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 […]
Jessie Allen: Blackstone, Expositor and Censor of Law Both Made and Found
Michael Ramsey
Jessie Allen (University of Pittsburgh – School of Law) has posted Blackstone, Expositor and Censor of Law Both Made and Found (Blackstone and His Critics (Wilfrid Prest and Anthony Page, eds., Hart Publishing, forthcoming) on SSRN. Here is the abstract: Jeremy Bentham famously insisted on the separation of law as it is and law as […]
Original Methods Originalism Part III: The Minimization of the Construction Zone Thesis
Mike Rappaport
In this third post on Original Methods Originalism, I want to conclude by explaining how original methods has the potential for signficantly limiting the discretion that judges exercise under an originalist approach. One of the key issues in recent originalist theory involves the distinction between interpretation and construction. For my purposes, it is not the […]
Original Methods Originalism Part II: The Convergence Thesis and the Language of the Law Thesis
Mike Rappaport
In my last post I discussed the basic idea of original methods originalism and the different versions of that interpretive approach. Here I want to note a very significant implication of Original Methods Originalism: the possible convergence of original intent and original public meaning. I then want to discuss another aspect of original methods – […]
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 […]
Who are Officers of the United States? The Inadequacy of the Buckley Standard
Mike Rappaport
Jennifer Mascott gave a talk at the University of San Diego Originalism Center on her new paper, which is to be published in the Stanford Law Review, on Who are the Officers of the United States? The paper engages in originalist research on an important topic that modern originalist scholars have largely neglected: how to […]