Historians and Originalists Part III: The Hard Case of Discovering the Original Meaning of the 14th Amendment
Mike Rappaport
In my last post, I want to discuss hard constitutional clauses – clauses where the original meaning of the constitutional provisions are extremely difficult to understand. In these cases, one might expect that the skills of the professional historian would be the most valuable. Yet, in the case of the 14th Amendment – in my […]
Historians and Originalists Part II: The Adequacy of Originalist Scholarship
Mike Rappaport
In a prior post, I discussed some of the disagreements between historians and originalists. I argued that more information is generally better than less information and therefore both groups of scholars are likely to make contributions as to constitutional interpretation. Here I want to examine the relative contributions of the two groups and in particular […]
Historians and Originalists Part I: The Context of the Debate
Mike Rappaport
In recent years, there have been acrimonious debates – both formal and informal – between these two groups. Historians have viewed law professor originalists as engaged in an amateurish attempt to understand historical meanings that is often result oriented. Originalist law professors have viewed the historians as protecting their own turf by endlessly lecturing the originalists […]
Mary Bilder on Constitutional Originalism
Mike Rappaport
There have been a couple of blog posts on Professor Mary Bilder’s op ed on Originalism and the Constitution, including one by Larry Solum and one by John McGinnis. I don’t mean to pile on, but there are some important questions that remain to be addressed. Mary Bilder is an important law professor who is […]
Lawrence Solum: The Constraint Principle
Michael Ramsey
Lawrence B. Solum (Georgetown University Law Center) has posted The Constraint Principle: Original Meaning and Constitutional Practice on SSRN. Here is the abstract: Originalism is a family of constitutional theories (almost all of which) agree that the original meaning of the constitutional text should constrain constitutional practice. Call this idea the “Constraint Principle.” Provisionally, the Constraint […]
The Take Care Clause and the Equal Protection Clause
Mike Rappaport
I was talking about the Take Care Clause today and I realized that there was an important connection between the original meaning of two clauses I had never previously recognized: the Take Care Clause and the Equal Protection Clause. Most people don’t see much of a connection, but there is an important connection as to […]
Gorsuch Nods
Mike Rappaport
Note: I wrote this post last week at the Liberty Law Blog before I saw Chris Green's post on the same subject. While Chris and I agree (no surprise there), happily the posts do make some different points. I haven’t been able to catch too much of the Gorsuch hearings, but I have heard some […]
What Was the Common Law Right to an Impartial Jury at the Time of the Constitution?
Mike Rappaport
In my last post, I argued that Justice Thomas’s dissenting originalist opinion in Pena-Rodriguez v. Colorado required that one view the Constitution as written in the language of the law. Thomas viewed the Sixth Amendment right to an impartial jury as deriving its content from the common law that existed at the time of the […]
The Language of the Law and Pena-Rodriguez v. Colorado
Mike Rappaport
Recently, John McGinnis and I completed a paper entitled The Constitution and the Language of the Law. The basic question addressed is whether the Constitution is written in ordinary language or in the language of the law. But what turns on this question? The Supreme Court’s recent controversial decision of Pena-Rodriguez v. Colorado illustrates why […]
The Constitution Is Written in the Language of the Law
John O. McGinnis
The Constitution has launched hundreds of debates about its meaning. But before these disputes can be settled an underlying clash of visions about the nature of its very language requires resolution. One view holds that the Constitution is written in ordinary language and is thus fully accessible to anyone with knowledge of the English language. […]