Daryl Levinson

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.

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 sort of modest proposal in the book about how we might think of rights as similar to votes or similar to political power in that what the purpose of rights could be is allocating power to groups as a substitute for political power along John Hart Ely process lines, but maybe in a more ambitious kind of way.

So it might be good to have a different conception of rights. And there is sort of modest proposal in the book about how we might think of rights as similar to votes or similar to political power in that what the purpose of rights could be is allocating power to groups as a substitute for political power along John Hart Ely process lines, but maybe in a more ambitious kind of way.

So there are big picture jurisprudential directions that the book suggests that I would be happy if Justice Thomas took me up on.

So there are big picture jurisprudential directions that the book suggests that I would be happy if Justice Thomas took me up on.

Maybe constitutional lawyers have this view more than other kinds. So, look, courts like built antitrust law. Everyone thinks antitrust law is functional and instrumental and can disagree somewhat about what the goals are. Is it efficiency or is it something more complex? Maybe it's balance of power. But courts have taken on that task and have built a structure of antitrust law.

Maybe constitutional lawyers have this view more than other kinds. So, look, courts like built antitrust law. Everyone thinks antitrust law is functional and instrumental and can disagree somewhat about what the goals are. Is it efficiency or is it something more complex? Maybe it's balance of power. But courts have taken on that task and have built a structure of antitrust law.

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?

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?

Was the general law functionalist in some way?

Was the general law functionalist in some way?

This seems promising. So if 19th century general lawyers in the field of antitrust could do it, why couldn't constitutional lawyers today?

This seems promising. So if 19th century general lawyers in the field of antitrust could do it, why couldn't constitutional lawyers today?

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.

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.

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.

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.