deciding the substantive issues that the court is going to decide in a better way comes from a system that is confident in the centrality of judicial decision-making and a kind of judicial supremacy.
Divided Argument
Separation-of-Powers Police
And international law does not have the equivalent. You know, there's no general world court that everyone agrees can decide the most important issues of international law and have states follow what the court says. And if there were, I think international law would be a lot more like constitutional law in how it's perceived and what law professors in the field do.
Divided Argument
Separation-of-Powers Police
The other way around, popular constitutionalists describe a system of constitutional law in which the courts are decentered, less powerful, and where multiple actors and groups can interpret the constitution for themselves and somehow fight with each other over what the constitution is going to mean. And it's not clear how these legal disagreements get resolved.
Divided Argument
Separation-of-Powers Police
And the whole system all of a sudden looks a lot more like international law. So I think the court is really important. And the question is, how much can the court accomplish? One question is, how is the court accomplishing what it's accomplishing now? Or what is it accomplishing now? Parchment barriers were not going to constrain the powerful.
Divided Argument
Separation-of-Powers Police
I don't think gavel barriers are going to constrain the powerful much better. I mean, you can bonk someone in the head with a gavel, but... If you have the 101st Airborne, it's not going to stop a president who says, I don't care what the Supreme Court says. I'm just going to do what's best for the country. And of course, we have had presidents that have said things like that from time to time.
Divided Argument
Separation-of-Powers Police
And it's kind of interesting to ask why presidents don't say that kind of thing more often, not to mention other groups that have resisted or mobilized against the court. And Here, again, I think there are the same kinds of explanations or theories about why the court has whatever power it has. There's a realist view of the Supreme Court, which is that the court has power itself.
Divided Argument
Separation-of-Powers Police
In our system of constitutional law, because the court is very careful to exercise that power only in ways that the politically powerful are willing to accept. So the court is essentially following majoritarian opinion or the court is very careful not to contradict.
Divided Argument
Separation-of-Powers Police
The strong preferences of the political branches, as it did during the New Deal and got in trouble and then learned its lesson, it's not going to do it again.
Divided Argument
Separation-of-Powers Police
And so what the Supreme Court does is help powerful constituencies or the national political branches effectuate their agendas, maybe brings outlier states into line, maybe brings other groups into line, consolidates coalitions politically, but doesn't actually stand in the way of the powerful constituencies. in a very meaningful sense. That's the sort of realist view.
Divided Argument
Separation-of-Powers Police
And then there are rationalist game theoretical kinds of views about how it's good for lots of groups if the court protects rights or sets limits on what politics can do, because sometimes we're winners and sometimes we're losers. And in the long run, it's better
Divided Argument
Separation-of-Powers Police
to have these constraints for everyone or coordinating us on some shared system of government that allows us to get stuff done that we all want to get done and that we prefer to fighting wars with each other. And then there are these legitimation ideas that we somehow get entranced by law and are willing to go along with people who we think are wise law sayers and stuff like that.
Divided Argument
Separation-of-Powers Police
Yeah. So that your evil version of constructivism could be, yeah. So of course you're right. Like the, the, the question of why does the president pay attention to the Supreme court presupposes that there's a president who is elected and empowered the way the constitution describes and that there's a Supreme court and, and set up according to article three. And why do we have those things
Divided Argument
Separation-of-Powers Police
There's a regress and there are turtles. You've got to explain, ultimately, why anyone is willing to go along with any of these constitutional rules or arrangements. If you're building the thing from the state of nature in a Hobbesian way, you've got to have some reason for that. I think the reasons are the standard kinds of reasons.
Divided Argument
Separation-of-Powers Police
You've got to tell a sort of ground-up story of either why it's in people's interest or
Divided Argument
Separation-of-Powers Police
in some longer or broader term or shorter term and immediate way to cooperate in these schemes of law, or you've got to have a story about how a lot of people are being duped by the people who have managed to get their interests furthered by creating schemes and convincing people that they should want to go along because it's really great to comply with the law or whatever.
