After a long hiatus, we're particularly unpredictable with an episode that isn't about the Supreme Court. We're joined by NYU law professor Daryl Levinson to talk about his exciting and important new book on constitutional theory, Law For Leviathan: Constitutional Law, International Law, and the State. Listen to learn why the Supreme Court's constitutional pronouncements on separation of powers might not matter as much as you thought—and along the way you'll find out what might happen to Will if he starts breaking into his colleagues' cars at the University of Chicago parking lot.
After a long hiatus, we're particularly unpredictable with an episode that isn't about the Supreme Court. We're joined by NYU law professor Daryl Levinson to talk about his exciting and important new book on constitutional theory, Law For Leviathan: Constitutional Law, International Law, and the State. Listen to learn why the Supreme Court's constitutional pronouncements on separation of powers might not matter as much as you thought—and along the way you'll find out what might happen to Will if he starts breaking into his colleagues' cars at the University of Chicago parking lot.
Law for Leviathan: https://global.oup.com/academic/product/law-for-leviathan-9780190061593?cc=us&lang=en&
[Divided Argument theme]
Will: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. 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 planned instead. 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 were praising him and we talked about Thomas Jefferson as an inventor.
And we got multiple emails from Ted Frank and Dan Simon about Ben Franklin's inventions, the full extent of which I was not familiar, lightning rod, bifocals, daylight savings time, the Franklin stove, reaching device. I don't know what that is. Some 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.
Will: Yeah, I told you.
Dan: Okay. All right. Well, you didn't tell me you didn't list those things.
Will: Yeah. It was great.
Dan: Yeah. Did I mention that he was super sexually depraved?
Will: You may have.
Dan: 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 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 Boyce 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, 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.
Daryl: Thanks for having me on your podcast.
Dan: I think you were the first former professor of mine to be on the podcast, unless I'm forgetting somebody. I think Will thinks of himself as my professor, [Will chuckles] but I try to push back on that. So, this is really exciting and fun for me. Also, a great Supreme 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?
Daryl: I didn't actually see it, but I heard about it on your podcast, and that was really exciting news to me.
Dan: Okay.
Daryl: 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.
Dan: Yeah. So, two decades later, apparently that article was relevant to figuring out whether domestic abusers can have guns. So, I thought maybe you might just tell our listeners the general thrust of the book. It's obviously, it's a really big and important book, and there's more than can be summarized in a pithy few minutes, 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 is the book that I think would really change the way people think about some of these things who are not familiar.
Daryl: Okay, well, I am happy to talk about the book and honor 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 about baseball and waiting to hear about which teams are going to make the playoffs and what record Ohtani 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 what the book is about, “how constitutional law is possible.” So, the broad theoretical problem is, how do we make states the subject of law?
When we think about law, what we're paradigmatically thinking about is the kind of law that's made in enforce by the state or by governments for people. But making the state itself subject to law is a very different enterprise because there's no super state to make and enforce the law. And also, the state is just a very different 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 weird body of law that's been grappling with its own weirdness for centuries. 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.
Will: 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. They 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. That's just an illusion to think there's constitutional law. And then you have maybe the naive people who think, “Oh, of course, there's constitutional law, because there's a constitution and the Supreme Court follows it, and 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 one side of that?
Daryl: 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. 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 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, and it's not true that they don't exist. It's just true that they're different, different from our 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. But they have managed to work themselves out, at least to a considerable extent, and in many of the same kinds of ways.
Dan: Will, 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 law as an enterprise practice by judges. They're not necessarily people that are skeptical of the idea that we have constitution that creates different institutions, that creates three branches and so forth.
Will: Yeah. I mean, there are many different versions of this, so you might get-- Well, okay, there's constitutional law and easy cases. 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. I remember hearing there was no such thing as international law because it's just all politics all the way down. And the idea there's international law is an illusion created by human rights lawyers and Harvard law professors. That seemed plausible to me. 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 law was an illusion.
Dan: Yeah. And, Daryl, a question for you. I mean, 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. You're saying that there are kinds of arrangements that are possible, and you can take different views about them, but there are accounts by which different groups in society come to agree on constitutional provisions as coordinating rules and so forth, right?
