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).

The Chicago Shooting

What an awful incident.  To my mind, a cold blooded murder.  While many of the cases being protested do not seem to involve misconduct, like the Ferguson case, this video shows to my mind a clear example of wrongful behavior. The 17 year old victim, Laquan McDonald, who was holding a knife, was walking away from the police.  Officer Jason Van Dyke shot him 16 times.  16 times!  Van Dyke fired for 14 seconds, and for 13 of those seconds, his victim was already on the ground. Think about all of the outrageous aspects of this case.  Citizens had made 18 complaints…

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The Consequences of Allowing Presidents to Ignore the Declare War Clause

While most criticisms of nonoriginalism focus on the creation of constitutional rights that do not exist in the document, the failure to follow the original meaning concerning the separation of powers should receive more attention.  In particular, the failure of the courts and, in areas where the courts do not typically decide matters, the political branches to enforce the original meaning has had serious harm.

Consider the requirement under the Constitution’s original meaning that Congress authorize American wars (except where the U.S. is attacked).  There is a strong case to be made that Constitution’s original meaning imposes this rule.  Despite claims of presidents who seek to engage in hostilities without congressional authorization, the Constitution’s original meaning would work well.  By contrast, under our existing “constitutional practice,” presidents are usually able to engage in war without congressional authorization, as President Obama did in Libya.  And this not only allows presidents to fight wars that the country is not behind, but also undermines the entire system of responsibility that the Constitution establishes in this area. 

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Primus on the Inaccuracy of Madison’s Notes

In my last post, I discussed the implications for originalism if Madison’s Notes are inaccurate.  In this post, I will discuss some commentary by Richard Primus, one of the leading originalist critics, about why originalists might be upset about the inaccuracy of the diary. Primus acknowledges that original public meaning originalists should not be much affected by the inaccuracy, because Madison’s Notes are not very relevant to their theory, which focuses on word meanings.  But he still believes originalists are likely to be upset: Four of the important appeals of originalism are (1) the promise of stability, (2) the opportunity to bask…

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Does Inaccuracy in Madison’s Notes Matter?

Constitutional historian Mary Bilder has a new book entitled Madison’s Hand: Revising the Constitutional Convention, which argues that Madison’s Notes, which are the principal source of the Philadelphia Convention’s activities in drafting the Constitution, were revised more extensively than most people realize.  While I have not read Bilder’s book yet (but here is a brief summary), I very much like Bilder’s work, including this book and this excellent article.  I am, however, aware of the criticisms and accusations about Madison’s work from previous scholars.

The extent to which the possible inaccuracy of Madison’s Notes affects originalism depends in part on the type of originalist one is.  If one favors an original intent approach, then it is normally thought that the possible inaccuracy would be a big problem.  By contrast, if one favors an original public meaning approach, then many people believe such inaccuracy would not matter much, because it is the meaning of words that matter, not what went on in the Philadelphia Convention.

Here I want to explain in what ways the Philadelphia Convention debates are relevant to an original public meaning approach.  Such an approach inquires into the public meaning of the terms that the Constitution employs (rather than the subjective intent of the people who wrote the Constitution).  An original methods originalist version of original public meaning – which is my view – looks to the original interpretive rules to determine that public meaning.

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Calabresi on the Goodness of Federalism and Presidentialism in the U.S. Constitution

While many of us greatly value the United States Constitution, there are numerous critics of the Constitution including in the United States.  In particular, the critics argue that other countries should not attempt to emulate the U.S. Constitution.  Two features of the U.S. Constitution have been subject to scrutiny: its establishment of a federalist system and its use of a presidentialist executive.

Steve Calabresi has a new article out that ably defends the U.S. Constitution.  Calabresi acknowledges the problems with federalist and presidentialist systems, but argues that the U.S. Constitution avoids these problems with distinctive features that have not been employed by other countries that have adopted these systems.

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Lawson on the New Originalism

In a new  article by Gary Lawson discussing Jim Fleming’s book on constitutional theory, Lawson takes issue with a well known claim by Keith Whittington about the new and old originalism that Fleming accepts.  (For one discussion of the new originalism, see here.)  Whittington had claimed in 2004 that:

The new originalism is distinct from the old in that it is no longer primarily a critique of the Warren Court’s rights jurisprudence. The new originalism is more comprehensive and substantive than the old. It is more concerned with providing the basis for positive constitutional doctrine than the basis for subverting doctrine.

