A Nonoriginalist Challenge to Birthright Citizenship for Illegals: Nonoriginalist Arguments
Mike Rappaport
In my previous post, I set forth an interpretation of “subject to the jurisdiction” of the United States that is different than what I regard as the original meaning. Under this nonoriginalist view, the phrase means subject to the exclusive jurisdiction of the United States. Since the children of parents who are citizens of another country, […]
A Nonoriginalist Challenge to Birthright Citizenship for Illegals: A Nonoriginalist Interpretation
Mike Rappaport
In two prior posts on the Liberty Law Blog, I argued 1) for a large amount of legal immigration and 2) that the original meaning of the Fourteenth Amendment confers birthright citizenship, even on the children of illegal immigrants. Here, though, I want to present a nonoriginalist interpretation of the Fourteenth Amendment's Citizenship Clause – one that would deny birthright citizenship […]
The Speaker of the House of Commons Appears to Have Been Required to Be a Member
Mike Rappaport
In a prior post, I said it was not clear whether the Speaker of the House of Commons was required to be a member. A couple of scholars have now supplied evidence that strongly suggests that the Speaker was required to be a member. Andrew Hyman in a comment to my prior post noted the […]
More on the Speaker: The House Rules Require the Speaker to Be a Member and the Absence of Judicial Review
Mike Rappaport
In my prior post, I argued that it is not clear that the Constitution requires the Speaker to be a Member of the House of Representatives. Here, I thought I would mention two related issues. First, while the Constitution does not require that the Speaker be a member of the House, there is a strong argument […]
It is Not Clear that the Speaker Needs to be a Member of the House
Mike Rappaport
In a post last week, Diana Schaub argues that the Speaker of the House must be a member of the House of Representatives. Here is the initial part of her argument: There is an inescapable logic to the setting forth of the Constitution’s sections which should guide interpretation. In Article 1, Section 1, we learn that Congress […]
The Horror of Morrison v. Olson – Part III: There is No General Separation of Powers
Mike Rappaport
I want to conclude my posts on Morrison v. Olson by discussing the majority’s treatment of the separation of powers issue generally. As I mentioned in my prior posts, the majority approved the judicial appointment of the Independent Counsel and the restriction on the President’s removal of the IC through specific doctrines that involved appointment […]
The Horror of Morrison v. Olson – Part II: The Supreme Court Embarrasses Itself
Mike Rappaport
In my last post, I noted how the Supreme Court worked hard to hold the Independent Counsel statute to be constitutional, presumably on the ground that it was essential good government, only to find the political system rejecting it as poor policy a decade later. In this post, I criticize some of the arguments the Supreme […]
The Horror of Morrison v. Olson — Part I: The Supreme Court’s Felt Necessities
Mike Rappaport
Back when I first read Morrison v. Olson—the case on the constitutionality of the independent counsel statute—in 1988, I thought it was a horrible opinion. Back then I was at the Office of Legal Counsel and had a pretty strong bias in favor of the executive. But even though my views on executive power have changed […]
Enforcing the Separation of Powers: Buckley v. Valeo
Mike Rappaport
Every year, I teach the 1976 case of Buckley v. Valeo in my Administrative Law class – not the portion that involves campaign finance regulation, but the part that concerns the Appointments Clause. Congress had established the Federal Election Commission, which was an independent agency with significant power to administer the campaign finance laws. Congress, however, had […]
A Neo-Dworkinian Argument for Originalism
Mike Rappaport
A while back I did a bunch of posts on the relationship between positivism and originalism. At the time, I also planned on doing a post on Dworkinian theory and originalism, but never got around to it. I am finally doing the post. Dworkin favored an interpretive theory of law that attempted to interpret or give […]