Gary Lawson on Proving the Law
Mike Rappaport
I received this book – Evidence of the Law: Proving Legal Claims – in the mail and am looking forward to reading it. Gary Lawson, of course, is a leading originalist and an expert in administrative law. I use his first rate Administrative Law casebook. In Evidence of the Law, Gary discusses the fact that […]
Do Liberals Want Conservative Nonoriginalists?
Mike Rappaport<br.
Over at the Volokh Conspiracy, Randy Barnett, as an aside, asks liberals the following question: Why would you possibly want a nonoriginalist “living constitutionalist” conservative judge or justice who can bend the meaning of the text to make it evolve to conform to conservative political principles and ends? However much you disagree with it, wouldn’t […]
Has Originalism Been Tried?
Mike Rappaport
Last weekend was the annual Originalism Works in Progress Conference at the University of San Diego. It was another very enjoyable and productive event. University of Michigan Law Professor, Richard Primus, who is a nonoriginalist and was in attendance, had some kind words to say about the conference in a recent blog post: I spent […]
The Language of the Lame Duck Pardon Amendment
Mike Rappaport
A short while ago, I wrote a post advocating that we amend the Constitution to eliminate lame duck pardons. While such a reform might seem small, it would be beneficial, it might secure the bipartisan support necessary to enact an amendment, and it would revive the moribund amendment process which is necessary to a beneficial […]
Sunstein’s Critique of Originalism
Mike Rappaport
In his most recent column, Harvard Law Professor Cass Sunstein criticizes originalism: But originalism is just one of many possible approaches to the Constitution. If it is taken seriously, there is a good argument that it would produce results that most Americans would despise — and that any Trump nominee should be asked about. For […]
Let’s Pass a Constitutional Amendment Prohibiting Lameduck Pardons
Mike Rappaport
I believe that the constitutional amendment process is essential to originalism and to a desirable constitutional law. One of the most disturbing things about recent generations is that no constitutional amendment has been proposed and ratified since the 26th Amendment guaranteeing the right to vote to 18 year olds was enacted 1971. (The 27th Amendment […]
More on Radical and Moderate Originalism
Mike Rappaport
My last post distinguished between radical and moderate versions of originalism. This post discusses a few more aspects of the distinction and assesses my own views as radical or moderate. First, one sees the original and moderate versions assumed in debates about originalism. Some people claim that originalism would require radical changes in existing doctrine, and […]
Radical and Moderate Originalism
Mike Rappaport
Here I want to draw a distinction between two types of originalism: between a radical originalism and a more moderate originalism. The radical originalist believes that the Constitution’s original meaning establishes a regime that is extremely different from the current legal regime. The easiest way to get a radical view is through a strong federalism. […]
The Foreign Emoluments Clause II: Inferences from the Interpretive Rules
Mike Rappaport
In my previous post concerning the Foreign Emoluments Clause, I provided evidence from Rob Natelson that the term emolument had narrower and broader meanings. The narrower meanings would cover money and benefits from an office, whereas the broader meanings might cover any benefit or advantage whatsoever. In terms of whether the Clause would cover arms-length […]
The Foreign Emoluments Clause I: Some Evidence of Historical Usage
Mike Rappaport
The Foreign Emoluments Clause has received some attention recently in connection with President-Elect Donald Trump’s decision to maintain some of his business assets. One question that arises is whether Trump’s businesses might conflict with the Clause if they engage in arms-length commercial transaction with a foreign government. One reason to believe the Clause would not […]