Greg Weiner on Limiting the Court, Empowering Congress
Michael Ramsey
At Liberty Law Blog, Greg Weiner: The Constitutional Work Before Us. From the introduction: The Supreme Court is lost. Sunday night’s debate settled that. The question now is not how to save the Court but rather how to navigate an adverse one, and the answer is to deprive it of power. And in conclusion: The […]
The Inconsistency of Justice Scalia’s Originalism
Mike Rappaport
With the passing of Justice Scalia, various critics of the justice have made a sport of trying to point out areas where the justice might not have lived up to his own originalist principles. I certainly think it is important for all justices, especially originalist justices, to follow originalist principles. But I don’t approve of […]
Constraining the White House Staff
Mike Rappaport
We live in a world where an increasing number of things that are supposed to be done by the Congress are done by the executive. Treaties are supposed to be approved by the President with the ratification of two thirds of the Senate, but the President makes many agreements on his authority based on a […]
Constitutional Change, Article V, and the Presidential Election
Mike Rappaport
Recently, I did a podcast interview on Constitutional Amendments and the Presidential Election. The interview, which was conducted by the National Constitutional Center, also featured David Strauss of the University of Chicago. Jeff Rosen, the President of the National Constitution Center and a Professor at George Washington Law School, was the interviewer. It was an […]
Jonathan Adler on the Emoluments Clause and Hillary Clinton
Michael Ramsey
At Volokh Conspiracy, Jonathan Adler: Is the Emoluments Clause a problem for Hillary Clinton? The issue is whether the Clinton Foundation’s acceptance of gifts from foreign governments while Hillary Clinton served as secretary as state violated [the foreign emoluments clause] (assuming, of course, that gifts to the Foundation were, in some sense, also gifts to her). […]
Originalism, Changing Meanings, and Stable Meanings
Mike Rappaport
One of the criticisms of originalism by historians is that originalism fails to take into account that word meanings change over time. In particular, historians argue that during important periods, such as the time leading up to the Constitution, word meanings changed. Therefore, originalism is problematic because it assumes that traditional word meanings are stable. Unfortunately, […]
The Tiers of Scrutiny: A Public Choice Analysis
Mike Rappaport
In a prior post, I discussed Justice Clarence Thomas’s criticism of the Supreme Court’s tiers of scrutiny jurisprudence. Given Thomas’s criticism of the tiers as both made up and inconsistently applied, one might wonder why the Supreme Court follows this approach. My explanation is one that relies on a public choice theory of the justices. The […]
Justice Thomas on the Tiers of Scrutiny
Mike Rappaport
In a prior post, I noted Jeffrey Toobin’s criticism of Justice Clarence Thomas for Thomas’s claim that since the New Deal, the Supreme Court’s constitutional doctrine has become an ‘unworkable morass of special exceptions and arbitrary applications.’” Interestingly, Toobin never argues that Thomas’s claim is mistaken. Toobin seems to feel that voicing the criticism of […]
Is SCOTUS a Good Reason to Support Trump?
Mike Rappaport
Reason.com has a piece by Damon Root asking various libertarian and conservative legal experts what they think about the matter. There are a range of answers. Here is my response: I certainly believe that the future of the Supreme Court is "a reason" to support Trump. There are no assurances, but I do believe it […]
Ilya Somin on Richard Primus on Gary Johnson and Originalism
Michael Ramsey
In response to Richard Primus' claim that libertarians should not be originalists, Ilya Somin at Volokh Conspiracy: Gary Johnson, libertarianism, and originalism, Professor Somin writes: In this article from last year, I explained in greater detail why there is considerable congruence between libertarianism and originalism. Enforcement of the original meaning certainly would not give us a […]