More on Andrew McCarthy and the Proposed NSA Reforms
Mike Rappaport
In my prior post, I criticized Andrew McCarthy’s criticisms of the proposed reforms of the NSA programs. Here I offer a couple of additional thoughts on McCarthy’s criticisms. McCarthy argues that the Framers would not have wanted the courts reviewing national security decisions, such as whether the executive had a good-faith national-security purpose for the search. But as […]
Reforming the NSA
Mike Rappaport
Over at the NRO, Andrew McCarthy has an interesting column on the controversy about NSA. I hope to say something about the President’s review board at some point. McCarthy’s description of the members of the board is interesting: It is composed of only five members. Three are academics: Cass Sunstein, who served as regulatory czar in […]
A Constitution for People of Differing Views
Mike Rappaport
Over at the Liberty Law Blog, I have post on how one should define optimal laws when not all of the people in one's nation have different evaluations of those laws. Here is an excerpt: To generalize the point, there are two sets of considerations that one should attend to in designing optimal institutions. First, […]
Is Originalism the Law? Part II: Is Nonoriginalism Illegal?
Mike Rappaport
In my previous post, I attempted to explicate the meaning of the Rule of Recognition and to explore whether that Rule might have forbidden originalism. I concluded that at least as of today, one cannot argue that originalism is forbidden. But is there also an argument that originalism is required and therefore that nonoriginalism is […]
Is Originalism the Law? Part I: The Rule of Recognition and The Legality of Originalism
Mike Rappaport
In the past I have written a couple of posts about the argument for originalism based on the idea that the original meaning of the Constitution is the law. In this and my next post, I was discuss this issue in the context of H.L.A. Hart’s theory of the law. The simple version of the […]
Richard Epstein: The Constitution’s Vanishing Act
Michael Ramsey
At Defining Ideas, Richard Epstein: The Constitution's Vanishing Act. From the introduction: The United States Constitution is at its core a classical liberal document. But over the last hundred years, much of it has turned into a progressive text thanks in large part to Supreme Court justices who interpret it creatively, thereby skirting the laborious […]
The Old and New Originalism
Mike Rappaport
Recently, I wrote a couple of posts that discussed a recent scholarly article. Some people wrote that the posts were a bit difficult to understand, so I thought I would discuss some of the ideas that underlay the posts. One of the significant issues within originalist scholarship is how originalist theory has changed over time. It […]
Berman and Toh on the New and Old Originalism: Part II – McGinnis and Rappaport
Mike Rappaport
(In Part I of this post, I criticized Berman and Toh’s discussion of the New and Old Originalism. Here I take issue with their treatment of my own work.) Berman and Toh also discuss my originalist work (with John McGinnis). Once again, I find the argument very problematic. They write: The generalization can be highlighted […]
Berman and Toh on the New and Old Originalism: Part I – The New and Old Originalism
Mike Rappaport
Recently, Mitch Berman and Kevin Toh have published an article entitled “On What Distinguishes New Originalism from Old: A Jurisprudential Take.” While I don’t know Toh’s work, Berman is a well respected scholar who is a critic of originalism, having penned a widely read article entitled “Originalism is Bunk.” I like Mitch, but I have […]
More on the New Filibuster Rule
Mike Rappaport
Will Baude has an interesting post on various aspects of what the Senate Democrats did, which is well worth reading. One question he asks is whether the Senate Democrats passed a new rule or simply refused to apply the existing rule, perhaps creating a precedent. Another question involves the power of the majority of the Senate to […]