Divided Argument
Separation-of-Powers Police
It could have in a path-dependent way, right? So the coordination game story is we could coordinate around anything. And it just so happens that instead of coordinating around the Declaration of Independence or the Magna Carta or... what I wrote on a cocktail napkin when I was drunk and designing my scheme for what the country should be like.
Divided Argument
Separation-of-Powers Police
We coordinated around this text called the Constitution. And the text that we coordinated around wasn't even what people at the time thought the Constitution was. Historians like Jonathan Gnapp teach us Instead, as some of your own work and Dan's work has elaborated, it was some conception of fundamental law or general law.
Divided Argument
Separation-of-Powers Police
I didn't actually see it. But I heard about it on your podcast, and that was really exciting news to me. I wouldn't have guessed at the time I wrote the article that it would ever be used for that purpose. But once we unleash scholarship into the world, it does its own thing.
Divided Argument
Separation-of-Powers Police
that the constitutional text may have been a part of or may have alluded to, but wasn't the thing itself. But it doesn't matter because once we coordinate around something, all that matters is that we've coordinated around it. And it's really hard to re-coordinate in a large and fractious society, as you say. So you could think of this as a story of great success.
Divided Argument
Separation-of-Powers Police
Like we somehow got lucky and managed to coordinate to an adequate extent around at least some basic features of the Constitution and the constitutional system of government. And that's what's helped us preserve stability for this long period of time in American history. You could think of it as a tragic or absurd story where we're stuck coordinating around a set of
Divided Argument
Separation-of-Powers Police
things written in a document that has nothing to do with the problems that we face today or the best way to run our society today. But everyone's so afraid of giving up that coordination and going to war with each other that we have to just keep doing it instead of having a new constitutional convention or trying to re-coordinate around something else.
Divided Argument
Separation-of-Powers Police
Sure. So I think the basic way that constitutionalists think about balancing power and checks and balances is doubly dumb, as you put it. It's dumb in that it's a poor description of how branches of government and government office holders and their constituents actually behave.
Divided Argument
Separation-of-Powers Police
And as a normative ideal, it's hard to understand why anyone actually cares about balancing power at the level of branches and government or between the states and the national government. So on the behavioral side, uh,
Divided Argument
Separation-of-Powers Police
in international relations, it's at least easy to understand why states might do the thing that realist balance of powers theorists think that states are doing, which is competing with one another for power, because that's the way that states ensure their survival. And everyone in the state has at least some interest in not losing wars and being invaded or and being killed.
Divided Argument
Separation-of-Powers Police
So it's important for the state to either have enough of its own power to enter into alliances with other states to balance the power of states that serve as a threat. When we switch the theory to what happens between Congress and the president, none of the same things are true.
Divided Argument
Separation-of-Powers Police
So why is it that Congress and the president will have some natural incentive to treat each other as enemies and to worry about which one of them becomes more powerful? Is it because the president's going to invade Congress?
Divided Argument
Separation-of-Powers Police
I mean, I know January 6th, but generally not the thing that constitutionalists are worried about when they're thinking about the balance of power between the branches of government. And it's not true that Congress and the president are enemies. in the way that the United States and the Soviet Union during the Cold War were enemies, they may be allies.
Divided Argument
Separation-of-Powers Police
And a lot of that may depend on who the president is and which political party has the majority in Congress, in the House, and in the Senate. And when it's the same political party, or at least the same wing of the same political party,
Divided Argument
Separation-of-Powers Police
then the president and one or both chambers of Congress are going to act as allies and they're going to cooperate or collude and not compete with one another for power and regard each other as mutual threats.
Divided Argument
Separation-of-Powers Police
So the basic Madisonian constitutional dynamic that's now written into 8,000 Supreme Court opinions and we're all taught to believe of ambition, counteracting ambition and the way we're going to prevent one branch from becoming dangerously aggrandized is that the other branches are naturally going to have an incentive to push back and guard their own power.
