An Important Difference Between Historians and Originalist Law Professors
Mike Rappaport
Recently, I was having a discussion with a law professor who looks at matters from a historical perspective. While such law professors are not professional historians, many of them have adopted the historian's perspective. During our discussion, one aspect of the dispute between historians and originalist law professors became crystal clear. When historians are making […]
Ratifying the Constitution and the Bill of Rights Was More Peculiar Than Most People Realize
Mike Rappaport
Note: While most readers of this blog are likely to know this story, I thought I would post it just in case. Most people know that there were 13 original states that declared independence from Great Britain. But the Constitution changed things and that caused significant actions in our early constitutional history to occur with […]
Amanda Tyler and the Original Meaning of the Habeas Corpus Suspension Clause
Mike Rappaport
While the original Constitution certainly had some defects — especially that it allowed slavery — it was in many ways an amazingly protective document. It was a classical liberal document that strongly defended many individual rights. This fact is often obscured by today’s debates. Take gay marriage. The normal take — which may be wrong […]
Protecting Traditional Rights with the Ninth and Fourteenth Amendments
Mike Rappaport
In my last post, I explored in what way Hayek might be thought of as an originalist. I wrote that Hayek relied to a significant extent on the 9th Amendment and the Privileges and Immunities Clause for his claim that the Constitution was intended to protect traditional principles that were not textually listed. In this […]
Was Hayek an Originalist?
Mike Rappaport
Two of my academic interests – one might even call them obsessions – have been Friedrich Hayek and Originalism. So, it is natural that I have long thought of writing about whether Hayek was an originalist. But now 11th Circuit Court Judge William Pryor has written an article on the closely related subject “Hayek and […]
Kennedy, Kavanaugh, and Recess Appointments
Mike Rappaport
The likely replacement of Justice Anthony Kennedy is Brett Kavanaugh. Commentators have focused on what changes to the Court’s decisions this new appointment will make. While most Supreme Court observers focus on politically charged cases, such as cases involving abortion or affirmative action, I am very much concerned with methodology and with more mundane separation […]
A Commentary on Holmes’s Lochner Dissent: Part II
Mike Rappaport
In the first part of this post, I started my commentary on Holmes’s Lochner dissent. Here I continue it. As before, Holmes's dissent is in italics, my commentary is in normal print. The other day, we sustained the Massachusetts vaccination law. Jacobson v. Massachusetts, 197 U.S. 11. [Holmes here lists various other decisions.] Some of […]
A Commentary on Holmes’s Lochner Dissent: Part I
Mike Rappaport
Oliver Wendell Holmes’s Lochner dissent is perhaps the most famous dissent in all of constitutional law. Some people regard it as great, either because it criticizes the majority decision in Lochner or because it defends a certain restraint-oriented jurisprudence. Others regard is as awful, sometimes for the same reasons. It is only two paragraphs in […]
Judge Kavanaugh
Mike Rappaport
So it was Judge Kavanaugh. I haven’t studied his opinions, but from what I know of him Kavanaugh is very smart and an originalist. As compared to the other potential nominees, Kavanaugh also had the advantage of many years on the bench. You appear to know what you are getting with Brett Kavanaugh. One of […]
Saul Cornell’s Unfair Criticism of Originalists and Mike Ramsey
Mike Rappaport
Originalist critic Saul Cornell has written a new blog post attacking originalism. Cornell’s principal claim in this piece is that originalists misunderstand anti-originalist criticisms of originalism and his focus is my friend and colleague, Mike Ramsey. While Ramsey has ably defended himself, I wanted to discuss a couple of claims that Cornell makes: his claim […]