Mike Rappaport Website

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

Federalism and Consensus: The Contrasting Cases of Gay Marriage and Medical Marijuana

One common way of thinking about the possibility of federal reforms – in both the legislature and the Supreme Court – is that they are more likely to occur as the number of states that enact those reforms at the state level grow.  For example, Ruth Bader Ginsburg once argued that the Supreme Court had stepped in too quickly in the abortion issue.  When Roe v. Wade was decided in 1973, only 4 states allowed abortion “in nearly all cases before the fetus was viable.”  But support for abortion was growing.  Ginsburg’s point was that the Supreme Court’s early and decisive action had prevented the country from continuing to change its mind gradually on the issue.  After such a development and a large number of states supporting abortion, a Supreme Court decision constitutionalizing abortion would have been less controversial.  By contrast, Griswold v. Connecticut, which recognized a constitutional right for married couples to have contraception, was a far less controversial decision in part because it struck down laws in only one or two states.

Ginsburg’s analysis of Roe recently came up when the issue of gay marriage was being debated in the country and decided by the courts.  It was commonly thought that the Supreme Court would wait until a large number of states actually had decided in favor of gay marriage before announcing it as a constitutional requirement.  And in 2015, when Obergefell was decided, 36 states allowed same sex marriage (although the process had ended up moving more quickly than many people expected).

Although 36 states allowed same sex marriage, the great majority of these states did so only because of court decisions.  A rough and quick count indicates that only 10 states legalized same sex marriage by legislative decision, with the remainder being required to do so based on judicial decisions.  Thus, while a significant elite supported same sex marriage, legislatures and the voters were much less supportive.

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The Causes of the EpiPen Problem

The EpiPen has been much in the news. The product, which provides an immediate dose of adrenalin to address an anaphylactic reaction, has risen in price by 400 percent over the last several years. For Hillary Clinton and left wing sites like Vox, this is an argument against drug companies and the free market.  What is needed is more government regulation in the form of price regulation.

But it turns out that the problem is the result of bad regulation. When a company sells a product at excessive prices, the normal reaction in free markets is for a competitor to enter the market, which then reduces the prices. But this has not happened in this market due to the FDA.

Various companies have attempted to market competitors to the EpiPen. One, Teva Pharmaceuticals, had their product rejected by FDA based on claimed deficiencies.  But the FDA apparently has not made clear what those deficiencies are. Another, Adamis, was rejected by the FDA on the ground that additional studies were needed, even though the company had already done several studies supporting the product.

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Medical Marijuana and Federalism

Last week, I blogged about the DEA’s decision not to change the classification of marijuana as a Schedule I substance.  While the decisions seems to me absurd, not all of the news in this area is bad.  In fact, the movement to legalize marijuana under varying circumstances has never been stronger.

It should not be all that surprising that the DEA – a government agency charged with the mission of enforcing the drug laws – should be so unsympathetic and hostile to the benefits of one of the drugs they regulate.  After all, they would be in essence admitting significant error if they acknowledged that marijuana had important benefits.  Of course, less understandable is why Congress and the executive assign this task to the DEA.  Still, the point here is that who makes the decision is important in a political system.

One of the virtues of the American system is federalism.  While the federal government has been very hostile to marijuana for years, decisions in the U.S. are not only made at the national level.  Thus, the federal government may continue to be strongly against marijuana, while at the state level there is growing support for permitting it under certain circumstances.

The number of states allowing medical marijuana (25) has been expanding as has the number of states allowing recreational use (4).  In 2016, 4 additional states will decide on whether to legalize recreational use of marijuana and another 5 states will decide on medical marijuana.    

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More on the DEA’s Failure to Reclassify Marijuana

This is a follow-up to my previous blog post on the decision by the DEA not to reclassify medical marijuana.  I came upon this piece in the Scientific American Blog by “a resident physician specializing in mental health.”  He writes that every day he “screens patients for substance use. . . . During my medical training, I’ve learned which substances to worry about, and which ones matter less.”

Alcohol “is usually the first substance” he asks about.  Whether it is the “roughly 88,000 deaths in the US each year” from excess alcohol consumption or the effects when heavy drinkers attempt to cut back and go into alcohol withdrawal, alcohol is a very serious problem.

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The DEA’s Classification of Marijuana as a Schedule I Substance

Recently, the Drug Enforcement Agency once again declined to change marijuana’s classification from Schedule I to Schedule II.  While not unexpected, to my mind this is one of the least defensible decisions of current government policy.

A bit of background may be helpful.  Schedule I substances are defined as having “no currently accepted medical use in the United States, a lack of accepted safety for use under medical supervision, and a high potential for abuse.”  Examples of substances in this category are heroin, LSD, and Ecstasy.

