The Problems With Declaring Procedurally Valid Constitutional Amendments to be Unconstitutional
Mike Rappaport
In a recent post, I discussed the movement in much of the world to declare constitutional amendments that are otherwise procedurally valid to be unconstitutional on the ground that they violate implicit or extra constitutional norms. Here I want to discuss why, in the American context and perhaps in other countries, that is such a […]
Corpus Linguistics Arrives At the Supreme Court
James A. Heilpern
[Editor's note: For this guest post we welcome James Heilpern, Law & Corpus Linguistics Fellow at the J. Reuben Clark Law School, Brigham Young University.] As Mike Rappaport explained in a previous post, “corpus linguistics is a part of linguistics which uses databases and sophisticated software to study the ‘real life’ use of language.” In 2011, Justice Thomas […]
The Original Meaning and The Exclusionary Rule
Mike Rappaport
In his recent concurrence in Collins v. Virginia, Justice Clarence Thomas argues that the exclusionary rule for Fourth Amendment violations should not be applied against the states. He states that even the Supreme Court has acknowledged that the rule is not a constitutional rule. And he argues further that at the time of the Constitution, […]
Epstein on Self Pardons
Mike Rappaport
Note: I posted this on the Liberty Law Blog about 10 days ago, before much of the subsequent commentary here and elsewhere on the issue, but I thought I would post here anyway. In the Wall Street Journal, eminent law professor Richard Epstein, who is certainly not a Trump partisan, argues that the President can […]
Unconstitutional Constitutional Amendments
Mike Rappaport
Throughout the world, constitutional courts have asserted ever increasing powers. One of the most significant areas involves the claimed judicial power to declare otherwise perfectly constitutional amendments to be unconstitutional, because the judges believe they are not in accord with constitutional norms. This recent article describes the issue: Courts around the world—from Bangladesh to Belize, […]
The Importance of Experts
Mike Rappaport
Lynn Uzzell has criticized the positive reactions of both originalists and nonoriginalists to Mary Bilder’s book, Madison’s Hand (which argues that Madison doctored his notes). While I agree with some of what Uzzell says, unfortunately she fails to appreciate the importance of developing a strong originalist theory that will win the debate among experts. Let me […]
Finding The Law
Mike Rappaport
At the time of the Constitution’s framing, the common law was understood as something that judges discovered. Judges were not making law, they were finding it. But with the advent of legal realism and other modern movements, this understanding came to be rejected as untrue and unsophisticated. Instead, judges were thought to be engaged in […]
Justice Thomas vs. Justice Gorsuch
Mike Rappaport
Recently, I noted that Justices Thomas and Gorsuch had voted consistently with one another. I wrote: In the 19 cases since Gorsuch has been on the court, he has voted with Justice Thomas — the Court’s most originalist justice — in every one of them. When Justice Thomas dissents, Justice Gorsuch joins the dissent. When […]
The Compactness Solution to Gerrymandering
Mike Rappaport
In my last post, I concluded that Ned Foley's argument that the original meaning prohibits partisan gerrymandering does not work. This is really very regrettable, since I believe that partisan (and other types of) gerrymandering is extremely problematic. I do have a solution to the problem of gerrymandering, but unfortunately it requires that the legislatures […]
Partisan Gerrymandering and The Original Meaning of “Election”
Mike Rappaport
In my last post, I presented Ned Foley’s argument that partisan gerrymandering of congressional elections violates the Constitution’s original meaning. His basic argument was that such gerrymandering prevents the House of Representatives from fulling its role in the structure of government of allowing the people to select new representatives every two years. While Foley’s argument […]