Cass Sunstein on Regulatory Takings
Mike Rappaport
I have been doing a series of responses to Cass Sunstein’s criticism of the originalist Supreme Court Justices: See these posts on affirmative action, and commercial speech. This post discusses Sunstein’s criticism of regulatory takings: This is far from the only area in which they have been doing so. For example, many conservatives believe in […]
Eliminating the Absurdity in the Vice President’s Impeachment Trial: Part 2
Mike Rappaport
Having argued that the absurdity rule should apply to the situation where the Constitution allows the Vice President to preside at his own impeachment trial, let me now address more precisely what I think the effect of the absurdity rule on this issue is. For my earlier posts on this issue see here and here. […]
Mike Ramsey on Scalia and the Absurdity Rule: Part 1
Mike Rappaport
Below, Mike Ramsey responded to my post that argued that the Constitution’s textual rule allowing the Vice President to be the presiding officer at his own impeachment trial is absurd and should not be enforced. I have a couple of points to make in response to Mike’s arguments, so I will devote a couple of posts to the […]
Cass Sunstein and the Originalist Case for Commercial Speech Protection
Mike Rappaport
In my last post, I criticized Cass Sunstein's originalist case against the colorblind constitution. Here I discuss Sunstein's criticism of Scalia and Thomas for their views on commercial speech. Sunstein writes: Conservatives tend to believe the First Amendment requires courts to invalidate many restrictions on commercial advertising. But until 1976, the Supreme Court didn’t believe […]
Cass Sunstein on the Constitutionality of Affirmative Action
Mike Rappaport
Cass Sunstein has a post criticizing originalists Justice Scalia and Thomas for the alleged inconsistency of their opinions with originalism. The main focus of his article is affirmative action, about which he argues that the history of the Fourteenth Amendment “strongly” supports the constitutionality of affirmative action. But he also raises concerns about other issues, such as […]
What Libertarians Think About the U.S. Constitution Part II: Strengthening the Federal Government
Mike Rappaport
In my last post, I discussed Jason Brennan’s views of constitutionalism. Here, I want to address Jason’s claim that the U.S. Constitution was not intended to protect liberty but national power. I am not sure exactly what the Philadelphia Convention “intended.” But one obvious possibility here – in fact the one that the Federalists claimed they were pursuing […]
Does the Constitution Require That the Vice President Preside at His Own Impeachment Trial?
Mike Rappaport
Mike Ramsey has a post discussing the question of who presides at the impeachment trial of the Vice President. The Constitution “expressly provides that the Chief Justice, not the Vice President, presides over the Senate's trial of an impeached President (even though ordinarily the Vice President presides over the Senate). Obviously this exception is made […]
What Libertarians Think About the U.S. Constitution Part I: Some Reflections
Mike Rappaport
Over at the Bleeding Hearts Libertarian Blog, Jason Brennan has a post on “What Libertarians Think about the U.S. Constitution” based on his new book Libertarianism: What Everyone Needs to Know. Of course, Jason does not speak for all libertarians on this issue, and certainly not for this moderate libertarian. I plan a couple of […]
Fourth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference
Mike Rappaport
The complete list of papers and commentators for the Fourth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference is now available. The Conference is scheduled for February 15-16, 2013 at the University of San Diego School of Law. 1. Jim Allan (Queensland), Australian Originalism without a Bill of Rights: Going Down the Drain with a Different Spin […]
Originalism and Going Outside the Text
Mike Rappaport
Yesterday, Mike Ramsey discussed Stanley Fish’s review of Akhil Amar’s new book America’s Unwritten Constitution. I was planning to write something about Fish’s discussion, but Ramsey beat me to the punch and said what I was going to say. But I do want to add one point. Mike makes the following two part claim: Text-based […]