Schedule II substances are defined as having “a high potential for abuse which may lead to severe psychological or physical dependence.” Examples in this category are methadone, OxyContin, morphine, and Adderall.  While schedule II substances can be prescribed for medical treatments, schedule I substances cannot because there are “no currently accepted medical uses.”

Schedule III substances are defined as having “a potential for abuse less than substances in Schedules I or II [where] abuse may lead to moderate or low physical dependence or high psychological dependence.” Examples include Vicodin and anabolic steroids such as Depo-Testosterone.

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Originalism, Changing Meanings, and Stable Meanings

One of the criticisms made against originalism by historians is that originalism fails to take into account that word meanings change over time.  In particular, historians argue that during important periods, such as the time leading up to the Constitution, word meanings changed.  Therefore, originalism is problematic because it assumes that traditional word meanings are stable. Unfortunately, this charge by historians turns out to be largely mistaken.  If some originalists assume that word meanings were stable, then that would be an argument against those originalists.  But it would not condemn originalism generally, since nothing in originalism requires that word meanings be…

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The Tiers of Scrutiny: A Public Choice Analysis

In my last post, I discussed Justice Clarence Thomas’s criticism of the Supreme Court’s tiers of scrutiny jurisprudence.  Given Thomas’s criticism of the tiers as both made up and inconsistently applied, one might wonder why the Supreme Court follows this approach.  My explanation is one that relies on a public choice theory of the justices.  The Supreme Court follows this approach because it enhances – perhaps maximizes – its power. One might question that the Supreme Court’s power is enhanced by the tiers of scrutiny jurisprudence.  After all, the tiers seem to involve rules of a sort that would arguably limit…

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Justice Thomas on the Tiers of Scrutiny

In a prior post, I noted Jeffrey Toobin’s criticism of Justice Clarence Thomas for Thomas’s claim that since the New Deal, the Supreme Court’s constitutional doctrine has become an ‘unworkable morass of special exceptions and arbitrary applications.’”  Interestingly, Toobin never argues that Thomas’s claim is mistaken.  Toobin seems to feel that voicing the criticism of the Court is itself worthy of censure, whether or not it is true.  But in my view, Thomas’s claim is both true and damning.

In his dissent in the Court’s most recent abortion case, Whole Woman’s Health v. Hellerstedt, Justice Thomas offers two basic criticisms of the Court’s tiers of scrutiny jurisprudence: the tiers are not in the Constitution and that they are followed only inconsistently by the Court.

1. The Supreme Court generally employs three tiers of scrutiny: rational basis, intermediate, and strict scrutiny. Thomas first argues that these tiers are not in the Constitution. He claims that the Court has made them up, which Thomas focusing his criticism on the famous case of Carolene Products.  Thomas argues that the Court, in a footnote that was “pure dicta,” attempted to justify its special treatment of certain personal liberties like the First Amendment and the right against discrimination on the basis of race.

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Millennials, Technology, and Short Attention Spans

Obviously, the way in which culture and ideas are presented have changed in recent decades.  One often hears that we are in a world of short attention spans.  Thus, people don’t read books anymore.  They read short pieces on the internet, like blogs.  People don’t listen to albums any more, they download songs instead.  This short attention span is also thought to be reflected in the use of cell phones, with people constantly multi-tasking and not being able to focus on one matter at a time.  All of this is sometimes thought to be a reflection on the undisciplined habits of mind of the younger generation.

But that’s not my view.  To begin with, it seems clear to me that the causation runs in the opposite direction.  It is not the short attention span or undisciplined minds of the young that is causing this.  Instead, it is the technology that promotes these behaviors that is the primary cause. Part of the proof for this is that older people, who presumably had more disciplined minds back in the day, often behave in much the same way as the younger people when using this new technology.

Another problem with a short attention span being the cause of this behavior comes from the world of modern TV shows, especially of the pay TV or cable variety.  The old style TV shows could be watched in any order.  They were designed that way.  One could watch All In The Family or ER in pretty much any order.  There was a reason for this: in a world with either no or limited VCRs, people could not be expected to catch every TV show in order.

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Is SCOTUS a Good Reason to Support Trump?

Reason.com has a piece by Damon Root asking various libertarian and conservative legal experts what they think about the matter.  There are a range of answers.  Here is my response: I certainly believe that the future of the Supreme Court is "a reason" to support Trump. There are no assurances, but I do believe it is likely that he will choose someone from the list he issued previously (or someone similar). Is it a strong enough reason to overcome the other reasons not to vote for him? To me, it depends on one's perspective. If one is simply voting for the candidate…

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