Third Annual Originalism Works-in-Progress Conference in San Diego
Mike Rappaport
This weekend the University of San Diego's Center for the Study of Constitutional Originalism will be holding its third annual Hugh and Hazel Darling Originalism Works-in-Progress Conference. The Conference is a great event, bringing to San Diego leading scholars from throughout the country to discuss the most recent work on originalism with the Center's six […]
Patrick Henry: The Anti-Madison
Mike Rappaport
From Michael Klarman's review of Pauline Maier's book Ratification: The People Debate the Constitution, 1787-1788 in the Harvard Law Review: If Madison is the hero of Ratification, then Patrick Henry is the villain. Henry’s early and vociferous opposition to British efforts in the 1760s to assert greater control over the colonies, which put him at […]
OLC’s Recess Appointment Opinion
Mike Rappaport
In the past, I have posted here on the narrow original meaning of the Recess Appointments Clause. See here and here. I have now analyzed on the Liberty Law Blog OLC's new opinion attempting to justify President's Obama's recent recess appointments based on the idea that the Senate's pro forma sessions were spurious. While the […]
Hosanna-Tabor: Reviving the Right Question
Steven Smith
Judges and lawyers, and to a large extent law professors as well, are moved to think about the Constitution in the context of cases and controversies– of current cases and controversies– and so it is natural for us to suppose that the Constitution must be speaking to our questions. Originalists as well as others may […]
Originalism in Utah
Mike Rappaport
Mike Ramsey makes reference to originalism for state constitutions. One state constitution that appears to receive an originalist interpretation is the Utah Constitution. Over the summer, I gave a talk on originalism, derived from this article, to the Utah Bar Association, and was pleased to discover that the Utah Supreme Court appears to have adopted […]
Patrick Charles: Recentering Foreign Affairs Preemption in Arizona v. United States: Federal Plenary Power, the Sphere of Government, and the Constitutionality of S.B. 1070
Mike Rappaport
Patrick Charles (Government of the United States of America — Air Force) has posted Recentering Foreign Affairs Preemption in Arizona v. United States: Federal Plenary Power, the Spheres of Government, and the Constitutionality of S.B. 1070 (Cleveland State Law Review) on SSRN. Here is the abstract: With the Supreme Court granting certioari in Arizona v. […]
Recess Appointments: The Original Meaning and its Decline
Mike Rappaport
As I noted previously, the current law and practice of recess appointments is seriously flawed from an originalist perspective. I thought I would explain some of the problems with it and how we got here. Under existing law and practice, the President can make a recess appointment during both intersession and intrasession recesses. (An intersession […]
Originalism and Recess Appointments
Mike Rappaport
The recess appointments of Richard Cordray and a few others has taken this area of law one further step into the cesspool. Presidents of both parties have claimed the authority to make recess appointments during intrasession recesses of very brief periods. This is, as I discuss in a moment, contrary to the original meaning. To […]
Originalism and Sex Discrimination VI: Originalism, Nonoriginalism, and the (Possible) Failure of the Constitution to Protect Against Sex Based Distinctions
Mike Rappaport
In their response to Ed Whelan, Calabresi and Rickert suggest part of their motivation for their article concluding that the original meaning of the 14th Amendment, as modified by the 19th Amendment, prohibits sex discrimination: One of the principal criticisms of originalism that has been levied in recent years by Richard Posner, Cass Sunstein, and Jack […]
Justice Jackson’s Concurrence in the Steel Seizure Case
Mike Rappaport
Mike Ramsey links to this post by Stephen Griffin on his new book on Foreign Affairs. Stephen criticizes Justice Jackson's famous concurrence: Students of debates over presidential power know this relates to Justice Jackson’s concurring (now controlling) opinion in the Steel Seizure case. Jackson specifically rejected the vesting clause thesis and assumed that founding era […]