Daryl: That's right. 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 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, 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 Morton Horowitz taught us this is where strict liability comes from. 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?
Will: Well, so, my coauthor, Steve Sachs, used to always press them at this point and say, “When they go up to the faculty parking lot, do they always get in their own car [laughs] or do they take somebody else's?” [laughs] As far as I can tell, that the law of the faculty parking lot seems to be real. Everybody seems to know who owns whose car, and nobody violates that.
Daryl: Yeah, I think constitutional law is like that too. This is Dan's point. We do have a congress with a house and a senate and two senators per state and a president who is elected more or less like the constitutional text says and all the other stuff. And it seems like people are getting in their own cars. And the more interesting question might be, why?
Will: 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 at the Cook County Sheriff's Department and to a lesser extent, the City of Chicago Police Department, although they don't do as much as they used to, but them too, who, they will stop you from getting to 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. And so maybe the realist could say, I guess Oliver Wendell Holmes would say this. “Most of the time when 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.”
And 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 the separation of powers police that come with guns and stop people from violating the separation of powers. That's the challenge.
Daryl: Right. So, I'm wary of talking about guns for fear of ending up in another Supreme Court opinion. But that's right. One 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. 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. 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 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. And how we've done it is interesting. Though you come in, it sounds like, based on your local intellectual milieu, maybe pre-persuaded that constitutional law and international law are alike in these ways. 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.
Will: There is this famous thing, the Gell-Mann 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, 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 so the thing I know about,” and I feel like for a while I was like that about international law. When people tried to convince me that international law didn't exist, I was like, “Okay, sure, that seems right.” And then they came and also try 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 an example of how constitutional law is possible? So, 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?
Daryl: 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 realism that denies that there is much of any legal compliance, either in the international arena or in constitutional law. And the way that argument spins is, “Oh, yeah, we see powerful people, 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. So, why would they mess with it? The President of the United States likes being commander in chief, so respects the commander in chief clause,” that kind of thing.
[00:15:46] And then moving from that baseline of skeptical realism, you get rational kinds of theories of longer term or broader self-interest. So, in international law, this is rational institutionalism. The constitutional equivalents have been developed by various political scientists. And the basic lines of argument are repeat play in a 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. And those stories can be developed at the level of specific arrangements, like Senate filibuster, “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 when the table turns to democracy.” “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.
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, 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? Why do people 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 law instead of politics? Is it the robes? Is it something else? 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.
Dan: There is 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, either irrelevant or beside the point or at least perhaps that'd be phenomenal. And so, question one, as part of that is constitutional law has been obsessed for decades with these normative questions about 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 positive question about why is this possible at all? Why do you think that those questions haven't been asked? Why do you think that 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.
Daryl: 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 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, and the law is going to work 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. And to the extent that there were constitutionalists who were concerned about the kinds of issues that I take up in the book, they 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.
And I think that it's interesting 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. 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.” 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.
And I think a movement like that in constitutional law and constitutional theory might be an interesting form of progress.
Dan: Do you have a response, Will, as someone who continues to be very invested in the normative debate about how to interpret the constitution?
Will: 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 US Supreme Court and what it has done and what it will do and what it should do. And I don't know if you wanted to be dismissive, you'd say, “Many pieces that claim to be constitutional theory are really just long essays to the Justices about why the Justices 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.” Some of it could better than that. But it seems like there is, even if it's not the world police exactly, there is this question about, “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 constitutional law, telling everybody else what to do, and everybody listens to it. Does that break the analogy in a way we care about, or does that--? I don't know.
Daryl: I think the Supreme Court is super important, and I agree with you descriptively, that a lot of the faith in constitutional law as 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 judicial supremacy. And international law does not have the equivalent. There's no general world court that everyone agrees can decide the most important issues of international law and how 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.
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's going to mean. And it's not clear how these legal disagreements get resolved. And the whole system, all of a sudden, looks a lot more like international law looks. So, I think the court is really important, and 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. 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 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. And it's interesting ask why presidents don't say that 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 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 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. 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 in a very meaningful sense. That's the realist view. 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 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.
