Will Bode
Appearances
Divided Argument
Separation-of-Powers Police
Many, but let me try this. So it seems like one thing that does distinguish constitutional law from international law is the presence of the Supreme Court. And so it seems like much of constitutional theory is really scholarship about the U.S. Supreme Court and what it has done and what it will do and what it should do. And I don't know if you want it to be dismissive.
Divided Argument
Separation-of-Powers Police
You'd say many pieces that claim to be constitutional theory are really just long essays to the justices about why the justice should do the thing the author wants to do, dressed up in the language that the author thinks the Supreme Court justices want to hear.
Divided Argument
Separation-of-Powers Police
you could some of it could be better than that but it seems like there is even if it's not the world police exactly and it's there is this question about like well who watches the supreme court who makes the supreme court obey the law it does seem like you have this giant institution frequently engaged in the enterprise of of constitutional law telling everybody else what to do and everybody listens to it and does that does that break the analogy in a way we care about or is there a does that
Divided Argument
Separation-of-Powers Police
So can I push this hypo and maybe it'll end up with a different place? So I always love the hypo of, you know, why does the president obey the Supreme Court? Because he has line of first airborne and they don't. But I always like to push it one step further, which is that the president doesn't really have the 101st Airborne either.
Divided Argument
Separation-of-Powers Police
I mean, he can tell them what to do, but to the 101st Airborne, he's just one more elite person in a big white building in D.C. telling them what to do. So there's still the puzzle of why does the 101st Airborne care either what the president says or what the Supreme Court says?
Divided Argument
Separation-of-Powers Police
And maybe the reason that the president doesn't just tell the 101st Airborne to invade the Supreme Court is because he thinks they wouldn't listen to him either. And maybe part of the constraint here goes down at some deeper level about what is the rule that all the actual people with guns sort of accept and are taught.
Divided Argument
Separation-of-Powers Police
And then maybe part of the answer is that they all go to West Point or officer training school where they read the actual Constitution and told to believe in things like the separation of powers and that the Supreme Court has the power of judicial review. And they get the naive story.
Divided Argument
Separation-of-Powers Police
And because all the people who actually have guns are taking oath to the Constitution in a really naive way and given the really naive picture of constitutional law, they're ultimately following the kind of the naive rule of recognition. And I guess in international law, you call that the constructivist legitimation story or something.
Divided Argument
Separation-of-Powers Police
We'd say we've created this fake fairy tale about the separation of powers that a lot of people like to believe in for normative rule of law reasons. And we've successfully taught all the people that. who we trust with guns to believe in this fairy tale. But that seems like what's doing a lot of the work, just when I look around at the world. Is that wrong?
Divided Argument
Separation-of-Powers Police
Yeah. And then wouldn't it be, I guess, if you think about this, I'm thinking, okay, I've got a 300 million person coordination game in a really complicated and fractious polarized country. And how are we going to make that work? And, you know, at first that sounds like a really deep challenge.
Divided Argument
Separation-of-Powers Police
And then I say, but there's this one funny coincidence, which is that there is this like one piece of paper with like 5,000 words about how to plan the government that everybody already carries around in their pockets and everybody already like knows about and, you know, learn somewhere in AP government class. And so we do have that.
Divided Argument
Separation-of-Powers Police
And then it seems like almost every game theorist would say, well, that sure sounds like your shelling point, doesn't it? Hard to imagine coordinating around anything else and hard to imagine why you'd want to coordinate around anything else unless you tell me this document is like totally nuts. And so doesn't game theory kind of naturally lead us to positivist constitutional textualism?
Divided Argument
Separation-of-Powers Police
It may be. It may be. It may be I'm the worst possible target audience for this book because I'm already half believe it, but then I'm prepared to take it in a sort of evil direction, as Daryl suggested. Because the other kind of coordination, you can have coordination on written texts, like the Constitution, and then you can have coordination around
Divided Argument
Separation-of-Powers Police
you know, common law, unwritten rules and sets of adjudicators and systems that don't want those rules. And so the other great game theory project we once had was the general law, the unwritten law that judges and lawyers in every system in America sort of accepted as their unwritten law.
