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).

Gans on Reconstruction and Affirmative Action

At Balkinization, David Gans criticizes one of my earlier posts concerning original meaning and affirmative action, where I argued that the Freedmen’s Bureau Act does not provide support for the constitutionality of affirmative action under the 14th Amendment.  Gans makes two points:

First, he claims that in

the debates over the federal race-conscious measures of the Reconstruction Era, no one took the view, suggested by Rappaport, that the federal government was not bound by the Constitution’s demand for equal treatment before the law.  That was a core principle of due process, to which the federal government was bound under the Fifth Amendment.  (The Supreme Court has said as much repeatedly.)  In the arguments over racial preferences in Congress, the Fourteenth Amendment Framers and their opponents all assumed that the federal government was required to respect the equality of all persons.

Gans point here is problematic.  It is true that during these debates, people often argued about equality.  But in many of these cases, the appeal to equality was best interpreted as involving a political principle rather than a constitutional requirement.  It is an undeniable fact that the Equal Protection Clause (which most commentators view as the source of equality) was not applied to the federal government. 

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Who Are the True Heirs of the Reconstruction Republicans?

In a post at Balkinization, Mark Graber criticizes the five more conservative justices on the Supreme Court, seeking to link them to the Democrats who championed slavery:

Roberts Court justices and their allies take the post-bellum Democratic position on constitutional equality. During the debates over the Second Freedmen’s Bureau Bill, Republicans insisted that Congress could take into consideration American racial history when passing legislation that provided specific benefits to destitute freedmen. Democrats insisted that any legislation that favored persons of color violated constitutional commitments to equality. Chief Justice Roberts agrees with those who hoped African-Americans would remain in a state as close to slavery as constitutionally possibly.

For years, originalists have told us that constitutional language must be interpreted consistently with how that language was understood when constitutional provisions were ratified. Apparently . . .  what they have meant is that constitutional language ought to be interpreted consistently with how persons who opposed constitutional provisions interpreted that language after ratification.

Graber’s argument, which has also been made in the literature, is not persuasive.  In my view, it makes a tendentious political argument that is easily defeated by those it criticizes.

Graber’s argument focuses on the legislative debate concerning the Freedmen’s Bureau Act, which provided special benefits to former slaves. He claims that the defenders of slavery and white supremacy, the Southern Democrats, made the same arguments that the modern Republicans make concerning affirmative action. And the party of freedom for blacks, the Northern Republicans, make the same arguments that the modern Democrats make. Graber also claims that the modern Republicans, who tend to be originalists, are not really purporting to enforce the original meaning of the Constitution concerning this issue. 

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Misleading the Public on Anti-Muslim Vandalism

Eugene Volokh notes a significant discrepancy between the press release issued by the Department of Justice concerning a case of vandalism against an Islamic Center and the underlying facts of the case based on the plea agreement.  According to Eugene:

The press release describes the graffiti painted on the Islamic Center this way:

The graffiti included explicit and offensive language in addition to such statements as “Bash Back,” “Now is our time!” and “You bash us in Pakistan we bash here.”

But the plea agreement reports that the graffiti, put up in early 2011, contained “the following statements”:

(i) “Allahu Fuckbar;” (ii) “Queer insurrection;” (iii) “It’s okay to be gay!” (iv) “Now is our time!” (v) “Bash Back;” (vi) “You bash us in Pakistan we bash here;” (vii) “Allah was gay;” (viii) “[illegible] unite;” (ix) “Satanic trans” (with circle around Star of David above); (x) “Fuck straights;” and (xi) “Bash Back lives.”

What’s more, Eugene explains that “Bash Back” is a gay and lesbian activist group.  This context, Eugene writes, “puts a different cast on the graffiti that the press release did quote — at least two and possibly all three of those statements also appear to be pro-gay-rights.”

Eugene’s post points out the misleading nature of the press release.  Here I want to speculate on the motivations for the deception. 

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The Police: A Middle Ground

The police situation in the United States is distressing.  Amidst charges that the police regularly engage in misconduct, especially towards minorities, it seems like much of the country is split into two camps: 1) those who believe the police often engage in misconduct and therefore more needs to be done to address their misbehavior and 2) those who believe the police almost always behave properly and who emphasize that harm that occurs to minority communities when the police are unable or discouraged from doing their job.

I don’t really understand why one needs to choose one or the other of these camps. On the one hand, it seems obvious to me that many police officers often engage in wrongful behavior, ranging from the relatively unimportant (requiring citizens to treat them with great deference or hassling them when they don’t) to the horrific (shooting citizens in the back for no good reason). Also quite distressing are the special rules, promoted by police unions, that grant officers charged with wrongdoing special privileges and the code of behavior of officers who lie and cover up for another.

On the other hand, it seems equally obvious that many police officers who are accused of wrongful conduct actually behaved properly, that being a police officer is a dangerous job, and that the good they can do (by protecting the public from violence) is enormously valuable. Good police officers deserve our respect and gratitude.

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Constraining Executive Illegality Through an Advisory Court

Under the Obama Administration, the executive branch has engaged in numerous actions where it has refused to follow statutes – either on the grounds that the statute implicitly allows it discretion or that the Constitution renders the statute unconstitutional.  As has often been noted, these actions are often quite questionable on a legal basis.  But there is little that can be done if no one has standing to challenge the action in court unless the Congress is willing to bring impeachment charges, which is generally politically unattractive.  In a previous post, I discussed using anti-severability provisions in statutes.  While that can help, it will not deter a very willful President.  Here, then, I have another statutory reform.

