The Interactive Constitution on the Declare War and Commander-in-Chief Powers
Michael Ramsey
The Interactive Constitution is an interesting project of the National Constitution Center, described here: In the Interactive Constitution, scholars from across the legal and philosophical spectrum interact with each other to explore the meaning of each provision of the Constitution. Here’s how the Interactive process works: Scholars are selected with guidance from leaders of the […]
New Book: The Emergence of One American Nation, by Donald Fraser
Michael Ramsey
Recently published: Donald J. Fraser, The Emergence of One American Nation: The Revolution, the Founders, and the Constitution (Fraser & Associates, 2016). Here is the book description from Amazon: Divisiveness is the hallmark of American politics today. Red state versus blue; liberal versus conservative; secular versus religious; the list goes on. Sometimes it seems we are […]
Heritage Foundation Event on Justice Scalia’s Legacy
Michael Ramsey
Via Josh Blackman, here is video of the Heritage Foundation' s event The Legacy of Justice Scalia: Remembering a Conservative Legal Titan’s Impact on the Law. Professor Blackman comments: On Thursday, May 19, the Heritage Foundation hosted an event on Justice Scalia’s legacy. Noel Francisco gave a touching keynote. My discussion on Justice Scalia’s dissents, […]
Michael McConnell on the Ninth Amendment
Mike Rappaport
One of the puzzles in constitutional law has been the original meaning of the Ninth Amendment. Some years ago, during his unsuccessful confirmation hearings, Judge Robert Bork analogized our lack of understanding of the Amendment to the situation where the language of a constitutional provision was obscured by an inkblot. He argued that since we […]
The Framers/Justices Conflation
Mike Rappaport
Recently, Justice Stevens gave a speech about Justice Scalia. At the end, Stevens relies upon an argument from historian Joseph Ellis that both Stevens and Ellis believe suggests that Thomas Jefferson was not an originalist. But as Ed Whelan points out, this is a misinterpretation. Jefferson writes: Let us [not] weakly believe that one generation […]
Balkin on Strategic Originalism
Mike Rappaport
Jack Balkin has written an interesting post commenting upon Steven Smith’s and my discussion of strategic originalism. I agree with Balkin that the effectiveness of strategic originalism would turn on the number of originalist judges and whether they are the swing justices. With only one thoroughgoing originalist justice on the Supreme Court at present, strategic […]
Strategy and Originalism
Mike Rappaport
Over at the Liberty Law Forum, Stephen Smith has an essay entitled Saving Originalism from Originalists. Smith’s article raises an extremely important issue: How do originalists cause the Supreme Court Justices to follow the original meaning of the Constitution? This is a difficult question. Smith powerfully argues that a strategic perspective is a useful way […]
Is Libertarianism the Law? Part II: Using the Modalities to Support Libertarian Results
Mike Rappaport
In this and my previous post, I argue that the constraints imposed by several liberal positivist theories do not operate to place significant limits on Supreme Court decisions. Thus, the suggestion of these theorists that the law requires judges to take actions turns out to be largely illusory. While the law under these theories does […]
Is Libertarianism the Law? Part I: The Modalities of the Law
Mike Rappaport
Many people who argue against originalism do so on the basis of legal positivism. The basic argument is that the law in a nation’s legal system is based on the rule of recognition – a rule that officials in the country accept as determining what the law is – and that the rule of recognition […]
Panel on the Scalia Vacancy
Mike Rappaport
At the University of San Diego Law School, the American Constitution Society recently held a panel discussion on the issues raised by the Justice Scalia vacancy. The panel included Don Dripps, Larry Alexander (who was plagued by laryngitis), and myself. I started off arguing that the original meaning of the Constitution does not require the […]