Divided Argument
Separation-of-Powers Police
And that's how they handle all the non-constitutional stuff, like the Lex Merchant and international law and conflict of laws and all that stuff. That system, it turns out, didn't work, right? That system was destroyed somewhere between 1870 and 1938, leaving us only with the constitutional system.
Divided Argument
Separation-of-Powers Police
So you might say of the two great experiments in game theory we had, one, the Constitution has survived, and the other one was destroyed by Erie.
Divided Argument
Separation-of-Powers Police
an unscheduled, unpredictable Supreme Court podcast. I'm Will Bode. And I'm Dan Epps.
Divided Argument
Separation-of-Powers Police
At the level of constitutional theory, this seems like a really powerful argument against having the Supreme Court do a kind of roving balance of powers analysis, where they're always kind of looking to see, is the balance of power too much and rebalancing it? But you could imagine several alternatives.
Divided Argument
Separation-of-Powers Police
One, sort of what you described as having the Supreme Court do a roving balance of power analysis to something else, like groups or the outcomes that really matter or whatever. Yeah. Another alternative would be having the Supreme court just try to try to maintain a steady state. Like, so you might think, you know, the, we have, we're going to have these various institutions.
Divided Argument
Separation-of-Powers Police
They're going to have, and all the people are of course going to organize to capture the institutions because they have the power. And part of the whole goal of political power parties really are just like organizations to capture power, to, you know, fulfill whatever their coalitions want to want to do.
Divided Argument
Separation-of-Powers Police
And so you might think, really, the best thing this framework could do is just try to, like, hold everything constant. Like, whatever amount of power the president has, let's just keep it there. Whatever amount of power Congress has, let's keep it there. Whatever amount of power the states have, we'll keep it there.
Divided Argument
Separation-of-Powers Police
And that way there will be a firm, level, fair playing field for everybody to try to capture. And you might imagine just keep that constant forever, so we could just take whatever the balance of power was, say, at the founding, and just keep that exactly the same by just enforcing the exact same constitutional rules we've always had since the founding.
Divided Argument
Separation-of-Powers Police
You might call that originalism if you wanted to and suggest that would be the best way for the Supreme Court to react to this problem.
Divided Argument
Separation-of-Powers Police
Right. But some of this depends on how much you believe in the power of these groups and parties to evolve over time. Like, it's a good thing that the balance of power between the slave states and the free states is different than it was the founding. The free states, they managed to win all the institutions so deeply that, you know, we have a constitutional amendment. And so that's good. Yeah.
Divided Argument
Separation-of-Powers Police
And so you might think, if you really believed in some of the power of these non-constitutional institutions, you might think, well, even without an administrative state, the people who want effective government would capture enough of Congress, enough of the states to get one anyway. And we'd have to run it through the constitutional institutions. You'd have to have states do more.
Divided Argument
Separation-of-Powers Police
You'd have to have Congress do more. So it's only if we actually think these institutional choices do have some substantive bias or content that we care a lot about the functional adaptations. It's only because we actually do think the administrative state is on average more likely to do X than whatever institutions we'd have in the absence of the administrative state.
Divided Argument
Separation-of-Powers Police
And then that sort of pushes us back to where we started, that maybe it's not so silly to care about the balance of powers.
Divided Argument
Separation-of-Powers Police
Good. And then one more stab at originalism, and then I'll give up. So then you might think, given all this, what we really need to coordinate around is not the Constitution, not the document, because for all the reasons you said, that's going to lock us into something really tragic.
Divided Argument
Separation-of-Powers Police
But we need to coordinate around something we might call the rule of change, coordinate around the rule for changing the document. And as long as we coordinate around that... then the document will be able to evolve in ways we'll be able to accept what all the evolution is. And you might call that, I don't know, Article 5.
