Originalism Conference — Submission Deadline
Mike Rappaport
This is just a reminder that the deadline for submitting papers for the 5th Originalism Works in Progress Conference to be held this February is the end of August (this weekend!).
The Bases for Originalism
Mike Rappaport
Over the years, three different approaches have been developed for grounding originalism. 1. The first approach involves a normative argument for originalism. Under this approach, one argues that originalism is the normatively best way to interpret the Constitution. There are various versions of this approach. Justice Scalia argues that only originalism leads to clear rules […]
A Bridge Too Far: Reverse Incorporation
Mike Rappaport
Over at Prawfsblog, Kurt Lash has a post on Incorporation of the Establishment Clause. Kurt did pioneering work on this issue back in the day, work which is rightly esteemed. In the first part of his post, Kurt argues that people at the time of the 14th Amendment understood the meaning of the Establishment Clause differently […]
Historians and Originalists
Mike Rappaport
Part One of this post was originally written several days ago, but I forgot to cross post it here. I then wrote Part Two yesterday. Part One One of the continuing disputes that originalists have is with historians. Very few historians are originlists, and many have no respect for the enterprise at all. It is […]
The President Does Not Have a Constitutional Power of Prosecutorial Discretion
Mike Rappaport
Recently, D.C. Circuit Judge Brett Kavanaugh has argued that the President enjoys a constitutional power of prosecutorial discretion. Mike Ramsey appears open to the possibility that the President has this power. I am not an expert on this issue, but I have reviewed much of the literature and I am puzzled as to why people believe that […]
Pratheepan Gulasekaram on Immigration Federalism Post-Arizona
Michael Ramsey
At the ACS Blog, Pratheepan Gulasekaram: Immigration Federalism Post-Arizona. A good overview of appeals court litigation on the issue, with this observation: … [T]hese recent cases reify the trend of employing statutory (rather than structural) preemption analysis to answer immigration federalism questions. Following the lead of Arizona and Whiting, circuit courts applied the Supreme Court’s […]
Protecting Private Information from Being Accessed Improperly
Mike Rappaport
In the debate over how much information the government should be able to collect from people, defenders of government acquiring significant amounts of information argue that the information cannot be accessed unless there is a good reason for doing so, such as acquiring information against a terrorist threat. Critics, however, counter that there is no […]
Libertarian Nonoriginalism
Mike Rappaport
In my earlier post on activist liberal nonoriginalism, I discussed the methodology of this interpretive approach, which basically pursues liberal political principles to the extent that the Court can get away with it. At the end of the post, I indicated that I wanted to discuss other kinds of nonoriginalism in the future. So here […]
Law, Politics, and Liberal Nonoriginalism
Mike Rappaport
Recently, I started following a constitutional law professor listserv for the first time in many years. The listserv is dominated by a certain form of liberal nonoriginalism that might be called activist. One justice who I believe reflects this approach was Justice Brennan, but some current members of the Court might be included in this […]
Amy Coney Barrett: Precedent and Jurisprudential Disagreement
Michael Ramsey
Amy Coney Barrett (Notre Dame Law School) has posted Precedent and Jurisprudential Disagreement (Texas Law Review, Vol. 91, No. 7, 2013) on SSRN. Here is the abstract: This Article, a contribution to a symposium on constitutional foundations, maintains that an unappreciated function of stare decisis is that of referee between competing visions of theConstitution. Stare […]