John McGinnis and Michael Rappaport: Sunstein on Interpretive Choice: A Critique
Mike Rappaport
Over at Divided Argument, John McGinnis and I have a guest post that criticizes Cass Sunstein’s argument that the Constitution does not specify how it is to be interpreted and therefore one should use normative considerations to select an interpretive method. First, we argue that: Sunstein’s contention – that the Constitution’s failure to specify […]
Bradley and Ramsey on Early Practice
Mike Rappaport
Mike Ramsey asks an interesting question about Curtis Bradley’s new paper: if post-ratification political actors in fact embraced intuition and consequentialist considerations rather than text and original understanding, isn't that a reason for originalists to sharply discount post-ratification practice? Post-ratification practice is relevant to original meaning only if post-ratification actors were trying to discern and […]
Ramsey, Calabresi, and Interbranch Appointments
Mike Rappaport
Mike Ramsey takes issue with Steve Calabresi’s argument that interbranch appointments of executive officials – for example, judicial appointments of prosecutors – are unconstitutional. Ramsey maintains that the text of the Appointments Clause indicates that interbranch appointments are constitutional. After all, the Clause provides that: “but the Congress may by Law vest the Appointment of […]
Originalist Analysis of the Citizenship Clause by AI
Mike Rappaport
At the Volokh Conspiracy, Eugene Volokh discusses Supreme Court caselaw holding that American citizenship can only be lost through an intent to give it up. I have long wondered whether that accords with the original meaning of the 14th Amendment but have never had the time to investigate it. So I thought I would ask […]
Court Packing
Mike Rappaport
Mike Ramsey notes the criticism by Steve Calabresi of the Biden Administration’s establishment of a commission to study reforming the Supreme Court. Ramsey, who served on the Commission, pushes back on Calabresi’s argument. He writes: As a former member of the Commission, I don't see anything improper about it. The President should be able to […]
The Past Year in Originalism
Mike Rappaport
At Law & Liberty, I have an essay on the past year in originalism. Every year at the beginning of the Hugh & Hazel Darling February Works-in-Progress Conference, I discuss what I regard as the most significant developments concerning originalism in the past year. The essay is a slightly revised version of my presentation. Perhaps […]
Are Bipartisan Commissions Constitutional?
Mike Rappaport
President Trump has fired two of the Democratic members of the FTC. While the removal restrictions have been widely discussed and may be struck down, a separate question is whether the bipartisan provision of the FTC Act — requiring the commission to be composed of members from different political parties — is constitutional. This will […]
The Originalist Mess that is the Majority Opinion in US v. Arthrex
Mike Rappaport
Over at the Notice & Comment Blog, I have an essay that criticizes Chief Justice Roberts's majority opinion in Arthrex: In U.S. v. Arthrex, the Supreme Court in an opinion by Chief Justice Roberts held that administrative patent judges (APJs) were not inferior officers for purposes of the Appointments Clause since their decisions were not […]
My Views on Birthright Citizenship with a Nonoriginalist Argument Against Birthright Citizenship
Mike Rappaport
Given the attention focused on birthright citizenship, I thought I would discuss my position. Overall, I am something of a moderate on the issue, taking what are regarded as both pro-immigration and anti-immigration positions.* First, I believe that the original meaning of the 14th Amendment requires birthright citizenship largely for the reasons that Mike Ramsey […]
John McGinnis & Michael Rappaport:The Constitution Neglected
Mike Rappaport
Over at Law and Liberty, John McGinnis and I have a review of Jonathan Gienapp’s new book Against Constitutional Originalism. As with our review of his prior book, we are strongly critical of Gienapp’s argument: With his new book Against Constitutional Originalism, Stanford historian Jonathan Gienapp has garnered effusive praise from those eager to undermine the originalist […]