Originalism and Positivism: The Problem of Interpretive Contestation
Mike Rappaport
I have written various posts about originalism and positivism. Perhaps the academic who has written the most about interpretive approaches and positivism is Matt Adler from Duke, but I have relatively neglected his articles. It is not a mistake I will make again. I strongly recommend a recent article of his – Interpretive Contestation and Legal […]
Andrew Hyman: The Substantive Role of Congress Under the Equal Protection Clause
Michael Ramsey
Andrew Hyman (The Institute for Intermediate Study) has posted The Substantive Role of Congress Under the Equal Protection Clause on SSRN. Here is the abstract: The authors of the Fourteenth Amendment deliberately wrote that no state may deny the equal protection “of the laws” rather than “of its laws.” This may seem nowadays like a small difference, […]
Is Griswold v. Connecticut Consistent with the Original Meaning?
Mike Rappaport
Griswold – which held that married couples had a constitutional right to use contraceptives – is an extremely popular case. Supreme Court nominees usually feel the need to approve of the decision in their confirmation hearings (just as they feel the need to say approving things about originalism or at least not to disagree with […]
Is Originalism the Law?: The Constitution in Exile Problem
Mike Rappaport
Note: Yesterday, I put up a post on Steve Sachs's new paper addressing the issue whether originalism is the law. In it I reference, an earlier post I did on his paper. By mistake, that earlier post had been put up only on the Liberty Law Blog, not on the Originalism Blog. Sorry about. So here […]
Is Originalism the Law?: The Basis of Nonoriginalism
Mike Rappaport
In my last post on Steve Sachs’s new paper, I noted that Steve argues that one can have nonoriginalist rules enforced even though originalism is the law. I wrote: To illustrate his point, he imagines a hypothetical society where there is a law that says the people may not eat creatures that feel pain. The people in […]
The Recess Appointments Decision Part IV: The Motivations Underlying Justice Breyer’s Practice Based Decision
The day after the Noel Canning case involving the Recess Appointments Clause came down, the Federalist Society held a teleforum conference on the issue. I was on a panel with Noel Canning’s attorney in the Supreme Court, Noel Francisco, as well as Professor Kristin Hickman from Minnesota Law School. Kristin raised an interesting point. She argued that […]
Randy Barnett on the Declaration of Independence
Michael Ramsey
At Volokh Conspiracy, Randy Barnett: The Declaration of Independence Annotated. From the conclusion: The assumption of natural rights expressed in the Declaration of Independence can be summed up by the following proposition: “first comes rights, then comes government.” According to this view: (1) the rights of individuals do not originate with any government, but preexist […]
The Recess Appointments Decision Part III: How Protective Are Pro Forma Sessions Against Improper Recess Appointments
Mike Rappaport
While people who favor the original meaning of the Recess Appointments Clause were disappointed by the majority decision in Noel Canning, some people argue that at least the Court’s holding as to pro forma sessions puts a significant check on executive power. According to this view, the Senate can simply hold pro forma sessions every […]
The Recess Appointments Decision Part II: Pro Forma Sessions Are Not Real Sessions
Mike Rappaport
In my first post, I noted that I thought Justice Breyer’s decision was wrong on all three grounds based on the original meaning of the Constitution. This may surprise some people who believe that the third ground of the Court’s decision – that the pro forma sessions were real sessions and therefore the recesses were not […]
The Recess Appointments Decision Part I: Nonoriginalism and Originalism
Mike Rappaport
The Supreme Court’s recess appointments decision in Noel Canning was largely a disappointment from the perspective of originalism and the original meaning of the Recess Appointments Clause. There were three issues involved in the case: (1) the type of recess issue (whether a recess appointment could be made only during an intersession recess or also […]