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).

Investigating Illegal Government Action

The firing of James Comey and the appointment of a special counsel have once again raised the issue of independent counsels and how we address government wrongdoing.  I have long thought about this issue, proposing various different solutions to the problem. The basic problem is that we simply do not have adequate institutions in place to address government wrongdoing.  During the late 1970s until the end of the Clinton Administration, the Independent Counsel statute was in place.  The statute had many significant defects, although it did have some virtues.  One virtue was that it had a uniform standard – although probably…

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Amending the Constitution Through Direct Democracy

Over the weekend, I attended a great conference at Stanford Law School entitled, A Big Fix: Should We Amend Our Constitution.  The idea for the conference was to have various people propose constitutional amendments.  Some years ago, I proposed a constitutional amendment of my own as part of the Room for Debate feature of the New York Times.  See here and here. My job was to comment on Sandy Levinson’s proposed amendments to the Constitution.  While Levinson proposed various provisions, his most interesting proposal was for constitutional amendments to be enacted through direct democracy.  Under Levinson’s proposal, 10 percent of those…

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Goldfarb on the Language of the Law: A Response

Neil Goldfarb has written a blog post commenting on our paper, The Language of the Law and the Constitution.  The gist of his post is that the law is not a language in any of four categories of language that he recognizes.  But Goldfarb himself notes that words often have shades of meaning: they cannot be confined to a procrustean bed of meanings. There is no reason to take his list as exhaustive. Most significantly, Goldfarb fails to address our argument that the language of the law is a technical language.  There is little doubt that there are technical languages: many…

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Defining Officers of the United States

In Jennifer Mascott’s new paper, Who are the Officers of the United States?, she argues that the definition of an officer was much broader than the Buckley standard of significant authority pursuant to the laws of the United States and that it included positions with ministerial duties.  I think the evidence that the paper discusses supports this conclusion. The common definition of office defined it broadly, as Chief Justice Marshall did in 1815, when he wrote it was “ ‘a public charge or employment,’ and he who performs the duties of the office, is an officer.  If employed on the part…

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Who are Officers of the United States? The Inadequacy of the Buckley Standard

Jennifer Mascott gave a talk at the University of San Diego Originalism Center on her new paper, which is to be published in the Stanford Law Review, on Who are the Officers of the United States? The paper engages in originalist research on an important topic that modern originalist scholars have largely neglected: how to distinguish between officers, who are subject to the Appointments Clause procedures, and employees, who are not.  Mascott concludes that many more government positions constitute offices than modern law allows and therefore are subject to the requirements of the Constitution’s Appointments Clause. For many years, the question of…

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Historians and Originalists Part III: The Hard Case of Discovering the Original Meaning of the 14th Amendment

In my last post, I want to discuss hard constitutional clauses – clauses where the original meaning of the constitutional provisions are extremely difficult to understand.  In these cases, one might expect that the skills of the professional historian would be the most valuable.  Yet, in the case of the 14th Amendment – in my view, the hardest part of the Constitution to understand its original meaning – recent discoveries have not primarily come from historians.  Instead, originalists have a made a large number of important advances in this area.  Thus, even in the hard areas, one cannot dismiss the…

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Historians and Originalists Part II: The Adequacy of Originalist Scholarship

In a prior post, I discussed some of the disagreements between historians and originalists.  I argued that more information is generally better than less information and therefore both groups of scholars are likely to make contributions as to constitutional interpretation.  Here I want to examine the relative contributions of the two groups and in particular whether the standard methods used by originalists are adequate to the task. Jonathan Gienapp argues that, without the skills of the historian, originalist law professors will not be able to determine the original meaning of constitutional language, because the language games and other aspects of 18th…

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North Korea and the Qaddafi Double Cross

With the Trump Administration engaged in a soft conflict with North Korea, it is worth noting how the actions of the Obama Administration have made it a harder to reach a resolution with North Korea. When a country attempts to secure nuclear weapons, it is of course extremely difficult for the United States and other countries to prevent them from entering the nuclear club.  A country gains a tremendous amount of military power, influence, and prestige from having nuclear weapons.  And so it would be expected that it would be difficult to persuade them not to do so.  Various administrations from…

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The Constitution, Liquidation, and Originalism

Richard Reinsch, editor of this site, has written an interesting piece entitled The Liquid Constitution.  Richard emphasizes that there is a need to liquidate the meaning of unclear constitutional provisions, and notes that James Madison praised this approach.  Richard has some critical things to say about originalism, suggesting that it enthrones the judiciary at the expense of the people. Without engaging with his criticisms of originalism, I do want to note that the role of liquidation is an important issue within originalism, and that originalist scholars have begun to study the matter from an originalist perspective.  One issue is the extent…

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Historians and Originalists Part I: The Context of the Debate

In recent years, there have been acrimonious debates – both formal and informal – between these two groups.  Historians have viewed law professor originalists as engaged in an amateurish attempt to understand historical meanings that is often result oriented.  Originalist law professors have viewed the historians as protecting their own turf by endlessly lecturing the originalists about the historians' superiority, with the historians then sometimes misunderstanding what original meaning is.  It has been a relationship in dire need of improvement. One of the problems is that methodological differences between the disciplines are often reinforced by political differences.  Most of the historians tend…

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