Dan Epps

as a set of ideas that people like Will and Steve have put forward and that I've piggybacked on a little bit, which in some ways maybe shows that originalists like Will are actually a more receptive audience for these kind of insights, to the extent that those arguments are kind of showing that things that we have treated as just kind of ordinary constitutional law now or maybe actually would have been thought of as more like international law.

Is that a fair description of that kind of move, Will? Yes, this is trapped. And does it suggest a greater receptivity to the move Daryl's book is making?

Is that a fair description of that kind of move, Will? Yes, this is trapped. And does it suggest a greater receptivity to the move Daryl's book is making?

So can I put another topic on the table to try to continue to flag things that I think are of particular interest to Supreme Court nerds? One of the biggest themes from the book that I find interesting and to shape the way I think is kind of your discussion of power and how that maps on to the structural constitution. And we –

So can I put another topic on the table to try to continue to flag things that I think are of particular interest to Supreme Court nerds? One of the biggest themes from the book that I find interesting and to shape the way I think is kind of your discussion of power and how that maps on to the structural constitution. And we –

on this podcast, you know, have read a lot of and talked about a lot of kind of big separation of powers cases. And there's this concern about aggrandizement as the executive branch taking power away from other branches.

on this podcast, you know, have read a lot of and talked about a lot of kind of big separation of powers cases. And there's this concern about aggrandizement as the executive branch taking power away from other branches.

And I think one lesson from your book is that that's kind of a dumb way to think about it because, you know, in terms of figuring out where power actually lies, just the surface level of kind of like looking at how, constitutional decisions allocate power among the branches misses the point. Would you kind of flesh that argument out for our listeners a little bit and we can talk about it?

And I think one lesson from your book is that that's kind of a dumb way to think about it because, you know, in terms of figuring out where power actually lies, just the surface level of kind of like looking at how, constitutional decisions allocate power among the branches misses the point. Would you kind of flesh that argument out for our listeners a little bit and we can talk about it?

Does that suggest, though, that assumptions about which groups are likely to control institutions is really driving a lot of the push behind different interpretations of separation of powers? I mean, that's one. The cynical explanation for the conservative push on dialing back the administrative state is precisely this.

Does that suggest, though, that assumptions about which groups are likely to control institutions is really driving a lot of the push behind different interpretations of separation of powers? I mean, that's one. The cynical explanation for the conservative push on dialing back the administrative state is precisely this.

The belief that the federal judiciary is likely to be more conservative for the foreseeable future and administrative agencies are going to be more dominated by Democrats and people sympathetic to the Democratic agenda. I mean, does that suggest that that's really kind of at bottom the only real stakes of those kinds of cases?

The belief that the federal judiciary is likely to be more conservative for the foreseeable future and administrative agencies are going to be more dominated by Democrats and people sympathetic to the Democratic agenda. I mean, does that suggest that that's really kind of at bottom the only real stakes of those kinds of cases?

Can we make any kind of assumptions or none? I mean, so one, you could say having an executive that has all power might be bad. But you could also just say, well, actually, even if that's true on paper, that executive could be totally boxed in by different political interest groups moving behind the scenes, kind of controlling his behavior.

Can we make any kind of assumptions or none? I mean, so one, you could say having an executive that has all power might be bad. But you could also just say, well, actually, even if that's true on paper, that executive could be totally boxed in by different political interest groups moving behind the scenes, kind of controlling his behavior.

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?

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?

Also, Will can respond to that, but also like arrangements that formally look the same at two different times can work really well at one time and very badly at another time, depending on how underlying the societal power divisions change, right?

Also, Will can respond to that, but also like arrangements that formally look the same at two different times can work really well at one time and very badly at another time, depending on how underlying the societal power divisions change, right?

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.