Will Bode

You'd 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 about 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.

You'd 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 about 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.

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.

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.

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 in ways we'll be able to accept what all the evolution is. And you might call that, I don't know, Article 5.

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 in ways we'll be able to accept what all the evolution is. And you might call that, I don't know, Article 5.

I think that's the best way to coordinate around rules of change for the document. And that would, again, lead you to a kind of originalism. And I take it the response 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.

I think that's the best way to coordinate around rules of change for the document. And that would, again, lead you to a kind of originalism. And I take it the response 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 V.

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 V.

And until we can coordinate around that, constitutional law is kind of stuck in this place where it's not doing what it's trying to do. Is that the problem?

And until we can coordinate around that, constitutional law is kind of stuck in this place where it's not doing what it's trying to do. Is that the problem?

Yeah, it's the whole thing. I mean, the kind of 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, and that law and economics had not been invented when the Sherman Act was written, and therefore it must be something else.

Yeah, it's the whole thing. I mean, the kind of 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, 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.

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, you know, more neutral judges handling these cases. Nobody's actually dug in to try to explain what the general law of antitrust as of the 1990s was, but that's the right move.

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, you know, more neutral judges handling these cases. Nobody's actually dug in to try to explain what the general law of antitrust as of the 1990s was, but that's the right move.