Congress should pass a law that would establish a “court like entity.”  The entity would consist of 5 judges, to serve for 10 year terms, selected from retired judges who had served on the U.S. Supreme Court or the federal circuit courts.  One of the judges would be appointed by the President with the advice and consent of the Senate.  Two would be appointed by the Speaker of the House, with the advice and consent of the House of Representatives.  And the final two would be appointed by the Senate Majority Leader, with the advice and consent of the Senate.  The appointments would be staggered, so that a new judge would be appointed each year.  The court should also be required to be bipartisan, with three members of one party and two of the other party. 

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Lash on the Fourteenth Amendment

In my view, the hardest part of the Constitution’s original meaning to understand is the 14th Amendment. While we have made great progress in understanding this provision, we unfortunately do not yet have a satisfactory theory of the Clause.

One of the scholars who has written about the Amendment is Kurt Lash. Kurt has written several articles on the Amendment that culminated in the publication of a book. On this site, Kurt has written several posts defending his interpretation of the Amendment. Kurt defends a view that I used to hold, but no longer do: that the Privileges or Immunities Clause of the 14th Amendment protects against state infringement of the constitutionally enumerated rights of citizens of the United States. Here I thought I would explain some of the strengths and weaknesses of this view, and identify why I now adopt a different interpretation. (I should note that while I have read the articles on which Kurt’s book is based, I have not yet read the book.)

Adequate theories of the original meaning of the 14th Amendment must do several things. Two of the most important are to give effect to the text of the Privileges or Immunities Clause and to explain how the Amendment established an equality requirement that rendered the black codes, which discriminated against former slaves, unconstitutional. 

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Using Delegation to Promote Deregulation

I recently published an essay in Regulation magazine proposing a reform that would promote deregulation.  The idea is to establish an administrative agency with the power to deregulate – to identify undesirable regulations passed by other agencies and to repeal those regulations.

Here is the intro:

For those who favor strong limits on regulation, the last 100 years in the United States have been disappointing. During this period, regulation grew almost continually. One of the reasons for that growth is the delegation of legislative power to administrative agencies, which allows those agencies to who write regulations with little oversight from elected lawmakers. To rein in regulation, advocates of limited regulation argue that Congress’s delegation of its legislative authority must be restrained.

Unfortunately, reforms that attempt to eliminate or limit delegation are unlikely to be enacted. The practice of delegation has become a basic aspect of our political system. Its prevalence in the modern world is no accident. It occurs because delegation is popular with so many of the prevailing powers, including Congress, the president, the agencies, and those who favor regulation.

But proponents of limited regulation need not despair. While delegation certainly promotes regulation, it can also be used to promote deregulation. Congress could create an administrative agency that is given the power to pass deregulations – rules that either eliminate regulations or move the country back to a system of property and markets. By employing delegation in an effort to reduce regulation, proponents of limited regulation will not be fighting against one of the fundamental forces of our modern political system, but instead be employing that force for a beneficial purpose.

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Checking the Government with Anti-Severability Provisions

The federal government has been arguing that the terror attacks in Paris and San Bernardino require that it be able to circumvent encryption of messages, something they have sought for a long time.  A cynic might argue that they see their opportunity and are seizing it.

But let’s assume that they actually need the access to encrypted messages to combat terrorism.  How can the government be monitored so that the acquired information is not used for other purposes, such as non-terror law enforcement or disclosure for political purposes?

Here is one idea.  Congress should pass a law that prohibits the use of this information for any purpose other than the prevention of terrorism.  The sanctions for a violation should be both criminal and civil.  Moreover, an Inspector General should be given the tools to uncover any such wrongdoing. 

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Evidence of a Corrupt System

In a prior post on the Chicago Police Shooting of Laquan McDonald, I stated that the circumstances of the case “suggest massive corruption.”  Now more information is coming out indicating how corrupt the system was.  It is certainly true that Chicago Rahm Emanuel acted to keep the video of the shooting from public view until after his re-election.  In fact, city lawyers waited until a week after his election to get final approval for the $5 million settlement with Mr. McDonald's family, even though the settlement had been "substantially agreed upon" weeks earlier.  But that a politician apparently took action to…

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Polarization, Compromise, and Nonoriginalism

In two recent posts, I have explored the effects of nonoriginalism in the separation of powers. Here I want to mention several ways in which such nonoriginalism has contributed to the increasing polarization of our society, by permitting the political branches to avoid having to compromise.

First, as I argued in one of these posts, the delegation of legislative authority to the President leads to polarization. Such delegations allow the President to decide on policy rather than having the Congress and the President do so through the passage of laws. In the latter case, compromise would be needed to pass laws, which would lead to less polarization. 

Second, the Supreme Court’s updating of the Constitution through nonoriginalist interpretation leads to polarization. With such updating, a majority of the Court can allow one of the political parties or factions to get its way in constitutional law. By contrast, without such updating, constitutional change would require the passage of constitutional amendments, which require compromise to secure the supermajorities necessary to pass them.  

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