Responding to Tim Sandefur
Mike Rappaport
Over at his blog, Tim Sandefur asks some questions about my new book with John McGinnis, Originalism and the Good Constitution. While I can’t answer all of his questions in a single post, let me address his first two basic points. Start with his first point: What, then, do we do about existing precedent that diverges from […]
Lexmark v. Static Control: The End of Prudential Standing?
Michael Ramsey
In Tuesday’s Supreme Court decision in Lexmark v. Static Control – largely overlooked amid the Hobby Lobby coverage – Justice Scalia (for a unanimous Court) struck a major blow against the nebulous and ill-grounded doctrine of “prudential standing.” The case is a federal statutory (Lanham Act) claim for false advertising between two makers of printer ink […]
Originalism and Judicial Review – Part II: The Textual Arguments
Mike Rappaport
For the first post in this series, see here. This post discusses the textual arguments supporting judicial review. In this area, there are two issues. The first is whether the Constitution takes priority over ordinary legislative action; the second is whether the courts get to determine whether legislation violated the Constitution. It appears that virtually everyone […]
Judicial Candor and the New Deal Settlement
Mike Rappaport
One of the interesting aspects of Supreme Court opinions is how much or little candor they exhibit. Put differently, are the justices being honest about the principles that actually govern their views? Originalists often argue that judicial nonoriginalists fail to acknowledge that they are not conforming to the original meaning (except when such nonoriginalist is […]
Originalism and Judicial Review – Part I: The Mistaken Opinion of the Previous Generation
Mike Rappaport
One of the questions asked of originalists is whether the original meaning ever clearly resolves an important constitutional issue. While I think that the uncertainty of the original meaning is overstated, it is true that many issues require further investigation. The ironic thing is that one area where the original meaning is quite clear is […]
The Growing Originalist Case for Brown v. Board of Education
Mike Rappaport
In my prior post, I noted that the unconstitutionality of Jim Crow is often mistakenly considered to be identical with the constitutionality of Brown. In this post, I want to note some new evidence that provides additional support for the constitutionality of Brown under the original meaning. As I noted, there are two issues concerning Brown […]
The Progress of Originalism as an Academic Field
Mike Rappaport
The Center for the Study of Constitutional Originalism at the University of San Diego recently had its Fifth Annual Hugh and Hazel Darling Foundation Works in Progress Conference. The videotape for the conference should be available in the near future. While we are waiting, I thought I would offer an excerpt of my remarks at the beginning […]
Why is Brown So Important?
Mike Rappaport
Will Baude recently raised the question, why is the result in Brown v. Board of Education so important? He writes: In the abstract, a legal interpretive theory ought to be able to say “theories generate results; results don’t generate theories.” In other words, it is a mistake to judge an interpretive theory simply by the moral […]
John McGinnis on Robert Bork
Michael Ramsey
At Liberty Law Blog, John McGinnis: Judge Bork's Unstoppable Ideas (excerpting from his article in the Chicago Law Review Dialogue). Michael Greve adds this comment: I yield to no one in my admiration and affection for the great judge but the tension here is obvious. Bob Bork shaped antitrust law for sure and for the good of […]
Stanford Law School Conference on Originalism
Michael Ramsey
Starting today, the Stanford Constitutional Law Center will be hosting a conference on "The Role of History in Constitutional Law." Here is the program: Friday, February 28, 2014 1:15 pm The History of the Use of History in Constitutional Law – SLS Room 190 What role has history played in previous debates about constitutional interpretation? […]