Originalism and Same Sex Marriage — Part II: A Textualist Case Against Requiring Same Sex Marriage
Mike Rappaport
In my prior post, I mentioned that I believe there is an originalist case both for constitutionally requiring same sex marriage and for not requiring it. I briefly mentioned the case for requiring it and then noted that most originalist discussions of the case for not requiring it seemed to rely on original expected applications […]
Originalism and Same Sex Marriage — Part I: Original Meaning and Expected Applications
Mike Rappaport
It is an unfortunate aspect of modern originalism that we have such a poor understanding of the 14th Amendment. In my view, the main culprit here is nonoriginalism – in particular, that the Supreme Court and scholars have been uninterested in doing originalist research for the last 75 years of the last century and therefore we […]
The Mistaken Music Analogy
Mike Rappaport
Mike Ramsey noted Jack Balkin's post that reports on Jack's new article comparing law and music. Jack writes: It uses as its central example an actual controversy that occurred at the La Scala Opera house in December 2000, when a tenor failed to sing the high C in Verdi's Il Trovatore and the audience erupted in […]
Solum on Recess Appointments
Mike Rappaport
Larry Solum has an excellent discussion of Eric Posner's critique of the distinction between "the" and "a." Solum makes clear that the distinction can often be extremely important and informative (although whether it is depends on the context). Solum's example is powerful: Be sure to cite a case for that proposition." As opposed to "Be […]
Somin on Immigration
Mike Rappaport
Over at Open Borders, Ilya Somin argues that the original meaning of the Constitution restricts Congress's power to limit immigration. I am broadly sympathetic with Ilya's argument, but I believe that the Constitution's original meaning does not support libertarian type conclusions as much Ilya seems to suggest. It is my experience that the Constitution's original meaning usually […]
Eric Posner on the Recess Appointments Clause
Mike Rappaport
Over at Slate, Eric Posner has a piece attacking the D.C. Circuit's Recess Appointment decision in Noel Canning. Posner writes: But here’s the point. It defies belief that the founders intended to constrain recess appointments by using the word the rather than a, or by using the word happen rather than exist. If the founders had feared that the president would abuse the […]
The Rhetoric of Judicial Opinions
Mike Rappaport
My previous post on Arguments from the Future touches on an extremely important issue — the Rhetoric of Judicial Opinions. Originalism has an extremely powerful rhetorical appeal. Most people regard the original meaning of the Constitution as the real Constitution. Therefore, when someone seeks to depart from that, they are at a disadvantage. There are a variety […]
Balkin on Arguments from the Future
Mike Rappaport
Over at Balkinization, Jack Balkin has a quite interesting post about a distinct modality of constitutional argument: arguments from the future. As Jack says: This idea– that we should decide constitutional cases based on how we think the future will think of what we do today– is what I call an argument from the future. It is […]
Separating Executive and Judicial Power
Mike Rappaport
In a recent post, I discussed the fact that administrative agencies combine prosecutorial (executive) and judicial power, with the result that agencies are judges in their own cases. In this post, I want to propose a solution to the problem. One way to avoid the combination of executive and judicial power is to have two […]
Indiana’s Imminent Application for a Limited Convention
Mike Rappaport
Over at Balkinization, Gerard Magliocca writes that Indiana "is poised to pass a resolution petitioning for a national constitutional convention." The resolution calls for a limited convention — one that is "strictly confined to consideration of amendments concerning the limitation of the commerce and taxing powers of Congress." Moreover, the resolution states that at the convention each state […]