Divided Argument
Separation-of-Powers Police
I think that's the best way to coordinate around rules of change for the document. And that would, again, lead you to a kind of originalism. And I take it the response will be, the problem is that didn't work either, because that rule of change was also insufficiently adaptive and didn't do the things we needed to do.
Divided Argument
Separation-of-Powers Police
And so we had to coordinate around some other rule of change other than the one actually contained in the Constitution. And we didn't successfully do that. Some people think it's the Supreme Court, and some people think it's Bruce Ackerman, and some people think it's popular constitutionalism, and some naive people still think it's Article V.
Divided Argument
Separation-of-Powers Police
And until we can coordinate around that, constitutional law is kind of stuck in this place where it's not doing what it's trying to do. Is that the problem?
Divided Argument
Separation-of-Powers Police
Yeah, it's the whole thing. I mean, the kind of people who don't like the Chicago School have a whole series of Sherman Act originalist articles pointing out that Robert Bork was not alive when the Sherman Act was written, and that law and economics had not been invented when the Sherman Act was written, and therefore it must be something else.
Divided Argument
Separation-of-Powers Police
They usually then have a few stray pieces of evidence that the founders of the Sherman Act really didn't like big corporations as evidence that we should dislike all big corporations. The correct move is general law Sherman Act originalism. So the Sherman Act was written actually in the shadow of a well-established general law of unfair competition and unfair trade practices.
Divided Argument
Separation-of-Powers Police
And even the authors of the Sherman Act explicitly said, this is just going to take the things that the state courts are already doing and move it to a federal forum where, you know, more neutral judges handling these cases. Nobody's actually dug in to try to explain what the general law of antitrust as of the 1990s was, but that's the right move.
Divided Argument
Separation-of-Powers Police
Probably. I think the general law has always had a mix of custom and reason, a mix of what we think of as dumb positivism and a mix of using some sort of functionalist smart principles. Those two things have always been the elements of the general law.
Divided Argument
Separation-of-Powers Police
In the 19th century, lawyers always were kind of fighting about how much weight to give to each of those two things in a way that's not totally satisfactory. So yes, there'd be a little bit of both.
Divided Argument
Separation-of-Powers Police
And to do it well, you'd need somebody who was pretty sophisticated about economics and somebody who was sophisticated about history and jurisprudence, or one person who was sophisticated about all of them, I guess, to really kind of try to establish it.
Divided Argument
Separation-of-Powers Police
Yeah. I mean, now one claim sometimes is they had a much less polarized bar. The country is polarized in various ways, but a lot of what the lawyers in the 19th century called the general law might really have been general only as 19th century lawyers who all were kind of reading the same books and talking about the same stuff.
Divided Argument
Separation-of-Powers Police
and maybe even they were kind of the country's secret sauce, they had reached a set of norms and principles among themselves that were sufficiently functional that we could delegate certain things to them and be glad they were handling it well and responsibly.
Divided Argument
Separation-of-Powers Police
And it might be we don't have those people anymore because our lawyers probably are much more polarized than they used to be, down to the level of first principles. And so it might be that it's a consequence of the
Divided Argument
Separation-of-Powers Police
And as I understand this, tell me if this is wrong, you could think of the constitutional law scholars who haven't reconciled themselves to this question, who haven't asked if constitutional law is possible in two different camps. There are the people who think constitutional law is all bunk, and there is no constitutional law. This is probably most of my colleagues say things like this.
Divided Argument
Separation-of-Powers Police
changes in elite society and legal education that that mean we need somebody else one possibility obvious possibility would be to use the federal society which seems to be well made to do this and if we could all just agree to let them handle all of our problems we have nothing to worry about
Divided Argument
Separation-of-Powers Police
It's just an illusion to think there's constitutional law. And then you have maybe the naive people The naive people who think, oh, of course, there's constitutional law because it's a constitution and the Supreme Court follows it. And, you know, it's the most important kind of law. And I take it. Do you see yourself as saying something to both sides of that or are you on one side of that?
