Dementia and The Presidency
Mike Rappaport
Last week's debate led many people, both Democrats and Republicans, to question President Joe Biden's cognitive abilities — to wonder whether he has a serious case of dementia that renders him unqualified to serve as President. I take no position on that question but the mere possibility that it is true raises serious constitutional questions. […]
The First Amendment’s Restrictions on Congress
Mike Rappaport
I agree with almost all of Mike Ramsey's discussion of how the First Amendment restricts the judiciary and executive. But at the end of his post, Mike seems to admit that self enforcing treaties — treaties that do not require Congress to pass implementing legislation — would not be restricted by the First Amendment. Perhaps […]
Kavanaugh’s Mistakes About Post Ratification History
Mike Rappaport
There is a lot to talk about in the various Rahimi opinions. The Court is clearly engaged in a serious discussion about how to do originalism. Here I want to react to a couple of things that Justice Kavanaugh said in his concurring opinion – statements that relate to the legitimacy of considering post ratification […]
Good Originalism, Bad Policy
Mike Rappaport
Over at Law and Liberty, I have an essay on the CFPB v. Community Financial Services Assoc. case involving the meaning of the Appropriations Clause. The essay, entitled Good Originalism, Bad Policy, begins: On the surface, the Supreme Court’s recent decision in Consumer Financial Protection Bureau v. Community Financial Services Association represents a triumph of […]
The Original Meaning of the Equal Protection Clause: The Failure to Enforce the Law Based on Political Position
Mike Rappaport
In the last generation or so, tremendous progress has been made answering what I regard as the hardest original meaning question – the original meaning of section one of the 14th Amendment. One important discovery is that to the extent that the 14th Amendment affords general protection against unequal laws, it comes from the Privileges or […]
The Original Meaning Regarding Presidential Immunity: A Preliminary View
Mike Rappaport
I have not really studied this issue in depth – and so my view should be understood as tentative and preliminary – but here goes. My bottom line is some form of constitutional presidential immunity is certainly a plausible view as a matter of precedent. How could it not be given the (unenumerated) […]
Our Gerontocracy: Judicial Age and Term Limits
Mike Rappaport
Retired Justice Stephen Breyer has recently called for age and term limits for Supreme Court justices. While I don’t often agree with Breyer, this is an exception. I favor term limits for Supreme Court Justices – 18 year terms for each justice applied to future appointments through a constitutional amendment. This would largely solve the […]
Our Gerontocracy
Mike Rappaport
As has frequently been noted, the leadership of our country in the presidency, in Congress, and at the Supreme Court has become much older in recent years. This is a cause for concern. Various constitutional reforms might be adopted to address this trend. In this post, I begin with the simplest reform – one that […]
The Proper Way to Allow Expansions or Contractions of the Size of the Supreme Court (Updated)
Mike Rappaport
Back when Court packing was being widely discussed, I wrote this post but never published it. I recently came upon it again and decided it was worth publishing. Initially, I put up an earlier draft of the post by mistake. Sorry for the confusion. Recently, many Democrats have been arguing for expanding the size of […]
The Originalist Disaster in Trump v. Anderson
Mike Rappaport
The Supreme Court has decided by a 9-0 vote that former President Donald Trump cannot be kept off the ballot. In my view, the reasoning in the opinion is a disaster, with the Court managing to repeat its originalist disaster in Chiafolo. While I agree with the Court that Trump cannot be disqualified, it is […]