Will: So, can I push this hypo and maybe it'll end up with a different place. So, I always love the hypo of why does the president obey the Supreme Court? Because he has 101st 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. 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 DC telling him 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? 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 accept and are taught. And that made me think maybe part of the answer is that they all go to West Point or Officer Training School, where they're 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. And because all the people who actually have guns are taken oath to the constitution in a really naive way, and given the really naive picture of constitutional law, they're ultimately following the naive rule of recognition. And I guess international law you call that the constructivist legitimation story or something.
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 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?
Daryl: Yeah. So, your evil version of constructivism could be-- [crosstalk]
Will: Is it evil?
Daryl: Yeah. So, of course, you're right. The question of why does the president pay attention to the Supreme Court? Presupposes that there's a president who is elected and empowered which the way the constitution describes, and that there's a Supreme Court and set up according to Article 3 and why do we have those things? And there's a regress and there are hurdles, and you got to explain, ultimately, why anyone is willing to go along with any of these constitutional rules or arrangements and building the thing from the state of nature in a Hobbesian way, you’ve got to have some reasons for that.
And I think the reasons are the standard reasons. You've got to tell a ground up story of either why it's in people's interests in some longer or broader term or shorter-term intermediate 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.
Will: Yeah. 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 and polarized country and how are we going to make that work?” And at first that sounds like a really deep challenge. And then I say, “But there's this one funny coincidence, which is that there is this one piece of paper with 5000 words about how to plan the government that everybody already carries around in their pockets and everybody already knows about and learns somewhere in AP Government class.” So, we do have that. And then it seems like almost every game theorist would say, “Well, that sure sounds like your shelling point, doesn't it?” [laughs] 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 naturally lead us to positivist constitutional textualism?
Daryl: It could have, in a path dependent way. 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, 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 Gienapp 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 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. 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 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.
Dan: If I can offer a side note, because you put the general law point on the table, I thought that was interesting. 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 showing that things that we have treated as just ordinary constitutional law now, or maybe actually would have been thought of as more like international law, is that a fair description of that kind of move, Will?
Will: Yes. This is trap. [laughs]
Dan: And does it suggest a greater receptivity to the move Daryl's book is making?
Will: It may be. I'm the worst possible target audience for this book because I already half believe it. But then I'm prepared to take it in a sort of evil direction, as Daryl suggested, because you can have coordination on written texts like the constitution, and then you can have coordination around unwritten rules, and sets of adjudicators and systems that implement 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 accepted as their unwritten law. And that's how they handle all the nonconstitutional stuff, like the lex merchant and international law and conflict of laws and all that stuff. That system, it turns out, didn't work.
That system was destroyed somewhere between 1870 and 1938, leaving us only with the constitutional system. 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.
Dan: 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 has shaped the way, I think, is your discussion of power and how that maps onto the structural constitution. And we, on this podcast, have read a lot of and talked about a lot of big separation of powers cases. And there's this concern about aggrandizement as the executive branch taking power away from other branches. And I think one lesson from your book is that's a dumb way to think about it, because in terms of figuring out where power actually lies, just the surface level of looking at how constitutional decisions allocate power among the branches misses the point. Would you flesh that argument out for our listeners a little bit and we can talk about it?
Daryl: Sure. 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. And as a normative ideal, it's hard to understand why anyone actually cares about balancing power at the level of branches of government or between the states and the national government. So, on the behavioral side, 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 and being killed.
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 theory to what happens between Congress and the president, none of the same things are true. 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? I mean, I know January 6, [Dan laughs] 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, 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, 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. So, the basic Madisonian constitutional dynamic that's now written into 8000 Supreme Court opinions, and we're all taught to believe of 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 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 constitutional lists, why does constitutional law, why does the Supreme Court care about what the balance of power is between Congress and the president? Like 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?
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 through Congress or through the president, or through some combination of both. So, we want to protect countries from being invaded and destroyed. 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.
Dan: 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? That's when the cynical explanation for the conservative push on dialing back the administrative state is precisely 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. Does that suggest that's really, at bottom, the only real stakes of those cases?
Daryl: That's what it suggests to me. So, no one is surprised when people's views on whether the president should have more power, the courts or Congress just simply align with whichever party controls the institution at any given time. 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. No one's missing what's going on there. The interesting and 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.
