Originalism, the Fourth Amendment, and New Technology
Mike Rappaport
One of the important issues for originalism is whether it can be applied to new circumstances that were not envisioned at the time of the original Constitution. Perhaps this issue is encountered most often when considering the application of the Fourth Amendment to new technology. In this essay and my next, I explain how these […]
Justice Kavanaugh Provides Another Sign the Nondelegation Doctrine May be Revived
Mike Rappaport
Last term, the Supreme Court decided Gundy v. United States, which reviewed a large and largely standardless delegation of power to the Attorney General. The Court approved of the delegation in a 5 to 3 vote, with a strong dissent by Justice Gorsuch arguing on originalist grounds in favor of the revival of a more […]
Segall on Descriptive and Normative Theories of Originalism
Mike Rappaport
Eric Segall raises the important distinction between two different types of originalist theories. One type of theory – a descriptive theory – holds that originalism has been the dominant approach to constitutional interpretation throughout American history and then uses this prevailing approach as the main (or at least one important) argument for using that approach […]
Does the Constitution’s Original Meaning Prohibit a State from Abolishing the Insanity Defense?
Mike Rappaport
Mike Ramsey recently posted on the Kahler v. Kansas case, which raises the issue whether a state can eliminate the insanity defense. Mike concluded that the original meaning does not protect against eliminating the insanity defense under the Eight Amendment or the Due Process Clause: After considering this question a bit more, it seems to […]
The Challenge of Naming the Modern Originalist Movement
Mike Rappaport
One sign of the success of an academic movement, like originalism, is that it becomes attractive enough to develop multiple theories that promote the movement in different ways. The existence of these different theories has advantages. The various theories provide multiple perspectives and differing defenses of the movement, making it more likely to prevail in […]
Another Missed Opportunity: Kisor v. Wilkie and the Failure to Overturn Auer Deference
Mike Rappaport
In June, the Supreme Court decided the case of Kisor v. Wilkie, which presented the question of whether Auer deference should be eliminated. In another defeat for the movement to restore limits on administrative agency discretion, a majority of the Court refused to overturn Auer v. Robbins and thereby eliminate Auer deference. Auer deference is […]
Abandoning Originalism Wouldn’t Be Very Conservative
Mike Rappaport
In recent years, a number of conservative legal scholars have expressed skepticism about modern originalism. The idea is that modern originalism has been greatly influenced by libertarians and even liberals such that it is no longer congenial to traditional conservatism. Jesse Merriam’s Liberty Forum essay is in part an example of this view. Those who hold […]
Lash on the Tenth Amendment
Mike Rappaport
Kurt Lash has an interesting post up, based on his earlier law review article, arguing that the 10th Amendment should be understood to protect against inferring federal powers that are not expressly delegated to the federal government. The language of the 10th Amendment provides that “The powers not delegated to the United States by the […]
Clutching Defeat from the Jaws of Victory: Gundy and the Prohibition on Delegation
Mike Rappaport
The prohibition on the delegation of legislative power to the executive is one of the key structural features of the Constitution’s original meaning. The prohibition prevents the legislature from passing a law that authorizes the executive (instead of the legislature) to make the basic policy decisions in an area. The prohibition thus makes it harder […]
Constitutional Text and State Sovereign Immunity
Mike Rappaport
One of the most difficult issues for the originalists on the Supreme Court has been state sovereign immunity. While these originalists usually argue against interpretations that do not derive from the constitutional text, in the area of sovereign immunity they have written and joined opinions that strangely rely on techniques that bring to mind Griswold […]