Is Partisan Gerrymandering of Congressional Elections Unconstitutional Under the Original Meaning?
Mike Rappaport
The Supreme Court has now accepted certiorari in two partisan gerrymandering cases, in which a political party has allegedly used its power to draw district lines to favor its electoral chances. One case involves congressional districts (Benisek), the other involves state districts (Gill). The usual way of thinking about these cases is that originalists believe […]
Reviving the Nondelegation Doctrine
Mike Rappaport
The Supreme Court has accepted certiorari in a case that raises a nondelegation doctrine question (as well as several other issues). In Gundy v. United States, the nondelegation issue involves the federal Sex Offender Notification and Registration Act ("SORNA"). The Act relates to the requirement that sex offenders register their status. In one provision of […]
Administrative Law Judges and the Constitution
Mike Rappaport
Recently, there has been controversy in the federal circuit courts about the constitutionality of the current arrangements for administrative law judges (ALJs), and now the Supreme Court has accepted cert in the Lucia case which raises some of these issues. There are two main questions that these cases raise: whether the appointment of the ALJs […]
Originalism and Corpus Linguistics
Mike Rappaport
This past weekend I attended a BYU conference on Corpus Linguistics at the beautiful Sundance Resort in Utah. It was a great setting to discuss the application of this field to originalist constitutional interpretation. As I have previously mentioned, corpus linguistics is a part of linguistics which uses databases and sophisticated software to study the […]
Originalism, Minorities, and Women
Mike Rappaport
At the Originalism Conference recently, Christina Mulligan presented a well received paper on the objections to originalism from racial minorities and women and how such objections might be addressed. It was an interesting paper and canvassed the whole range of objections, without asking whether or not they were well considered. While it is annoying for […]
The Gresham’s Law of Law
Mike Rappaport
In economics, Gresham’s Law is the law that say “bad money drives out good money.” In law, there is a similar law – deviant or problematic lawmaking drives out orthodox or legitimate lawmaking. This occurs in both constitutional law and administrative law. Let’s start with constitutional law. The law of the Constitution is supposed to […]
Moreno on the Original Meaning and Brown v. Board of Education: Part II
Mike Rappaport
In yesterday’s post, I discussed Paul Moreno’s claim that originalism does not support the Brown decision. I argued that it is not true that all scholars agree with that conclusion. Here are some of the reasons why a scholar might believe that the original meaning supports Brown: 1. Moreno writes: “The same Congress (the 39th) […]
Moreno on the Original Meaning and Brown v. Board of Education: Part I
Mike Rappaport
On the book review section of the Liberty Law Site, Paul Moreno reviews David O'Brien’s Justice Jackson’s Unpublished Opinion on Brown v. Board of Education. While I agree with some of what Moreno says, I must take exception with his claims about the original meaning and Brown. Moreno writes: [As a law clerk] Rehnquist prepared […]
Nonconstitutional Adjustments and the Carpenter Case
Mike Rappaport
I have written three prior posts on the Third Party Doctrine and the Carpenter Case – see here, here, and here. My basic, tentative take, is that under the original meaning, cell phone customers probably aren't currently protected by the Fourth Amendment, but that they could be protected by the actions of states, of the […]
The Original Meaning and the Carpenter Case: Establishing Joint Ownership of Customer Records
Mike Rappaport
In my last post, I discussed whether the federal statute conferring protection of customer cell phone information, including location information, is sufficient to render such information a paper or effect. My answer is that, based on my limited research, I am a bit skeptical that such information constitutes a paper or effect. The terms paper […]