The German and Dutch Founding-Era Translations of the Constitution
Mike Rappaport
Last weekend, the Center for the Study of Constitutional Originalism at the University of San Diego held its Sixth Annual Works-in-Progress Conference. I had thought I might blog about a couple of the papers. One of the papers – Founding-Era Translations of the Federal Constitution by Christina Mulligan, Michael Douma, Hans Lind and Brian Patrick Quinn – […]
The Meaning of “Legislature” on Monday
Michael Ramsey
The argument in the Arizona Legislature case is Monday 3/2. Lyle Denniston previews the case for SCOTUSblog here. George Will comments: Two reading lessons from the Supreme Court (also discussing King v. Burwell, argument on Wednesday). He thinks the case is clear: Surely … in writing the elections clause the Framers used the word “legislature” as […]
Lincoln: Slavery, Sovereignty, and Secession
Mike Rappaport
Recently, I gave a talk (along with colleague Maimon Schwarzschild) on Abraham Lincoln at the San Diego Law Library as part of their exhibit on the former President. My talk was entitled “Lincoln: Slavery, Sovereignty, and Secession,” but unfortunately due to time constraints, it was mainly on slavery. My main point about Lincoln is that […]
We the People of the United States II: The Madisonian View
Mike Rappaport
In my last post, I argued that “We the People of the United States” is best understood as referring to a single people consisting of separate states. It is not a single people in a single undifferentiated nation like France, but instead is a country that consists of individual states that are united together. This […]
We the People of the United States I: One People in a Country of Distinct States that are United
Mike Rappaport
One of the key arguments made by constitutional nationalists is that the Constitution provides that “We the People of the United States . . . do ordain and establish this Constitution.” The idea is that a single people throughout the country as a whole established the Constitution and therefore sovereignty resides at the national level […]
Originalism and Comparative Constitutional Law
Mike Rappaport
One of the challenges often made to originalism is that so many other countries do not appear to follow it. And if a large numbers of countries are not following it, then how can originalists claim that the failure to do so is illegitimate or unlawful? In my view, this criticism of originalism is much […]
Ramsey and Tillman on the Receive Ambassadors Clause
Mike Rappaport
Mike Ramsey and Seth Barrett Tillman have been debating whether House Speaker John Boehner’s invitation to Israel's Prime Minister Netanyahu to speak to Congress is unconstitutional. See also the posts by David Bernstein and Peter Spiro. Here I do not want to take a position on the issue, but just to note some interpretive […]
The Declaration of Independence and the U.S. Constitution
Mike Rappaport
What is the relationship between these documents, especially for interpreting the Constitution? There are several different possibilities. 1. Largely Unrelated. This is the conventional view in constitutional law. Under this view, one generally can ignore the Declaration when interpreting the Constitution. One justification is that the Declaration had a limited purpose – announcing to the world […]
Is Original Methods Originalism Based on a Normative Argument? A Response to Jack Balkin
Mike Rappaport
Over at Balkinization, Jack Balkin has a response to the Liberty Forum on Steve Smith’s essay on the Original Decision. In my essay, I had some critical things to say about Jack’s view and Jack pushes back against them. Unfortunately, I believe Jack appears to misunderstand the originalist theory that John McGinnis and I present in […]
The Commerce Power and Constitutional Structure: Counterarguments
Mike Rappaport
In my prior two posts here and here, I discussed why even the narrowest view of the commerce power under modern precedents – Lopez and Morrison – is inconsistent with the constitutional structure because that view renders several other enumerated powers redundant. Here I discuss whether there are any counterarguments to my position. One counterargument is that […]