Constitutional Structure and the Modern Commerce Power
Mike Rappaport
In my previous post, I wrote of how a broad commerce power is inconsistent with two significant structural features of the Constitution. The first structural feature is that one should not read one enumerated power so broadly as to render the enumeration of all of Congress’s powers pointless. If a broad commerce power places no […]
Josh Blackman on Marijuana Laws and Executive Enforcement Discretion (and my Doubts)
Michael Ramsey
At Josh Blackman's Blog, Josh Blackman: Congress, Not The President, Can Exempt States From Federal Marijuana Laws. From the introduction: Last year, Attorney General Holder issued “guidance” urging federal prosecutors to avoid enforcing marijuana laws in states that have decriminalized marijuana. Similar to the immigration context, I think such a categorical suspension of the law can hardly […]
The Modern Commerce Power
Mike Rappaport
One of the fixtures of modern constitutional law is an extremely broad commerce power (founded on both the Commerce Clause and the Necessary and Proper Clause). Prior to US v. Lopez in 1995, this commerce power seemed to be essentially unlimited. After Lopez, the commerce power is now only largely unlimited. While Lopez placed limits […]
Judge Easterbrook Delivers Inaugural Scalia Lecture at Harvard
Michael Ramsey
From Harvard Law Today: Judge Easterbrook delivers inaugural Scalia lecture: ‘Interpreting the Unwritten Constitution’ (with video). Here's the background: On Monday, Nov. 17, Judge Frank Easterbrook of the Seventh Circuit Court of Appeals kicked off an inaugural lecture series named after his old friend, colleague and intellectual compatriot, Justice Antonin Scalia, who attended the talk titled […]
The Meaning of the Equal Protection Clause
Mike Rappaport
Over at the Originalism Blog, Andrew Hyman has a post discussing the meaning of the Equal Protection Clause. While modern law treats the Clause as protecting against all unequal laws, that is not the way the language reads. The language says no state shall deprive any person of the equal protection of the laws. Thus, the language […]
Another Argument for Originalism
Mike Rappaport
In the past, I have noted that there are three main arguments for originalism: 1. Originalism as an interpretive theory (the most accurate meaning of the original document); 2. Originalism as a normative theory (the most normatively desirable interpretation of the Constitution); and 3. Originalism as positivism (the original meaning is the law). Here I […]
The Sixth Annual Originalism Works-in-Progress Conference
Mike Rappaport
Every February, the Center for the Study of Constitutional Originalism at the University of San Diego holds the annual Hugh and Hazel Darling Works-in-Progress Conference. The conference brings together many of the leading originalist scholars, both advocates and critics of originalism. This year’s conference – the Sixth – is being held on February 20-21 at the University of […]
The Dormant Commerce Clause and the Exclusive Commerce Power
Mike Rappaport
Mike Ramsey has another post about the Dormant Commerce Clause (DCC), following up on my previous post and this post by Mike Greve. Mike Ramsey attempts to set forth the strongest arguments against the DCC, with which I agree. There is no good original meaning argument for the DCC. There is, however, a somewhat stronger argument for an exclusive Commerce Power. […]
The Dormant Commerce Clause
Mike Rappaport
Mike Greve and Mike Ramsey both have interesting posts on McCulloch v. Maryland and the Dormant Commerce Clause. Here are my views: 1. In McCulloch, the Supreme Court held that federal institutions such as the Bank of the United States were immune from discriminatory state taxes. I have long been skeptical of this opinion. The federal government has the […]
The Court’s Alleged Power to Ignore the Original Meaning
Mike Rappaport
In the past, I have been critical of the claim that positivism and the rule of recognition requires originalism. Instead, my view has been that the rule of recognition allows both originalism and nonoriginalism. But I hope that my criticism of the case for originalist positivism has not obscured one very significant accomplishment of this argument. I believe […]