Originalism and Article III Judicial Power
Mike Rappaport
One of the most difficult challenges for originalism is to determine to what extent the Constitution limits the adjudication of matters by entities other than Article III federal courts. This is an especially timely issue, because there is an important debate about the administrative state, and a significant part of the administrative state involves adjudication […]
Unifying Original Intent and Original Public Meaning
Mike Rappaport
John McGinnis and I have just published a new article on Original Methods Originalism, the interpretive theory that we have developed. In this post, I wanted to describe the first part of the article. In a second post, John will describe the latter part of our piece. One of the significant challenges for originalism is […]
Our Fiduciary President
Mike Rappaport
One important area of constitutional law involves the Take Care Clause of the Constitution. Unfortunately, there is a great deal of disagreement about the Clause’s meaning. Happily, at the Originalism Works in Progress Conference held at the University of San Diego School of Law last February, a new paper on the subject, "'Faithful Execution' and […]
Original Original Intent
Mike Rappaport
One of the great scholars of the American Constitution from a historical perspective was David Currie. Here is a short excerpt from the Green Bag and the University of Chicago Law School Record about Currie's views on originalism. PAUL A. CLARK: You have said that in the early nineteenth century everyone agreed that “the Constitution […]
The Ninth Amendment and the Federalist Interpretation
Mike Rappaport
Andrew Hyman writes a response to my post that the Ninth Amendment refers to natural rights, although it does not protect them as constitutional rights. Hyman offers a different interpretation of the Ninth Amendment, one I call the Federalist interpretation (which I referred to in my earlier post). Hyman argues that the: Amendment means the […]
How Old is Originalism?
Mike Rappaport
Michael Greve recently published a piece entitled Originalism as Ideology which criticizes originalism and argues that it may have “run its course.” Greve’s essay covers a lot of ground, but I thought it might be useful to discuss one key aspect of it that is of wider concern: how old is originalism? According to Greve, […]
Does The Ninth Amendment Constitutionally Protect Unenumerated Rights?
Mike Rappaport
Recently, I wrote a couple of posts on whether the Privileges or Immunities Clause protected unenumerated rights. In my view, the Clause does protect such rights, but in a disciplined way. This naturally raises the question whether another part of the Constitution—the Ninth Amendment—also protects unenumerated rights. Here I want to explain my view that […]
The Unbearable Wrongness of Slaughterhouse
Mike Rappaport
In my last few posts, I have been arguing that it is problematic to continue to apply the Slaughterhouse Cases, because the majority decision is so wrong. It belongs in the worst category of Supreme Court cases, cutting the heart out of a key constitutional provision and leading the Court to employ nonoriginalism to compensate […]
Mark Pulliam’s Defense of Slaughterhouse: A Response
Mike Rappaport
After Mark Pulliam responded to my post, I replied with the post below. Mark Pulliam has graciously responded to my post on the Slaughterhouse Cases. As readers will remember, Pulliam argued that the Slaughterhouse Cases should continue to be followed out of fear of the mischief that would be produced by overruling it. I argued […]
Mark Pulliam and the Old Originalism
Mike Rappaport
I have been a little late in publishing some posts on Privileges or Immunities, so Mike Ramsey has reported on some responses to my posts (on the Liberty Law Blog) before I even published the posts here. Today and tomorrow I will be publishing two posts that were early parts of the conversation. Below is […]