Can the President Pardon Himself?
Mike Rappaport

Recently, the question whether the President can pardon himself has been in the news.  I have always found that to be a difficult question.  But unfortunately the framing of the question these days often leads people to misunderstand the issue. The Pardon Clause provides the President “shall have power to grant reprieves and pardons for […]

David Weisberg on John Mikhail and Original Meaning
Michael Ramsey

David Weisberg comments:  John Mikhail’s paper, “The Definition of 'Emolument' in English Language and Legal Dictionaries, 1523-1806”, is a quintessential, paradigmatic illustration of the illogic that flourishes when one ignores what I have identified in my paper, “Originalism is Dead…Long Live Identicalism”, as the Paradox of Originalism.    The Paradox can be stated thusly: If […]

Justice Thomas’ Doubts on Qualified Immunity and Regulatory Takings
Michael Ramsey

Concurring in this week's qualified immunity case Ziglar v. Abbasi, Justice Thomas (citing Will Baude) raised a fundamental question about the originalist basis of the doctrine (some quotations and citation omitted): I write separately …  to note my growing concern with our qualified immunity jurisprudence. The Civil Rights Act of 1871, of which §1985(3) and the […]

Living Constitutionalism on the Supreme Court’s Website
Mike Rappaport

Six years ago, I wrote a post about how the Supreme Court’s website adopted the language of the Living Constitution approach.  (I had been expanding on a post by Eugene Volokh.)  It was curious that Justices Scalia and Thomas, as well as other fellow travellers of originalism, including the Chief Justice, would allow this language […]

Original Methods Originalism Part I: The Basic Idea and the Different Versions
Mike Rappaport

One approach to constitutional originalism is called original methods originalism, which John McGinnis and I have developed.  While the theory has received significant attention, the overall relationship of the different parts of the theory have not always been understood.  Therefore, I thought it would be useful in a couple of posts to discuss various aspects […]

Defining Officers of the United States
Mike Rappaport

In Jennifer Mascott’s new paper, Who are the Officers of the United States?, she argues that the definition of an officer was much broader than the Buckley standard of significant authority pursuant to the laws of the United States and that it included positions with ministerial duties.  I think the evidence that the paper discusses […]