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. Is there some consistent political slant that the administrative state has? So, if you empower agencies, you'll consistently get somewhat more liberal results? Well, possibly, if it's true in some long-term way that people who select for jobs and bureaucracy or in some agencies like the EPA are committed liberals or environmentalists, then you might have some reason to think it's at least a somewhat long-term 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. You've probably seen a paper by David Pozen and Jonathan Gould that's called Structural Biases, which tries to identify some long-term democrat versus republican kinds of differences between the institutions of government that might lead those on both sides of the partisan divide to have their preferences one way or the other. And 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 liberals, like more government.
And so, 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 antiregulatory. And so that's going to generate political divides. 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.
Dan: Can we make any kind of assumptions or none? 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 controlling his behavior. 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?
Daryl: 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, 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?” Or “Do we have small ‘p’ progressive inclinations toward government doing stuff?” Which is not the fighting ground, typically of Republicans versus Democrats.
Will: At the level of constitutional theory, this seems like a really powerful argument against having the Supreme Court do a roving balance of powers analysis, where they're always looking to see is the balance of power too much and rebalancing it. But you could imagine several alternatives. One 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. Another alternative would be having the Supreme Court just try to maintain a steady state. You might think we are going to have these various institutions, 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 fulfill whatever their coalitions want to do.
And so, you might think really the best thing the Supreme Court could do is just try to hold everything constant. 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. And that way there will be a firm, level, fair playing field for people 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. 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.
Daryl: Yeah, what would best about it? So, it would best in that it would remove one dimension of 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. 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.
So, 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, then can be generated by Congress, and then maybe especially Congress in a polarized era. And that's what people still believe about the administrative state. It's a functional adaptation. And the same with 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, is that right?
Dan: Also, Will can respond to that, but also, 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 societal power divisions change. 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. 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.
Will: Right. But some of this depends on how much you believe in the power of these groups and parties to evolve over time. It's a good thing that the balance of power between the slave states and the free states is different than it was at the founding. The free states, they managed to win all the institutions so deeply that we have a constitutional amendment. And so that's good. And so, you might think, if you really believed in some of the power of these non-constitutional institutions, you might think, well-- even that administrative state, 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. You 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 with 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. 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.
Daryl: Yeah, that all sounds right to me but except the last line, [Will laughs] it's not silly to care about the balance of powers, but why are we caring? We got different goals here. The less you allow people to change 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 because you may get 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.
Will: 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. 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 and ways we'll be able to accept what all the evolution is. And you might call that, I don't know, Article 5. And I think that's the best way to coordinate around rules of change for the document. And that would, again lead you to an originalism, and I take it the responsible 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. 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 5. Until we can coordinate around that, constitutional law is stuck in this place where it's not doing what it's trying to do. Is that the problem?
Daryl: 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 5. But it doesn't seem to be enough of a problem of unsettlement that it's seriously destabilized our constitutional system of government, at least for a period of a number of decades.
Dan: 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- we send nine copies, every Justice reads it and totally is persuaded. What should that change about how they approach their jobs? And maybe we have to put aside questions about interpretive method. 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?”
Daryl: 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. 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. If 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. 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. And if you're purely a Baudeian 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, 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.
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. So, it might be good to have a different conception of rights. And there is 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 way. So, there are big picture jurisprudential directions that the book suggests that, I would be happy if Justice Thomas took me up on.
Dan: Yeah, I mean, you could imagine some Justice saying, “Well, we've been focusing on the wrong questions and separation of power. So, I'm going to start doing a power divisions in society analysis, and I'll vote for separation of powers when I think that this tracks underlying divisions and power dynamics in society, and I won't otherwise--” Now, that seems really hard. It seems basically not at all consistent with what 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? And the answer is, it's hard. It's really easy to look at the document and say, “Oh, you know, 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. 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.
Daryl: Maybe constitutional lawyers have this view more than other kinds. So, look, courts built antitrust law. [Dan laughs] 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 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?
Dan: Is there Sherman Act originalism, Will?
Will: Yeah, it's the whole thing.
Dan: Okay.
