John McGinnis & Michael Rappaport: An Originalist Approach to Prospective Overruling
Mike Rappaport
The final version of my paper with John McGinnis on An Originalist Approach to Prospective Overruling in the Notre Dame Law Review is now available. Originalism has become a dominant jurisprudential theory on the Supreme Court. But a large number of precedents are inconsistent with the Constitution’s original meaning and overturning them risks creating enormous […]
The State of Originalism 2023
Mike Rappaport
Every year at the Originalism Works in Progress Conference I use the time at the beginning of the conference to highlight what I regard as the more important events concerning originalism in the past year. Here are my remarks from this year's conference on Feb. 9-10. The year prior to the past one was, […]
The Spirit of a Law as an Interpretive Tool
Mike Rappaport
Sai Prakash has written a significant paper entitled Spirit which strongly argues that at the time of the Framing of the Constitution, interpreters looked to the the spirit of a document, not merely to its letter. As a result, he argues against the strict textualism of Justice Scalia. Sai presents a large amount of evidence […]
Do Baude and Paulsen Endorse a Super–Chevron Principle That Would Allow the Political Branches Power to Finally Resolve Ambiguities?
Mike Rappaport
Baude and Paulsen in their paper on Section 3 of the Fourteenth Amendment write: Finally, let us reiterate one consequence of Section Three’s breadth and capaciousness. Because Section Three’s terms possess a range of meaning, both a determinate core and a fuzzier periphery, we need a second-order rule concerning the authority of decisionmakers to act […]
Do Baude and Paulsen Properly Apply the Principle that Repeals by Implication are Disfavored?
Mike Rappaport
In their famous paper on Section Three of the Fourteenth Amendment, Baude and Paulsen consider the argument that their interpretation of section 3 may lead to disqualifications for actions protected by the First Amendment. The authors set forth three possible ways of resolving a potential conflict between the First and Fourteenth Amendments: There are, crudely, […]
Can A President Pardon Himself? Perhaps He May Not Need to Do So
Mike Rappaport
This is a recurring question in constitutional law that has never been answered by the courts. If Donald Trump wins reelection and is convicted in federal court, the occasion for such a self pardon may present itself. But perhaps Trump could accomplish the same result by an alternative route. The 25th Amendment provides: "Whenever the […]
Cass Sunstein Misunderstands Original Methods Originalism
Mike Rappaport
Over at Law and Liberty, John McGinnis has reviewed Cass Sunstein’s new book on constitutional interpretation. Mike Ramsey already posted on the review here. I just wanted to highlight an important aspect of McGinnis's review that points out a serious mistake by Sunstein. McGinnis writes that Sunstein: gets Mike Rappaport’s and my views about originalism […]
The Constitution is Written in the Language of the Law
Mike Rappaport
Mike Ramsey discusses the issue of whether the Constitution should be interpreted as a legal document or as a nonlegal document. He notes my work with John McGinnis arguing that the Constitution is written in the language of the law. Mike’s discussion gets our view entirely correct. Rather than engage in an elaborate discussion, let […]
Mike Rappaport on The Unnecessary Major Questions Doctrine
Mike Rappaport
A short while ago, I wrote an essay for Law and Liberty criticizing the Major Questions Doctrine. In the Unnecessary Major Questions Doctrine, I argue that the doctrine is both inconsistent with statutory originalism (often described as textualism). I also maintain that the doctrine is not needed to cut back on excessive actions by administrative […]
The Relevance of Railroad Rules Restricting the Carrying of Firearms
Mike Rappaport
Mike Ramsey endorses Josh Hochman's view that rules enforced by private railroads during the 19th century should be employed to determine the historical tradition of firearm regulation. I have only looked at Hochman's article briefly but I am not sure that I entirely agree. If a private entity, such as a railroad, restricts access to […]