Eli Nachmany on To Delegate Or Not To Delegate: Celebrating A Scholarly Exchange About Originalism And The Nondelegation Doctrine
Mike Rappaport
At Jotwell, Eli Nachmany writes: A riveting originalist debate over the nondelegation doctrine is currently playing out in the legal academy. The nondelegation principle suggests, in part, that “Congress cannot delegate its legislative power to the executive.” In their recent article Delegation at the Founding, Professors Julian Mortenson and Nicholas Bagley argue that the framers originally understood the Constitution to […]
More on the Vice President’s Power to Break Ties
Mike Rappaport
Mike Ramsey’s argument (added to by David Weisberg) have largely covered the ground on Larry Tribe’s peculiar argument that the Vice President is not authorized to break ties when the Senate votes whether to confirm a nominee. But I have two quick points to add. First, the language strongly points the other way. Consider […]
The Scalia and Ginsburg Vacancies: Can McConnell’s Actions Be Justified?
Mike Rappaport
This essay is not about originalism, but about the norms governing Supreme Court appointments. But since it concerns the possible appointment of an originalist justice, I thought I would put it up. Senate Majority Leader Mitch McConnell’s statement that a vote would be scheduled on a Trump nominee to fill the Ruth Bader Ginsburg vacancy […]
Weisberg on Chiafalo
Mike Rappaport
David Weisberg has criticized my argument that Chiafalo wrongly allowed states to control the votes of presidential electors. But like many others who disagree with my analysis, Weisberg does not address the strongest arguments against his view. First, he does not address how his view would apply to senatorial elections at the time of […]
The Originalist Disaster in Chiafalo
Mike Rappaport
It is difficult to overstate how much of a catastrophe the “faithless electors” Chiafalo case is for originalism. It is not the case’s effect on the operation of the electoral college that is so disastrous. Rather, it is the reasoning of the Supreme Court’s decision. Chiafalo largely portrays itself as an originalist decision, but it […]
Barzun on Originalism and Living Constitutionalism
Mike Rappaport
Over at Balkinization, Charles Barzun criticizes originalism. I am not sure that I understand his argument entirely, so I will just give some specific responses. Barzun’s words are indented. Mine are not indented. It is an essential feature of the Constitution that it is the kind of thing that is amenable to different but proper […]
The State of Originalism
Mike Rappaport
The Center for the Study of Constitutional Originalism at the University of San Diego has been holding an annual conference on originalism for the last 11 years. Each year at the beginning of the conference, I discuss what I regard as the most important events concerning originalism in the past year. This year, for the […]
Vermeule Responds to His Critics on the Right and the Left
Mike Rappaport
Adrian Vermeule has posted a follow up to his Atlantic piece on common good constitutionalism that attempts to respond to his critics on the left and the right. It is an obviously satirical piece – although the satire has not been recognized by some readers – that makes some important points against his critics. In […]
The Controversy about the ERA Amendment Process
Mike Rappaport
It seems likely that another constitutional controversy will soon emerge. In 2020, the Virginia Legislature seems poised to ratify the Equal Rights Amendment, which Congress first proposed nearly a half century ago. Under one way of counting, Virginia’s approval would be the 38th state ratification for the ERA, giving it the requisite three quarters of […]
Applying the Fourth Amendment’s Original Meaning to Cell Phones and Heat Sensors
Mike Rappaport
How should the Fourth Amendment’s original meaning be applied to modern technology that was not in existence at the time of the Amendment’s enactment? Many commentators believe this type of question problematic to answer. As Justice Alito quipped some years ago at oral argument, “I think what Justice Scalia wants to know is what James […]