Will: I mean, the 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 [Dan laughs] and that law and economics had not been invented when the Sherman Act was written, and therefore it must be something else. 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.
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 more neutral judges handling these cases. Nobody's actually dug in to try to explain what the general law of antitrust as of the enactment [of the Sherman Act] was. But that's the right move.
Daryl: Was the general law functionalist in some way?
Will: Probably. I mean, 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 functional smart principles. Those two things have always been the elements of the general law in the 19th century, lawyers always were 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. And to do it well you’d need somebody who was pretty sophisticated about economics and somebody who’s sophisticated about history and jurisprudence, or one person was sophisticated about all of them, I guess, to really try to establish it.
Dan: So, like an originalist lawyer who teaches at the University of Chicago.
Will: [laughs] He might need a co-author. [Dan laughs]
Daryl: This seems promising. So, if 19th century general lawyers in the field of antitrust could do it, why couldn't constitutional lawyers today?
Will: Yeah. I mean, now, one claim sometimes is they had a much less polarized bar. The country was polarized in various ways. But a lot of what the lawyers in 19th century called the general law might really have been general only as 19th century lawyers who all were reading the same books and talking about the same stuff, and maybe even they were 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. 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 changes in elite society and legal education that mean we need somebody else. One possibility, obvious possibility, would be to use the federalist 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.
Dan: 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 the preferences of the Justices did not systematically track the preferences of the key divisions in politics. 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. Justice Kennedy and Justice O'Connor and things like that.
And 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-- [crosstalk]
Will: We didn't start it.
Dan: And that maybe is leading to some of the breakdown that we're seeing and maybe 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, “Let's put forward a court backing proposal.” I talked 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.
Daryl: 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. 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.
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, but now do have a clear partisan kind of tilt. But lots of parts of the structure of government don't. You don't see Democrats and Republicans argue about whether we should switch to being a parliamentary system instead of a presidential system because no one has any idea whether that would be good for them or bad for their opponents. And so those parts of the constitutional structure just get left alone, and they're treated as neutral coordination things instead of partisan inflected things to fight about. And the Supreme Court, at some points, has been more of a neutral coordination thing, but now clearly is not.
Dan: 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 docket cases because I think there's a pretty clear takeaway there, right?
Daryl: The closest I can get is qualified immunity, [Dan laughs] which I don't think anyone should care about.
Dan: Will cares about that. Will cares about that as much as anybody.
Daryl: I know. That's why I came up with it. [Dan laughs] I was trying to think of 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.
Dan: And I actually have my one New York Times op-ed is saying people shouldn't care about qualified immunity. So, you did 50% on that.
Daryl: We agree.
Will: Okay, 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. 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 other 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 tried to avoid those questions.
Daryl: 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. 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.
And of course, that's an idea that goes back to Hobbes and Bodin and Grotius, 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, 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, they were amalgamated together as part of this brooding omnipresence of fundamental or general law. And it's 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. British legal theorists have continued to develop this overarching conception of public law. Scholars like Martin Loughlin 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, written-ness, and judicial review.
Will: And I know you know this, but there's a fellow at NYU, Marco Basile, who has a paper about this very question about 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 in a very long time.
Daryl: 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 more in a strong a positivizing force.
Will: Really is all the Supreme Court's fault after all.
Dan: 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? And he tried about three or four times.
Daryl: I think, has he moved the needle? I've always agreed with Will [Will laughs] that 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, including vast sweeping knowledge of general law [Dan chuckles] and what that thing is, as well as history and tradition and everything else. 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 maybe on a path to undermining the primary benefit he identifies with originalism.
Dan: 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.
Daryl: Have to, in any given case.
Will: It's always the problem with law.
Dan: 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 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, 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 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 dumb or epiphenomenal or irrelevant to maybe what really matters in the world.
Daryl: Thank you. And thank you for this really fun conversation.
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Dan: 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, 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 fairly soon after the episodes go up. store.dividedargument.com for merchandise you can send us an email pod@dividedargument.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.
Will: 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.
Dan: And if there's a long delay between this and our next episode, it will be because Daryl Levinson convinced us that the entire enterprise of constitutional law is, and the entire enterprise of reading Supreme Court decisions is irrelevant and pointless.
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