Divided Argument
Separation-of-Powers Police
Jealousy just isn't a realistic description of political behavior in our system. And it's not clear why anyone ever thought that would be a realistic description of political behavior. So that's the behavioral part. The normative part is, why do constitutionalists, why does constitutional law, why does the Supreme Court care about what the balance of power is between Congress and the president?
Divided Argument
Separation-of-Powers Police
It matters what the balance of power is between the United States and the Soviet Union during the Cold War, between the United States and China now, because that's going to affect the prospects for peace in the world and mutual deterrence and things that are obviously important. Why does it matter whether Congress is more powerful than the president or the other way around?
Divided Argument
Separation-of-Powers Police
A counter proposal would be what matters is how powerful different groups and interests are in society, which determines who's getting their way politically, whether they're getting their way politically or through Congress or through the president or through some combination of both. So we want to protect countries from being invaded and destroyed.
Divided Argument
Separation-of-Powers Police
We want to protect groups from being dominated and exploited. But protecting groups has nothing to do with empowering Congress or the president, because we don't know whether it's going to be Congress or the president that represents these groups, if either.
Divided Argument
Separation-of-Powers Police
That's what it suggests to me. So no one is surprised when people's views on whether the president should have more power or the courts or Congress just simply align with whichever party controls the institution at any given time.
Divided Argument
Separation-of-Powers Police
So there's no mystery about why all liberals have it in for the Supreme Court at the moment, whereas liberals used to love the Supreme Court when it was the Warren Court. Like no one's missing what's going on there.
Divided Argument
Separation-of-Powers Police
The interesting and kind of puzzling thing is that people seem to have these more enduring views about whether presidential power is good or presidential power is bad or whether they're pro-Congress or anti-Congress or pro-court or not pro-court.
Divided Argument
Separation-of-Powers Police
And they seem to have those views not just for sort of proceduralist reasons or good government kinds of reasons, but because they really believe that they'll get more of what they want politically by empowering some institutions and not others. And I'm not sure where those ideas are coming from. you know, what is it? Is there some consistent political slant that the administrative state has?
Divided Argument
Separation-of-Powers Police
Okay, well, I am happy to talk about the book and honored to be here. I hope your listeners aren't expecting another contribution that will show up in one of Justice Thomas's opinions anytime soon that we can hope. It's probably jarring for your listeners to hear me. It's like tuning into a podcast.
Divided Argument
Separation-of-Powers Police
So if you empower agencies, you'll consistently get somewhat more liberal results. Well, you know, possibly like if it's true in some long-term way that people who select for jobs in bureaucracy or in some agencies like the EPA are kind of committed liberals or environmentalists, then you might have some reason to think it's at least a somewhat long-term
Divided Argument
Separation-of-Powers Police
Phenomenon that if you give the EPA more autonomy or power, you'll get more liberal or pro-environmental results. Maybe there are other structural things like that. Maybe there's a reason why presidents want to go to war more often than Congress does. But it's hard to think of really long term differences among the branches.
Divided Argument
Separation-of-Powers Police
You've probably seen a paper by David Posen and Jonathan Gould that's called Structural Biases, which tries to identify some long term differences. Democrat versus Republican kinds of differences between the institutions of government that might lead those on both sides of the partisan divide to kind of have their preferences one way or the other. And
Divided Argument
Separation-of-Powers Police
You know, some of those ideas are medium term ideas about political geography and which groups are going to be more represented in the House versus the Senate or the presidency. And some of them are ideas about, you know, liberals like more government.
Divided Argument
Separation-of-Powers Police
And so if you add if you make government harder by not allowing unilateral executive action at a time when Congress is dysfunctional and gridlocked, then that's going to be anti-regulatory. And so that's going to generate political divides.
Divided Argument
Separation-of-Powers Police
But I think these predictions about structure and their relationship to the kinds of substantive outcomes that people care about in a partisan way are just really attenuated and hard to predict in anything but the very short term.
