Will Bode

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.