Should We Follow the Original Meaning Because it is the Law?
Mike Rappaport
In response to my prior post on my new book (with John McGinnis), Originalism and the Good Constitution, a commentator takes issues with our argument that we should follow the Constitution’s original meaning because the Constitution is a good one that protects individual rights, democracy, and limited government. But the goodness of the Constitution is based not just […]
Ed Whelan (and Others) on Judge Posner’s “Reflections on Judging”
Michael Ramsey
At NRO, Ed Whelan comments (unfavorably) on Judge Richard Posner's new book Reflections on Judging (Harvard University Press 2013). Here is the description of the book from Amazon: In Reflections on Judging, Richard Posner distills the experience of his thirty-one years as a judge of the United States Court of Appeals for the Seventh Circuit. Surveying […]
Fifth Annual Originalism Works-in-Progress Conference
Mike Rappaport
The University of San Diego's Originalism Center is pleased to present the complete list of papers and commentators for the Fifth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference scheduled for February 21-22, 2014 at the University of San Diego Law School. 1. Christopher Green (Mississippi), Loyal Denominatorism and the Fourteenth Amendment: Reconstruction History Commentator: John […]
Linda Greenhouse’s Nonoriginalism
Mike Rappaport
In the New York Times, Linda Greenhouse defends nonoriginalism by attacking a straw man of originalism. This is par for the course, and Mike Ramsey does a great job of showing that Greenhouse’s understanding of originalism is pretty deficient. Public meaning originalists focus on the words in the Constitution, not on the speculative intentions of what the framers of […]
Originalism and the Good Constitution
Mike Rappaport
My new book, Originalism and the Good Constitution (coauthored with John McGinnis), is now available at Amazon.com (although the Harvard University Press website lists the publication date as November). The book offers a new normative defense for following the original meaning of the Constitution. The primary argument is that we should follow the Constitution’s original meaning because the Constitution […]
The Peculiarity of the Three-Fifths Rule
Mike Rappaport
The three-fifths rule of the Constitution treated slaves as three fifths of a person for purposes of representation and direct taxation. This provision is puzzling in many ways (above and beyond its connection with slavery). One common way it has confused people is that people often regard the Clause as problematic because it did not […]
Justice Scalia, Fainthearted Originalism, and Nonoriginalist Precedent
Mike Rappaport
Justice Scalia’s fascinating interview in New York Magazine has generated a significant amount of commentary. Probably the most important part of the interview for originalism is that Justice Scalia repudiated his view faint hearted originalist view. You’ve described yourself as a fainthearted originalist. But really, how fainthearted? I described myself as that a long time ago. I […]
Does the President Possess the Prerogative? Part III: The Constitution’s Limited Substitute
In my first two posts on the presidential prerogative, I discussed the nature of the prerogative and then argued that the text made the prerogative illegal. In this third post, I want to discuss what powers the Constitution does confer on the President to deal with extraordinary situations. Imagine that one is in the situation that Abraham Lincoln faced […]
Does the President Possess the Prerogative? Part II: The Textual Argument
Mike Rappaport
(In my first post, I discussed the nature of the prerogative power. Here I discuss whether it exists under the Constitution.) If one were to find a presidential prerogative in the Constitution, where would it be located? Perhaps the most common answer is that the it is given to the President in the Executive Power Vesting […]
Does the President Possess the Prerogative? Part I: Characterizing the Power
Mike Rappaport
I recently was at a Liberty Fund Conference where the issue of whether the President – in particular, Abraham Lincoln – enjoyed a prerogative. Some of the other participants argued that the President possessed a prerogative. My basic position is that the President does not have this power, but that he possesses a substitute which […]