Jeffrey Love & Arpit Garg: Presidential Inaction and the Separation of Powers
Michael Ramsey
In the current issue of the Michigan Law Review, Jeffrey A. Love (J.D., Yale Law School, 2012) and Arpit K. Garg (J.D., Yale Law School, 2012) have the article Presidential Inaction and the Separation of Powers (112 Mich. L. Rev. 1195). Here is the abstract: Imagine two presidents. The first campaigned on an issue that requires […]
Constitutional Amendments – Once Again
Mike Rappaport
I have written several posts on the constitutional amendment process, but I cannot let Eric Posner’s new piece for Slate magazine pass without comment. Eric’s piece is an excellent example of the conventional wisdom that the constitutional amendment process is too difficult – a wisdom that I believe is seriously mistaken. Eric writes that “any proposal to amend the […]
A Right to an Unanimous Jury at the State Level: Incorporating the Sixth Amendment Jury Trial Right
Mike Rappaport
The Constitutional Accountability Center, which often puts forward originalist arguments, has a petition for certiorari arguing in favor of full incorporation of the Sixth Amendment Jury Trial Right. In the 1972 Apodaca v. Oregon case, the Court in a 4-1-4 decision held that while the Sixth Amendment required a unanimous jury to convict in federal court, it did not […]
Frank Buckley on Imperial Presidents
Michael Ramsey
In USA Today, Frank Buckley (George Mason Law School): King Obama our latest monarch: Separation of powers prevents Congress from reining in imperial presidents. From the introduction: Unlike real kings, American presidents are elected, but they nevertheless enjoy powers a king would envy. George Mason, who declined to sign our Constitution in 1787, predicted this. […]
Evaluating Justice Black
Mike Rappaport
My last post argued that Justice Hugo Black was not the most overrated justice and in fact was a first rate justice. I thought I would comment here on attempts to rate Justice Black as a justice – a matter that was recently debated by Will Baude and David Bernstein of the Volokh Conspiracy. I always have a hard time with lists of great justices […]
Was Justice Black the Most Overrated Justice? No way!
Mike Rappaport
Cass Sunstein has a column arguing that Justice Hugo Black “who served from 1937 to 1971, is the court’s most overrated justice.” I strongly disagree with Sunstein (hardly the first time); I think Black is one of the best justices who served during the middle of the 20th century. Sunstein likes Black’s generally liberal decisions, but he […]
President Obama’s Decision to Sign and Not Enforce
Mike Rappaport
Recently, President Obama signed a bill into law and then announced that he would not enforce (or at least feel bound by) a provision in the bill. Once again, President Obama has aggressively asserted executive power – in a way that prior Presidents have, but that he and Democrats criticized before he became President. The law prohibited admittance to […]
Originalism and McCutcheon Part III: Does Congress Have Power to Regulate Campaign Contributions?
Mike Rappaport
For the first two posts in this series, see here and here. My last post on originalism and McCutcheon will address whether Congress has the power to pass laws that restrict campaign contributions. This is a complicated area and one that I have not studied. So take what I say with some caution. There are at least two […]
Originalism and McCutcheon: Part II — Possible Alternative Bases for Protecting Contributions
In my first post, I discussed how one might conclude that the meaning of “abridging the freedom of speech” could cover laws that prohibited or restricted gifts earmarked for purposes of speech. In this post, I want to discuss a couple of alternative ways that one might use to protect such campaign contributions: (1) freedom […]
Originalism and McCutcheon: Part I: The Meaning of Abridging the Freedom of Speech
Mike Rappaport
Mike Ramsey writes that the opinions of the plurality and Justice Thomas in McCutcheon v. FEC do not employ an originalist methodology. Regarding Justice Thomas’s opinion, Mike writes: The question is not whether, as a matter of some abstract principle, contributions are or are not speech. I doubt there is a single answer to that question, and I doubt […]