Divided Argument
Separation-of-Powers Police
Having more divisions will make it harder for government to do things. If there are more veto points that are at least potentially occupiable by people, officials with different interests, then it'll make it harder for government to act. And that will mean that it will be harder to change the status quo. Now, the status quo might be liberal or it might be conservative.
Divided Argument
Separation-of-Powers Police
And the direction of change might be liberal and it might be conservative. But here we're operating on a level of abstraction above left versus right kinds of politics. It's like, do we have libertarian inclinations towards government doing less? even understanding that government doing less preserves the status quo that was created by government having already done quite a lot?
Divided Argument
Separation-of-Powers Police
about baseball and waiting to hear about which teams are going to make the playoffs and what record Otani is breaking this week. And instead there's someone talking in this weird way about how baseball is possible. And that may not be what people want to hear about, but that is kind of what the book is about, how constitutional law is possible.
Divided Argument
Separation-of-Powers Police
Or do we have small p progressive inclinations toward government doing stuff, which is not the fighting ground typically of Republicans versus Democrats?
Divided Argument
Separation-of-Powers Police
Yeah, what would be best about it? So it would be best in that it would remove one dimension of political contestation, which is political contestation over the powers of the branches and perhaps changing them in directions that would be advantageous, at least in the short term, for one side or the other.
Divided Argument
Separation-of-Powers Police
It would be disadvantageous to freeze the structure of government in place that we had at the founding or that we have now because the structure of government adapts sometimes in useful and functional ways to changes in the world.
Divided Argument
Separation-of-Powers Police
In one view of the rise and rise of the administrative state, the rise was driven by broad-based political demands for effective governance that could only be provided with more expertise and more ability to act quickly and to revise than could be generated by Congress and then maybe especially Congress in a polarized era. And that's what people still believe about the administrative state.
Divided Argument
Separation-of-Powers Police
Like, it's a functional adaptation. And the same with, you know, broad shifts in power to the national government from the states and from localities as a result of externalities and the needs for coordination with economic integration. And a greater global role that has shifted power to the presidency. So you give up a lot of functional adaptation in exchange for less to fight about.
Divided Argument
Separation-of-Powers Police
So the broad theoretical problem is how do we make states the subject of law and When we think about law, what we're paradigmatically thinking about is the kind of law that's made and enforced by the state or by governments for people. But making the state itself subject to law is a very different kind of enterprise because there's no super state to make and enforce the law.
Divided Argument
Separation-of-Powers Police
Yeah, that all sounds right to me, but except the last line. It's not silly to care about the balance of powers, but why are we caring? We've got different goals here. The less you allow people to change...
Divided Argument
Separation-of-Powers Police
the structure of government or rights or anything else that's constitutional, the more immediate stability you have in the sense of lack of political contestation over those things, but you may have more long-term instability.
Divided Argument
Separation-of-Powers Police
Because you may get like the Civil War and other things that happen that are bad when the constitutional system of government falls out of alignment with either underlying patterns of political power or more widespread general consensus over the direction the country ought to be going that is being impeded by a frozen in place constitutional system.
Divided Argument
Separation-of-Powers Police
That seems right. Is it a problem? Well, it's a problem compared to a regime of complete constitutional settlement where we all agree that the right rule of change is Ackerman or the Supreme Court or Article V, right? But it doesn't seem to be enough of a problem of unsettlement that it seriously destabilized our constitutional system of government, at least for a period of a number of decades.
Divided Argument
Separation-of-Powers Police
A lot of the book shouldn't be of any interest whatsoever to Supreme Court justices or people who are interested in how Supreme Court justices are deciding cases. There's nothing that the Supreme Court justices can do about the fact that we need big picture coordination on a structure of government and to sustain that is hard.
Divided Argument
Separation-of-Powers Police
And also the state is just a very different kind of legal subject than an ordinary person is. So that's the basic theoretical challenge of the book. And the way the book proceeds is to start with international law, which is a kind of weird body of law that's been grappling with its own weirdness for centuries.
