Originalism, Double Jeopardy, and the Dual Sovereignty Doctrine
Mike Rappaport
Over at the Volokh Conspiracy, Orin Kerr notes the cert petition, coauthored by UCLA legal historian Stuart Banner, arguing that the dual sovereignty doctrine of double jeopardy law – which holds that a prosecution by the state for a crime does not bar the federal government from prosecuting for the same crime, and visa versa — conflicts with […]
Peter Martin Jaworski: Originalism All the Way Down: Or, the Explosion of Progressivism
Mike Rappaport
Peter Martin Jaworski (Georgetown University) has posted Originalism All the Way Down: Or, the Explosion of Progressivism (Canadian Journal of Law and Jurisprudence, Forthcoming) on SSRN. Here is the abstract: At least on its face the very same problems of interpretation apply to the written judgments of the Supreme Court as apply to written constitutions and […]
The Fourth Amendment in the 21st Century
Mike Rappaport
Over at NRO, Andrew McCarthy criticizes Rand Paul’s new legislation that provides that: 1. The collection of citizen’s phone records is a violation of the natural rights of every man and woman in the United States, and a clear violation of the explicit language of the highest law of the land. 2. The Fourth Amendment to the Constitution […]
Greg Weiner on Judicial Restraint and Originalism
Mike Rappaport
I enjoyed Greg Weiner’s post on the Judicial Dilemma of Originalism, which has received some attention. Greg does a strong job of describing the conservative case for judicial restraint (as the competitor to conservative originalism). My problem, however, is that I don’t really understand the conservative case for judicial restraint. Greg writes: It arises from man’s status as a […]
Originalism, Recess Appointments, and The SG’s Noel Canning Cert Petition
Mike Rappaport
As many readers know, the Solicitor General’s Office has sought cert in the Noel Canning Recess Appointments case. Solicitor General briefs are supposed to be the best of the best, but in reviewing the brief I have found a problem: At the least, the SG’s Office has made an assertion without adequate support and in […]
Originalism and Affirmative Action Part II: The Weakness of The Critics’ Argument
Mike Rappaport
In my last post, I started to discuss the arguments made by various academics who maintain that the original meaning of the Constitution clearly allows affirmative action. Their arguments are based on a set of federal statutes passed at the time of the 14th Amendment that are said to have provided race based benefits to blacks. […]
Originalism and Affirmative Action Part I: The Critics’ Argument
Mike Rappaport
Recently, I completed a draft of an article on affirmative action and the original meaning of the 14th Amendment. I thought I would put up a couple of posts on the article. For the syllabus or to download the article, see here. While I did not write the article with the University of Texas v. Fisher case in mind, […]
Jack Balkin on Originalism and Living Constitutionalism
Mike Rappaport
Jack Balkin has posted an essay from a conference held in Jerusalem on his new book Living Originalism. One can only marvel at the number of conferences and symposia on the book. As many readers know, Jack is an advocate of originalism, but of a different type of originalism. Under Jack’s view, originalism is compatible with living […]
Natelson: The Origins and Meaning of Vacancies that May Happen During the Recess in the Constitution’s Recess Appointments Clause
Mike Rappaport
Robert G. Natelson (The Independence Institute & Montana Policy Institute) has posted The Origins and Meaning of 'Vacancies that May Happen During the Recess' in the Constitution's Recess Appointments Clause on SSRN. Here is the abstract: There has been longstanding uncertainty about the meaning of “the Recess” and “Vacancies that may happen” in the Constitution’s Recess Appointments Clause. […]
Sean Croston: The Chairman or the Board
Mike Rappaport
This paper address an issue that I have often mentioned to my Administrative Law classes, but which has been neglected. The abstract does not suggest an originalist inquiry, but clearly the issue would be relevant to a textualist and originalist approach. For the past 130 years, Congress has alternated between two competing structural visions […]