Does Originalism Constrain Judges?
Mike Rappaport
One of the criticisms made of originalism is that an originalist methodology does not constrain judges. Recently, I heard a nonoriginalist critic of originalism claim that an originalist judge can reach any result that he desires. Even if we interpret this claim as exaggeration, I still believe that the claim is unfounded. It is certainly […]
Seventh Originalism Works in Progress Conference
Mike Rappaport
Recently, the Originalism Center at the University of San Diego held its Seventh Annual Originalism Works-in-Progress Conference. Each year we videotape all of the proceedings for those who are interested in viewing the conference. This year’s proceedings are here. The following papers were given: 1. Will Baude (Chicago) and Stephen Sachs (Duke), The Law of […]
Mark Graber’s Critique of Justice Scalia’s Jurisprudence
Mike Rappaport
Over at Balkinization, Mark Graber recently had a post entitled “Justice Scalia's Orwellian Jurisprudence,” which claimed that Scalia paraded as an advocate of judicial restraint, but was actually an activist. Graber also claims that Scalia said he was an originalist, but ignored originalist history. While Graber’s post has some legitimate criticisms of Scalia, which I […]
Jack Balkin’s Response on Liberal Constitutional Theory
Mike Rappaport
In my previous post, I noted that Jack Balkin had argued that liberal constitutional theorists are likely to adopt more activist constitutional theories if Justice Scalia’s vacancy is filled by a liberal justice. I argued that this would be improper, as it would involve the constitutional theorists engaging in strategic behavior rather than a principled […]
Strategic Changes in Constitutional Theories
Mike Rappaport
Jack Balkin agrees with Eric Posner that if the Democrats fill the seat vacated by Justice Scalia, there will be a significant change in liberal arguments: The liberal constitutional theories of the past twenty-five years had to come to terms with a conservative majority that had no qualms about using judicial review to promote conservative […]
Gans on Reconstruction and Affirmative Action
Mike Rappaport
At Balkinization, David Gans criticizes one of my earlier posts concerning original meaning and affirmative action, where I argued that the Freedmen’s Bureau Act does not provide support for the constitutionality of affirmative action under the 14th Amendment. Gans makes two points: First, he claims that in the debates over the federal race-conscious measures of […]
Who Are the True Heirs of the Reconstruction Republicans?
Mike Rappaport
In a post at Balkinization, Mark Graber criticizes the five more conservative justices on the Supreme Court, seeking to link them to the Democrats who championed slavery: Roberts Court justices and their allies take the post-bellum Democratic position on constitutional equality. During the debates over the Second Freedmen’s Bureau Bill, Republicans insisted that Congress could […]
Constraining Executive Illegality Through an Advisory Court
Mike Rappaport
Under the Obama Administration, the executive branch has engaged in numerous actions where it has refused to follow statutes – either on the grounds that the statute implicitly allows it discretion or that the Constitution renders the statute unconstitutional. As has often been noted, these actions are often quite questionable on a legal basis. But there […]
Lash on the Fourteenth Amendment
Mike Rappaport
In my view, the hardest part of the Constitution’s original meaning to understand is the 14th Amendment. While we have made great progress in understanding this provision, we unfortunately do not yet have a satisfactory theory of the Clause. One of the scholars who has written about the Amendment is Kurt Lash. Kurt has written […]
Checking the Government with Anti-Severability Provisions
Mike Rappaport
The federal government has been arguing that the terror attacks in Paris and San Bernardino require that it be able to circumvent encryption of messages, something they have sought for a long time. A cynic might argue that they see their opportunity and are seizing it. But let's assume that they actually need the access […]