Divided Argument
Separation-of-Powers Police
And there are lots of theoretical interesting things going on behind the scenes that either make the system work or make the system don't work. The value to people who are actually doing the thing of constitutional law is that there are some insights that might shape how the court would actually decide cases or areas of doctrine or jurisprudence. There are some things in the book.
Divided Argument
Separation-of-Powers Police
So I agree that separation of powers and maybe federalism, too, are areas in which the court is doing nothing of functional value. Now, taking a step back, I'm not sure if the justices ought to care whether they're doing anything of functional value or morally making the country better or worse. That depends on what your theory of constitutional decision-making is by courts and others.
Divided Argument
Separation-of-Powers Police
And if you're purely a Bodian positivist, then I think you don't want the justices to pay attention to things like that. But to the extent that the functional and moral consequences of constitutional law might matter in some way,
Divided Argument
Separation-of-Powers Police
If you believe that as a justice, then I think you would want to rethink your premises of the Madisonian structure of jurisprudence in structural constitutional law, separation of powers, administrative state kinds of cases and federalism cases.
Divided Argument
Separation-of-Powers Police
I think you could rethink your approach to rights too, as one of the arguments in the book is that constitutional rights and the adjudication of constitutional rights and the structure of remedies that we've created for constitutional rights generally aren't making anyone better off morally or materially and might in fact be an impediment to justice.
Divided Argument
Separation-of-Powers Police
So it might be good to have a different conception of rights. And there is sort of modest proposal in the book about how we might think of rights as similar to votes or similar to political power in that what the purpose of rights could be is allocating power to groups as a substitute for political power along John Hart Ely process lines, but maybe in a more ambitious kind of way.
Divided Argument
Separation-of-Powers Police
So there are big picture jurisprudential directions that the book suggests that I would be happy if Justice Thomas took me up on.
Divided Argument
Separation-of-Powers Police
Maybe constitutional lawyers have this view more than other kinds. So, look, courts like built antitrust law. Everyone thinks antitrust law is functional and instrumental and can disagree somewhat about what the goals are. Is it efficiency or is it something more complex? Maybe it's balance of power. But courts have taken on that task and have built a structure of antitrust law.
Divided Argument
Separation-of-Powers Police
And the strategy of the book is to try to show that constitutional law is just as weird and weird in basically the same ways as international law is. But constitutionalists have spent much less time self-consciously reconciling themselves to their weirdness.
Divided Argument
Separation-of-Powers Police
And instead of just continuing to read the Sherman Act and focus on what the words mean, they've thought more broadly about what the goals of antitrust should be and how it should work as markets change. So is that unimaginable for constitutional law?
Divided Argument
Separation-of-Powers Police
This seems promising. So if 19th century general lawyers in the field of antitrust could do it, why couldn't constitutional lawyers today?
Divided Argument
Separation-of-Powers Police
Yeah, it's like the whole constitutional structure. The thing that insulates constitutional law and the structure of government from just dissolving into partisan contestation overnight is that a lot of it doesn't have clear partisan stakes. They're not predictable.
Divided Argument
Separation-of-Powers Police
And if they're predictable in the short term, the short term is short enough and the time horizons of the relevant political actors is long enough that they know that they're behind something of a veil of ignorance as to how their political positions are going to be further hindered by these institutional and legal arrangements. And that is true of a lot of parts of the structure of government.
Divided Argument
Separation-of-Powers Police
It's true of things that now have taken on a partisan valence but hadn't for a long time, like the Electoral College, which didn't have a clear partisan valence at a time when there wasn't such a correlation between rural voters and Republican voters, representation in the Senate.
Divided Argument
Separation-of-Powers Police
but now do have a clear partisan kind of tilt, but lots of parts of the structural structure of government don't like, you know, you don't see Democrats and Republicans argue about whether we should switch to being a parliamentary system instead of a presidential system. Cause no one has any idea whether that would be good for them or bad for their opponents.
