More on Judicial Activism
Mike Rappaport
Mike Ramsey responds to my engagement with his prior post on judicial activism. Mike has two main arguments for his understanding of judicial activism as the strong exercise of judicial review rather than as an unjustified exercise of judicial review: (1) people disagree on what is an unjustified exercise of judicial review, and (2) judicial […]
Judicial Activism
Mike Rappaport
Mike Ramsey claims that judicial activism should be defined as "as judges being 'active' in the sense of aggressively intervening against the judgments of other branches of government (in contrast to judges being 'passive' — or 'restrained' – and generally deferring to the constitutional judgments of other branches)." Under that view, originalism will sometimes require judges to […]
Gerard Magliocca On Congress’s Emergency Powers
Mike Rappaport
Gerard Magliocca has an interesting post on the powers exercised by the 39th and 40th Congresses after the Civil War. His list of the powers they exercised is worth repeating: Consider some of what Congress did between 1865 and 1868: 1. Excluded the ex-Confederate States from the House and Senate. 2. Imposed martial law on many […]
The Founders and Competition Between the States
Mike Rappaport
In a recent post, Mike Ramsey discusses the justifications for federalism and how they connect with the protection of individual liberty. He writes about how the enactors of the Constitution mainly supported limited federal powers on the ground that the states would be closer to the people and would more reflect their local values. By contrast, he […]
Originalism 101
Mike Rappaport
Recently, Larry Solum put up a Legal Theory Lexicon entry on Originalism. For those who are not familiar with these entries, they are short discussions of legal theory topics for first year law students. They are quite excellent and are helpful for legal scholars well beyond the first year of law school. In this post, I […]
Two from Randy Barnett
Michael Ramsey
Randy E. Barnett (Georgetown University Law Center) has posted two interesting originalist-oriented essays on SSRN. The first is Interpretation and Construction (Harvard Journal of Law and Public Policy, Vol. 34, 2011) on SSRN. Here is the abstract: In recent years, it has become apparent that there is a difference between (a) discovering the semantic meaning of […]
Originalism in the Blogs
Michael Ramsey
Saul Cornell goes a couple of rounds with Mike Rappaport and experiences total meltdown. Mary Dudziak comments at Legal History Blog: How Not to Criticize Originalism. My take: Professor Cornell had some interesting points to make about eighteenth-century interpretation in the second half of this article, but he's taking this debate way too personally, and it shows in a number of […]
Historian, Cure Thyself
Mike Rappaport
Over at the Faculty Lounge, Saul Cornell has another post criticizing me. Like his previous post, Saul’s post is filled with overheated rhetoric – more on this below. He responds to a post I wrote about a different historical paper regarding historical method and freedom of the press. At the end of my post, I […]
Historical Inquiry and Legal Concepts
Mike Rappaport
Over at the Faculty Lounge, historian Saul Cornell has a guest post criticizing my recent post. In that post, I had criticized Richard Epstein’s freedom of speech interpretation based on a singular police power. I said: First, it is not clear that the police power concept was in existence as a concept in 1789. They […]
Patrick Charles and Kevin Francis O’Neil Respond
Mike Rappaport
Recently, I wrote a blog post reacting to Patrick J. Charles and Kevin Francis O’Neil's new article. They wrote a response, which I am posting below. While I don't agree with all of their points, I will refrain from responding today. This post is their chance to make their argument: In a thoughtful reply to Saving […]