Lawson writes:

Thus, I think Professor Fleming gets it precisely backwards when he characterizes the new originalism as a move from anti-Warren Court tirades to a governing judicial philosophy. He has taken bad guidance from Keith Whittington, who postulated – with absolutely zero evidence that I can see – precisely such a move as the explanation for the emergence of the new originalism in the Reagan and post-Reagan years. That is the sort of thing that sounds nice to political scientists who like that kind of explanation. It just happens to be, I believe, wildly false, and indeed backwards, as an account of the emergence of the new originalism.

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Reforming the Abuse of Agency Authority

Michael Greve recently wrote a great post about how administrative agencies abuse their authority and impose harm on private parties.  They are able to do this in a variety of different areas where their actions are not effectively subject to review by the courts.

Greve’s example is a letter sent by the Labor Department to businesswoman, Rhea Lana Riner, claiming that people she regarded as volunteers were actually employees and therefore had to be paid the minimum wage and overtime.  The Department sent Riner a demand letter, ordering her to pay the volunteer/employees or threatening “hundreds of thousands of dollars in civil penalties.”  According to Greve, the Department has “placed Riner in regulatory purgatory.” While the Department has threatened Riner, a federal court has ruled that there is no judicial review because the Department has not yet issued a formal complaint.  And Greve notes that the Department may never issue such a complaint, “because then, they’d have to defend their position in court.”

This appears to be another example of administrative agency action cynically taken in a way to avoid judicial review.  I have written about this in the past, including in the context of the Department of Education, which has largely transformed sexual assault rules on campuses through guidances that are used to threaten universities but are not subject to effective review in court.

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Does the Constitution Allow a Female President? Originalism Says Yes. Some Types of Nonoriginalism May Say No.

This might seem like an odd question, but a journalist recently asked me my opinion about the matter.  It turns out that Article II of the Constitution refers to the President as a him.  For example: “He shall hold his Office during the Term of four Years.”  If this “he” meant only a male person, there would be a strong argument that the President had to be a male.

But I believe that this interpretation is mistaken.  It is my understanding that the term “he” at the time of the Constitution had multiple meanings or usages.  While one of those was to refer to a male person, another was to use the term “he” to mean “he or she.”  Under that usage, a female President would be constitutional.

The same issue arises as to members of Congress as well.  For example, Article I, section 2, clause 2 provides “No person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”  (Emphasis added.)

There are strong reasons for preferring the “he or she” meaning over the “he” meaning.  Most importantly, the Constitution contains explicit qualifications for serving in Congress and in the presidency.  These are normally thought to be the exclusive qualifications set by the Constitution.  Reading in another qualification – maleness – would thus conflict with the constitutional structure.

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Brown, Jim Crow and Originalism

Michael Dorf recently argued that originalism cannot justify Brown v. Board of Education (1954) and any constitutional interpretive theory that fails to justify Brown should be rejected. His argument has provoked many responses.

One response has been to question the claim that any single result should determine the acceptability of a constitutional theory. Any constitutional interpretive theory that limits interpreters will some of the time lead to bad results. Moreover, virtually all constitutional theories recognize that the original Constitution allowed (and to some extent protected) slavery, and that certainly was a bad result.

Another response is to question the claim that originalism cannot justify Brown. In my view, there are strong (although not conclusive) originalist arguments in favor of Brown made by Michael McConnell and others. I would add that McConnell and others often treat Congress’s passage or at least allowance of segregated schools in the District of Columbia as strong evidence against the originalist case for Brown. But that is not true.  As I argue in this paper, the equality requirements of the Fourteenth Amendment did not apply to the federal government and therefore actions by the federal government do not reflect anyone’s view of the Fourteenth Amendment’s content. 

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Originalism and the Stability of Constitutions

In a previous post, I discussed the view of Barry Weingast and his coauthors as to what makes for the stability of a constitution. Weingast argued that there are three basic conditions needed for constitutional stability. First, the Limit Condition: having a constitution that imposes significant limitations on what the government may do, so that people do not have strong incentives to take extraconstitutional action to prevent the other party from securing power. Second, the Consensus Condition: having a constitution that makes clear what are constitutional violations, so that the people can unite together to stop the government from taking such unconstitutional actions. Third, the Adaptation Condition: having a constitution that allows for adaptation so that when social or other changes occur, the constitution can be modified to continue to satisfy these three conditions.

I want to argue that these conditions are much better satisfied when the constitution is interpreted in an originalist way.  Here I will be talking about the U.S. Constitution.

The Limit Condition is better satisfied by following the original meaning of the Constitution. If the original meaning is not followed, then it becomes unclear what limits the Constitution actually imposes. Interpreters can modify its meaning to a significant degree.  Thus, people may fear the exercise of power by a government because that government may exercise dangerous powers that are currently not allowed, but will be permitted when the Supreme Court (or other actor) reinterprets the Constitution. 

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