Gouverneur Morris’s Rewriting of the Constitution
Mike Rappaport
Recently, the Center for the Study of Constitutional Originalism held its annual Works-in-Progress Conference. One of the papers was written by Dean William Treanor of Georgetown Law School. (Both Bill and I were at Yale Law School as students and we both wrote originalist student notes, though from very different perspectives.) Bill’s paper “Framer’s Intent: […]
The Relevance of the Preamble to Constitutional Interpretation
Mike Rappaport
The preamble to the United States Constitution is something that is widely employed within political and theoretical arguments but is virtually never relied upon in court cases interpreting the Constitution. Is this treatment correct under the Constitution’s original meaning? The preamble provides that “We the People of the United States, in Order to form a […]
Parchment Barriers and the Determinateness of Constitutional Text
Mike Rappaport
Recently, Jonathan Gienapp, a Stanford historian, has published what is likely to be a widely read book on constitutional interpretation. Second Creation: Fixing the Constitution’s Meaning in the Founding Era argues that there was no agreement on how to interpret the Constitution at the time of the Constitution’s enactment and that standard interpretive positions only emerged […]
Why Supreme Court Judging Is Not Necessarily Partisan
Mike Rappaport
I recently came upon this review of Richard Brookhiser’s new biography of Chief Justice John Marshall by Yale Professor John Fabian Witt. The review criticizes Brookhiser’s take on Marshall as a justice who furthered the law and originalism rather than politics. Instead, Witt believes that Marshall’s judicial career was defined by the goal of advancing […]
Michael Dorf, Precedent, and the Original Meaning
Mike Rappaport
Recently, Michael Dorf wrote an interesting post about originalism and precedent. Dorf’s post raises some significant points about this crucial area for originalists. Here I would like to explore and answer some of Dorf’s questions while explaining my own theory of precedent. My theory, which John McGinnis and I developed in our book Originalism and […]
Debating Original Methods Originalism
Mike Rappaport
Recently, Jack Balkin wrote a critique of Original Methods Originalism, the interpretive approach to original meaning that John McGinnis and I have developed. His approach was based on the new book by Jonathan Gienapp, The Second Creation, which argues that it took some time after the Constitution’s ratification for the interpretive rules governing the Constitution […]
Acting Appointments and the Constitution’s Original Meaning
Mike Rappaport
There has been much controversy over the naming of Matthew Whitaker, the Chief of Staff of former Attorney General Sessions, to be Acting Attorney General. Whitaker was not serving in a position that required the advice and consent of the Senate. So the question is whether Whitaker can be named as Acting Attorney General when […]
More on Birthright Citizenship: Nonoriginalism Allows the Denial of Birthright Citizenship but Originalism Does Not
Mike Rappaport
The debate on birthright citizenship continues. But I find it frustrating in two ways. First, nonoriginalists continue to ignore that there is a very reasonable case to be made that nonoriginalism denies birthright citizenship. Second, some critics of birthright citizenship, who purport to write from an originalist perspective, continue to argue that the original meaning […]
Birthright Citizenship: Originalism and Nonoriginalism
Mike Rappaport
President Trump has put the Fourteenth Amendment’s Citizenship Clause in the news. The question is whether the language in the Amendment—“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States”—provides citizenship to the children of illegal or undocumented aliens who are born in the United […]
Prohibiting Court Packing by Constitutional Amendment
Mike Rappaport
Jim Lindgren has proposed a constitutional amendment that would constitutionalize the nine-member Supreme Court. The key language is: The size of the Supreme Court of the United States shall be nine members, consisting of one Chief Justice and eight Associate Justices, though from time to time one or more of these nine offices may be […]