Symposium on the Recess Appointments Clause and the Noel Canning Case
Mike Rappaport
The Scotus Blog is having a symposium on the Recess Appointments Clause and the Noel Canning case. The symposium will last until Wednesday of this week. My own entry – “The originalist and non-originalist cases for following the original meaning of theRecess Appointments Clause” — is up. Here are a couple of excerpts: The issues raised by National Labor […]
Possible Change in the Filibuster Rule
Mike Rappaport
Senate Majority Leader Harry Reid is threatening to change the filibuster rule to allow a majority to end a filibuster of presidential nominees waiting for a vote on senatorial confirmation. Under the existing rules, such confirmation votes can be filibustered, with cloture of the filibuster requiring 60 votes. A change in the Senate rules (like […]
Barnett on the NSA Data Seizure
Mike Rappaport
Randy Barnett has an interesting op ed in the Wall Street Journal arguing that the NSA’s seizure of voluminous data on U.S. citizens was unconstitutional and that the approval of the seizure by the secret FISA court was also unconstitutional. Randy makes several important points: 1. “By banning unreasonable "seizures" of a person's "papers," the […]
Rob Natelson Comments on the Indian Commerce Clause
Michael Ramsey
Rob Natelson comments on my recent post on the Indian Commerce Clause: I agree with you that the Clause is not limited to tribes outside of state lines. But Jacob Levy is not correct to be “shocked” that the Clause in some ways granted less Indian-affairs power than Congress had under the Articles and less than […]
More on the Indian Commerce Clause
Mike Rappaport
Mike Ramsey's post on Justice Thomas and the Indian Commerce Clause reminded me of something that I had written a couple of years ago about the matter. One question concerning the Indian Commerce Clause is whether it extends broadly beyond trade. Jack Balkin relied on statutes passed in 1790 and 1793, that among other things […]
David Upham and Greg Weiner: The Unconstitutionality of the New Marriage
Michael Ramsey
From a while back, but worth while — At Liberty Law Blog, David Upham: The Child's Right to His Father and Mother: The Unconstitutionality of the New Marriage. From the introduction: To my knowledge, no one in the [same sex marriage] cases has argued that the Constitution might prohibit the state and federal governments from […]
Justice Thomas’s Concurrence in Fisher v. University of Texas
Mike Rappaport
In Fisher, the Supreme Court majority clarified Grutter v. Bollinger’s holding that higher education admission plans that promote diversity by taking race into account are subject to strict scrutiny. As he did in Gutter and Parents Involved in Community Schools v. Seattle School District No. 1, Justice Thomas wrote a significant separate opinion setting forth his […]
Salinas, Griffin, and The Oddness of The Original Criminal Procedure
Mike Rappaport
There has recently been some significant discussion of Justice Thomas's concurring opinion (joined by Justice Scalia) in Salinas. See here and here and here. In his Salinas concurrence, Justice Thomas argued that the doctrine announced in Griffin v. California – that the privilege against self incrimination barred a prosecutor or judge from commenting on the fact that the criminal defendant […]
The Fourth Amendment in the 21st Century: The Modern Equivalent of Papers and Effects?
Mike Rappaport
One of the comments to my earlier post on the Fourth Amendment was interesting: These records are the modern equivalent of papers and effects. Excluding these records from the protection of the Fourth Amendment is as logically sound as excluding Internet and telephone and television communications from the protections of the First Amendment or excluding any firearm […]
Justice Thomas: Principled Conservative Originalist
Mike Rappaport
For many years, liberal critics of Justice Clarence Thomas portrayed him as an evil and unintelligent justice. He was just a conservative hack, who was not smart enough to ask a question to the learned attorneys who argued Supreme Court cases. But that portrayal is increasingly being replaced by one of the justice as a […]