Delegation and Polarization
Mike Rappaport
In a recent post, I wrote about how allowing the President to initiate war-making did not merely promote more wars, but also caused the Congress to become infantilized, not having an incentive to take responsibility for decisions about war. This problem results from not following the Constitution’s original meaning in the separation of powers […]
The Consequences of Allowing Presidents to Ignore the Declare War Clause
Mike Rappaport
While most criticisms of nonoriginalism focus on the creation of constitutional rights that do not exist in the document, the failure to follow the original meaning concerning the separation of powers should receive more attention. In particular, the failure of the courts and, in areas where the courts do not typically decide matters, the political […]
Primus on the Inaccuracy of Madison’s Notes
Mike Rappaport
In my last post, I discussed the implications for originalism if Madison’s Notes are inaccurate. In this post, I will discuss some commentary by Richard Primus, one of the leading originalist critics, about why originalists might be upset about the inaccuracy of the diary. Primus acknowledges that original public meaning originalists should not be much […]
Does Inaccuracy in Madison’s Notes Matter?
Mike Rappaport
Constitutional historian Mary Bilder has a new book entitled Madison’s Hand: Revising the Constitutional Convention, which argues that Madison’s Notes, which are the principal source of the Philadelphia Convention’s activities in drafting the Constitution, were revised more extensively than most people realize. While I have not read Bilder’s book yet (but here is a brief […]
Calabresi on the Goodness of Federalism and Presidentialism in the U.S. Constitution
Mike Rappaport
While many of us greatly value the United States Constitution, there are numerous critics of the Constitution including in the United States. In particular, the critics argue that other countries should not attempt to emulate the U.S. Constitution. Two features of the U.S. Constitution have been subject to scrutiny: its establishment of a federalist system […]
Lawson on the New Originalism
Mike Rappaport
In a new article by Gary Lawson discussing Jim Fleming’s book on constitutional theory, Lawson takes issue with a well known claim by Keith Whittington about the new and old originalism that Fleming accepts. (For one discussion of the new originalism, see here.) Whittington had claimed in 2004 that: The new originalism is distinct from […]
Brown, Jim Crow and Originalism
Mike Rappaport
Michael Dorf recently argued that originalism cannot justify Brown v. Board of Education (1954) and any constitutional interpretive theory that fails to justify Brown should be rejected. His argument has provoked many responses. One response has been to question the claim that any single result should determine the acceptability of a constitutional theory. Any constitutional interpretive theory that limits interpreters will […]
Originalism and the Stability of Constitutions
Mike Rappaport
In a previous post, I discussed the view of Barry Weingast and his coauthors as to what makes for the stability of a constitution. Weingast argued that there are three basic conditions needed for constitutional stability. First, the Limit Condition: having a constitution that imposes significant limitations on what the government may do, so that people […]
Does the Constitution Allow a Female President? Originalism Says Yes. Some Types of Nonoriginalism May Say No.
Mike Rappaport
This might seem like an odd question, but a journalist recently asked me my opinion about the matter. It turns out that Article II of the Constitution refers to the President as a him. For example: “He shall hold his Office during the Term of four Years.” If this “he” meant only a male person, […]
The Stability of Constitutions
Mike Rappaport
What makes for the stability of a constitution? In the United States, we take stability for granted, but “the median country faces violent political change about once every eight years.” So what promotes constitutional stability? Over the past several years, Barry Weingast has argued (along with some other authors, especially Sonia Mittal) that there are three basic conditions […]