Divided Argument
Separation-of-Powers Police
We agree. I will confess, I did a bunch of media about qualified immunity in 2020 when Congress was thinking of abolishing qualified immunity. And all I'd written about is that qualified immunity is made up and the Supreme Court probably shouldn't have done what it did. But then people ask you all these consequentialist questions about qualified immunity.
Divided Argument
Separation-of-Powers Police
And it's clear you're supposed to say that you're confident that abolishing qualified immunity would lead to X and Y and Z. But of course, I've read enough of Daryl's work and people's work to know that it's very hard to predict with any confidence what would happen if qualified immunity was abolished. So I just try to avoid those questions.
Divided Argument
Separation-of-Powers Police
And I know you know this, but there's a fellow at NYU, Marco Basile, who has a paper about this very question about sort of How did constitutional law and international law split? That I thought was one of the best papers I read by a junior scholar or a fellow on a very long time.
Divided Argument
Separation-of-Powers Police
Yeah, I mean, there are many different versions of this, right? So you might get, well, okay, there's constitutional law in easy cases. You know, we do seem to have an electoral college. But any constitutional law question that makes it to the appellate courts, they might say, is one where there's sort of inherently no law.
Divided Argument
Separation-of-Powers Police
But some of this, and I'm, I mean, I remember hearing there was no such thing as international law, because it's just all politics all the way down. And, you know, the idea that there's international law is an illusion created by human rights lawyers and Harvard Law professors. I mean, that's implausible to me.
Divided Argument
Separation-of-Powers Police
And then once I accepted that drug, they told me, well, the next step was to recognize the same thing as true of constitutional law, which is an illusion made up by constitutional activists and Harvard law professors. So then I became nervous that all of this kind of law was an illusion.
Divided Argument
Separation-of-Powers Police
Well, my co-author, Steve Sachs, used to always press them at this point and say, you know, when they go up at the faculty parking lot, do they always get in their own car or do they take somebody else's? As far as I can tell, the law of the faculty parking lot seems to be real. Everybody seems to know who owns whose car and nobody violates that.
Divided Argument
Separation-of-Powers Police
But I take it, so the idea is that as to the faculty parking lot, and for that matter, contract law, there's a set of people who have guns called the Cook County Sheriff's Department, and to a lesser extent, the University of Chicago Police Department, although they don't do as much as they used to, but them too, who, you know, they will stop you from getting into somebody else's car, at least if somebody calls them, and they will come and take your stuff if you don't pay your contracts.
Divided Argument
Separation-of-Powers Police
Right. And so maybe the realist could say most of the time, I guess Oliver went to Holmes and say this, right? Most of the time I'm talking about law. I mean, the courts will tell the people with guns to come take your stuff and they will do it.
Divided Argument
Separation-of-Powers Police
And in international law, I mean, there are a lot of people with guns, but there's not like one set of, there's not the world sheriff's department that just enforces international law. And in constitutional law, there's not like the separation of powers police that come with guns and like stop people from violating the separation of powers, right? That's the challenge.
Divided Argument
Separation-of-Powers Police
There is this famous thing, the gel man amnesia effect, which is where you read the New York Times when it talks about something you know. You generally believe in the New York Times. You read the New York Times when it talks about something you know. You read the legal stories and you realize they're not very good.
Divided Argument
Separation-of-Powers Police
And then somehow you forget this fact and you fail to apply it to all the fields you do know about. And you think, oh, they must know about everything except the thing I know about. And I feel like for a while I was like that about international law. Like when people tried to convince me that international law didn't exist, I was like, oh, okay, sure, that seems right.
Divided Argument
Separation-of-Powers Police
And then they came and also tried to convince me constitutional law didn't exist. And I was like, well, wait a minute, that doesn't seem right. But it took me a long time to realize those are the same argument. And therefore, if I thought constitutional law did exist, maybe international law exists too. Can we get, though, like an example of how constitutional law is possible?
Divided Argument
Separation-of-Powers Police
So how is it that the people with guns, on your view – How is it that the people with guns and money sometimes listened to people without guns and money because of constitutional law?