Appointing an Originalist Supreme Court Justice
Mike Rappaport
In the Weekly Standard, libertarian law professors Josh Blackman and Randy Barnett offer five recommendations to a new Republican President on how to select Supreme Court nominees. Conservative blogger and activist Ed Whelan disagrees with many of these recommendations. I thought I would weigh in on each of them. 1. Bruising confirmation battles are worth the political capital for a lifetime appointment. […]
Our Supermajoritarian Constitution – Part II: The Republican Purpose of the Supermajority Rules of the Constitution
Mike Rappaport
In my last post, I discussed how John McGinnis and I argue that the dominant character of the Constitution is that it is supermajoritarian. I explained that the three basic provisions of the Constitution – individual rights provision, the process for passing ordinary legislation, and express supermajority rules – all turn out to be supermajority provisions. In this […]
Our Supermajoritarian Constitution – Part I: The Supermajoritarian Features of the Constitution
Mike Rappaport
These days the main questions in constitutional theory involve questions of interpretation – in particular, whether one should follow the original meaning of the Constitution or its evolving meaning or some mixture of the two. (One might also see this question as involving a related question – whether one’s theory of the Constitution should be […]
Some Examples of the General Common Law
Mike Rappaport
In my last post, I noted that there has been a growing acceptance of the general common law among originalists. One way to make the basic point is that originalists have come to recognize that an important part of the legal regime that the Constitution’s original meaning established included the general common law. Let me explore […]
The New Originalism: The Emergence of the General Common Law
Mike Rappaport
Recent years has seen significant discussion about the “New Originalism,” a term which is often associated with several different trends in originalist thought. One is the shift from original intent to original public meaning. Another is the shift from a focus on constraint to other justifications for originalism. And a third is the acceptance by […]
More on Construction: A Response to Larry Solum
Mike Rappaport
In my previous post, I raised a question about originalist theories that employ the concept of construction. I wrote: The existence of construction raises an important textual question. If a matter is within the construction zone – and there is no original meaning on the question – then is it part of the Constitution? Put differently, […]
Does a Judge Who Decides a Matter within the Construction Zone Enforce the Constitution? A Question About Construction
Mike Rappaport
One of interesting questions in originalist constitutional theory is the relationship between theory and text. Some originalists focus on originalist textual arguments, while some originalists argue, as a matter of theory, for originalism, but do so based on theory. While this is a complicated matter, there is clearly room for both types of arguments. This […]
Garrett Epps in the Atlantic on Clarence Thomas
Mike Rappaport
In the Atlantic, Garrett Epps has a piece on Clarence Thomas. I like Epps. He has been to two of the Originalist Conferences that I run and his presentations and writing are lively, entertaining, and thoughtful. And his book on the 14th Amendment was quite enjoyable. But Epps's politics are far to the left of Clarence Thomas's and therefore it […]
More of Lincoln on Departmentalism vs. Judicial Supremacy
Mike Rappaport
Just when I thought was done with Departmentalism vs. Judicial Supremacy, they pull me back in again! In my last post, I quoted Abraham Lincoln’s famous statement about Dred Scott in his first inaugural: “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the […]
Six Posts on Departmentalism and Judicial Supremacy
Mike Rappaport
Yesterday, I completed my series of posts on departmentalism and judicial supremacy. My main point is that the issue turns largely on the history and that, while more research is needed, one real possibility is that the correct rule is a moderate judicial supremacy. Here are the original five posts: Departmentalism versus Judicial Supremacy – […]