Dan Epps

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.

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.

So I think you might resist answering this question, but what would you think really internalizing these insights? Let's say we send copies of this book to one First Street, so nine copies. Every justice reads it and totally is persuaded. What should that change about how they approach their jobs? Maybe we have to put aside questions about interpretive method.

So I think you might resist answering this question, but what would you think really internalizing these insights? Let's say we send copies of this book to one First Street, so nine copies. Every justice reads it and totally is persuaded. What should that change about how they approach their jobs? Maybe we have to put aside questions about interpretive method.

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?

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?

Yeah, I mean, you could imagine some, you know, justice saying, well, we've been focusing on the wrong questions and separation of power. So I'm going to start doing a kind of power divisions in society analysis. And I'll, you know, vote for separation of powers when I think that this tracks, you know, underlying divisions and power dynamics in society. And I won't otherwise.

Yeah, I mean, you could imagine some, you know, justice saying, well, we've been focusing on the wrong questions and separation of power. So I'm going to start doing a kind of power divisions in society analysis. And I'll, you know, vote for separation of powers when I think that this tracks, you know, underlying divisions and power dynamics in society. And I won't otherwise.

Now, that seems really hard. It seems basically, you know, not at all consistent with what, you know, judges are normally able to do. And I guess that really gets at a related point, which is why are these the kinds of questions that constitutional lawyers and constitutional theorists don't usually ask? It's hard, right?

Now, that seems really hard. It seems basically, you know, not at all consistent with what, you know, judges are normally able to do. And I guess that really gets at a related point, which is why are these the kinds of questions that constitutional lawyers and constitutional theorists don't usually ask? It's hard, right?

It's really easy to look at the document and say, oh, the court's decision gives the president extra power. It's much harder to engage in the process of actually looking at the structure of the government and then saying, okay, now let's actually do the political science work and figure out who are the key decision makers behind the scenes that actually are shaping these institutions.

It's really easy to look at the document and say, oh, the court's decision gives the president extra power. It's much harder to engage in the process of actually looking at the structure of the government and then saying, okay, now let's actually do the political science work and figure out who are the key decision makers behind the scenes that actually are shaping these institutions.

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.

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.

Is there Sherman Act originalism, Will?

Is there Sherman Act originalism, Will?

So like a kind of originalist lawyer who teaches at the University of Chicago.

So like a kind of originalist lawyer who teaches at the University of Chicago.

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