Divided Argument
Separation-of-Powers Police
And so those parts of the constitutional structure just get left alone and they're treated as sort of neutral coordination things instead of, uh, partisan inflected things to fight about. And the Supreme Court at some points has been more of a kind of neutral coordination thing, but now clearly is not.
Divided Argument
Separation-of-Powers Police
which i don't think anyone should care about will cares about that will cares about that as much as anybody i know that's why that's why i came up with it i was trying to think something that either you or will would actually care about that i could say something about but it turns out that the only thing i could come up with is qualified immunity and the only thing that i can say about it is that he shouldn't care about it and i actually have my one new york times op-ed
Divided Argument
Separation-of-Powers Police
Okay, we're running out of things to fight about. Here's something else that I can't fight with you guys about. I actually love the turn to general law and fundamental law for a number of reasons. But one is that that really is a vindication of the basic point of the book, that international law and constitutional law are not really very different. They're just two parts of one bigger thing.
Divided Argument
Separation-of-Powers Police
And of course, that's an idea that goes back to Hobbes and Baudin and Grotius and but also goes to both of your work and the work Will's done with Steve Sachs and Judd Campbell, showing that American law at the time of the founding and maybe to some extent into the 19th century didn't draw such a sharp line between constitutional law and the law of nations, among other bodies of law.
Divided Argument
Separation-of-Powers Police
They were amalgamated together as part of this brooding omnipresence of fundamental or general law. And it's kind of an interesting question of intellectual history, like how the two got pried apart so decisively in American legal thought, which isn't something that's happened everywhere.
Divided Argument
Separation-of-Powers Police
You know, British legal theorists have continued to develop this sort of overarching conception of public law, scholars like Martin Laughlin.
Divided Argument
Separation-of-Powers Police
So the straight person for the book is your second type of colleague who takes it all really at face value. I've run into fewer law professor types who are that skeptical about constitutional law. You're describing people who have the same attitude about constitutional law that lots of people do have about international law, that it's not really law and it's just power politics by other means.
Divided Argument
Separation-of-Powers Police
have written amazing books about this thing that doesn't exist in the American legal consciousness, really, but which seems more natural in a constitutional culture that's not so strongly fixated on maybe some combination of textual interpretation, writtenness, and judicial review.
Divided Argument
Separation-of-Powers Police
Completely agree. So plugging Marco Basile's work, he has the fascinating and I think to some extent plausible suggestion that the split had a lot to do with the rise of judicial supremacy and the centrality of courts and constitutional interpretation in the late 19th century. while courts were more hands-off with regard to international law and weren't as strong a positivizing force.
Divided Argument
Separation-of-Powers Police
So I think, has he moved the needle? I've always agreed with Will that originalism, the best case for originalism, has to do with constitutional settlement. And it's unfortunate that originalism is now requiring all these different methodologies of interpretation and including vast, sweeping knowledge of general law and what that thing is, as well as history and tradition and everything else.
Divided Argument
Separation-of-Powers Police
But if we were back 10 years ago when originalism was more simple-minded and it was just a question of reading the text and looking up what the words meant in the dictionary, that's a pretty good settlement device for what settlement is worth. But I'm afraid that Will may be on a path to undermining the primary benefit he identifies with originalism.
Divided Argument
Separation-of-Powers Police
And they're basically realists. And I didn't know there were so many constitutional realists out there or at Chicago. But right. they too are a kind of target of the book because what the book tries to show is that contrary to that skeptical realism, which originated with Hobbes, who is one of the characters of the book, I guess, we do have constitutional law and international law.
Divided Argument
Separation-of-Powers Police
And it's not true that they don't exist. It's just true that they're different. different from our sort of paradigm case of law, but similar to each other. And they've confronted a common set of problems that have led people over the centuries to be skeptical of how they're going to work themselves out.
Divided Argument
Separation-of-Powers Police
But they have managed to work themselves out, at least to a considerable extent, and in many of the same kinds of ways.
Divided Argument
Separation-of-Powers Police
So the point of the book is that constitutional law and international law wherever you put them on the scale of real or fake, are kind of solving the same set of instrumental and moral problems in a similar set of ways. And those ways are different than the ways that contract law solves the same set of instrumental and moral problems.
Divided Argument
Separation-of-Powers Police
But they're not necessarily worse in some deep jurisprudential sense that makes this type of law fake and contract law real. I don't know if there are people at Chicago who have the view that contract law also is fake because it's just politics all the way down. And Morty Horowitz taught us this is where strict liability comes from.
Divided Argument
Separation-of-Powers Police
And yeah, there are courts, but why does anyone pay attention to the courts anyhow? That's just power standing behind the judges. And whose power is it? Probably corporations or something. Do they think that way?
Divided Argument
Separation-of-Powers Police
Yeah, I think constitutional law is like that too, right? Like this is Dan's point. Like we do have a Congress with a House and a Senate and two senators per state and a president who's elected more or less like the constitutional text says and all the other stuff. And it seems like people are kind of getting in their own cars. And the more interesting question might be why.
Divided Argument
Separation-of-Powers Police
Right. So I'm wary of talking about guns for fear of ending up in another Supreme Court opinion. But that's right. Like one kind of obvious thing that international and constitutional law have in common is that they raise the question of why people with guns are willing to obey people without guns or why people with more guns are willing to obey people with fewer guns.
Divided Argument
Separation-of-Powers Police
And this is something that internationalists do worry about. And the realists say they don't, and it's just whoever has the most guns wins.
Divided Argument
Separation-of-Powers Police
But lots of internationalists and international lawyers see ways in which states manage to shape each other's behavior and create incentives for different kinds of law-compliant behavior, even without a super Leviathan standing there with the ultimate weaponry.
Divided Argument
Separation-of-Powers Police
And the same thing in constitutional law, where, as you know, from the beginning of American constitutionalism, our framers worried about parchment barriers and would the constitution create anything that would be strong enough to stand in the way of the people with guns and money and other forms of power. And We seem to have, at least to some extent, succeeded in doing that.
Divided Argument
Separation-of-Powers Police
And how we've done it is kind of interesting. Though you come in, it sounds like, you know, based on your local intellectual milieu, you maybe pre-persuaded that constitutional law and international law are alike in these ways.
Divided Argument
Separation-of-Powers Police
Whereas I had thought that the book would be shocking because most people would have your other view of constitutional law as real law and would only see international law as fake.
Divided Argument
Separation-of-Powers Police
I don't know the answer, but I know the forms of the answer that could be most plausible. And they track the forms of answers that international relations theorists have developed over a really long period of time. I guess the baseline would be a kind of realism that denies that there is much of any legal compliance either in the international arena or in constitutional law.
Divided Argument
Separation-of-Powers Police
And the way that kind of argument spins is – Oh, yeah, we see powerful people, you know, doing the stuff that the Constitution says sometimes. But that's probably just because of coincidence of interest. It just so happens to serve their interest that the government is structured in this way because this is the structural system that brought them to power in the first place.
Divided Argument
Separation-of-Powers Police
So why would they mess with it? You know, the president of the United States likes being commander in chief, so respects the commander in chief clause, that kind of thing. And then moving from that baseline of sort of skeptical realism, you get rational kinds of theories of longer term or broader self-interest. So international law, this is rational institutionalism.
Divided Argument
Separation-of-Powers Police
The constitutional equivalents have been developed by various political scientists. And the basic lines of argument are, you know, repeat play in a kind of prisoner dilemma situation or coordination games where it is in the enlightened long term self-interest of powerful political actors. to coordinate or cooperate around constitutional rules and constitutional institutions.
Divided Argument
Separation-of-Powers Police
And those stories can be developed at the level of specific arrangements like Senate filibuster. Like, I don't know whether my party is going to be in the majority or the minority over the medium term. So I'm okay allowing minority vetoes even when I'm in the majority because I'm going to get to veto majority. when the table turns to democracy.