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).

Between the Original Decision and Abstract Originalism: An Unbiased Approach to Original Meaning

Introduction It is an honor to participate in this forum with my colleague Steve Smith and with Will Baude and Steven Sachs – all of them friends. Steve Smith’s essay continues his criticism of the new originalism in favor of the old originalism – a position that Steve previously defended in his paper “That Old-Time Originalism.” But unlike his earlier essay, which sought to defend the old originalism as the correct version of original meaning, Steve now advances a new type of originalism – original decision originalism – as a means of addressing what he regards as the defects of…

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Originalism and the Positive Turn

For more than a decade, the “New Originalism” has been identified with a focus on the Constitution’s original meaning (not its original intent) and with the admission that original meaning won’t perfectly constrain judges. Steven Smith challenges that version of originalism. The challenge should be rejected, but in the course of rejecting it we may…

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Saving Originalism’s Soul

What shall it profit originalism, to gain academic adherents but lose its soul? As Steven Smith tells it, the “new originalism” has made a disastrous Faustian bargain, with Jack Balkin playing Mephistopheles. It may have gained sophistication and intellectual respect, but it’s lost its ability to resist falsehood and manipulation—and lost the firm roots that…

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Decisional Originalism: A Response to Critics

I’m sincerely honored that Mike, Will, and Steve (whose expertise in these matters, both individually and collectively, greatly exceeds my own) would make the effort to comment on my essay.  The comments advance powerful objections to “decisional originalism,” as I’ve reluctantly called it.  Even so, I’m not persuaded– not yet anyway-- to abandon the idea. …

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The Good Constitution and The Sixteenth and Seventeeth Amendments: A Reply to Rossum

We are very grateful to Ralph Rossum for his generous response. In particular, he is very kind to note that our “arguments are interesting, powerful, intelligent, and . . . original.” We also appreciate his emphasis on the power of the syllogistic nature of our argument for originalism. Rossum’s principal concerns center on the adequacy of the supermajoritarian process for constitution making. While he acknowledges its virtues, he observes that it gave rise to two amendments, the Sixteenth and Seventeenth, that he views as problematic. Rossum’s argument is a difficult one for us, because to be frank these are not our…

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Originalism: A Necessary Tool But Not a Constitutional Panacea

In their short contribution to this issue, “Originalism and the Good Constitution” John McGinnis and Michael Rappaport link together two conceptions that I think should be kept forever separate. As their provocative title suggests, they claim that the path to a good Constitution, capital C, lies through originalism. The central point in their argument is…

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Supermajoritarian Originalism

John O. McGinnis and Michael B. Rappaport’s essay, “Originalism and the Good Constitution,” is a précis of their book with the same title, published on October 7 of this year by Harvard University Press.[1] What follows is a commentary on this essay, not the book. McGinnis and Rappaport defend what they call “original methods originalism,” because…

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Original Methods Originalism Best Defends the Classical Liberal Constitution: A Response to Epstein

We are grateful to Richard Epstein for taking the time to reply, but are disappointed that he attributes to us positions we do not hold, indeed ones that are the reverse of our positions. We will first clear up some mistaken attributions and then consider in a spirit of engagement what might be a real…

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Original Methods Originalism Best Defends the Classical Liberal Constitution: A Response to Epstein

We are grateful to Richard Epstein for taking the time to reply, but are disappointed that he attributes to us positions we do not hold, indeed ones that are the reverse of our positions. We will first clear up some mistaken attributions and then consider in a spirit of engagement what might be a real difference in perspective. Epstein seems to understand us to say that any supermajoritarian process is likely to lead to good results. He thus begins his essay by observing that the existence of the Fugitive Slave Clause is a refutation of our position. But he completely misunderstands…

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Originalism: A Necessary Tool But Not a Constitutional Panacea

In their short contribution to this issue, “Originalism and the Good Constitution” John McGinnis and Michael Rappaport link together two conceptions that I think should be kept forever separate. As their provocative title suggests, they claim that the path to a good Constitution, capital C, lies through originalism. The central point in their argument is…

Read More

Supermajoritarian Originalism

John O. McGinnis and Michael B. Rappaport’s essay, “Originalism and the Good Constitution,” is a précis of their book with the same title, published on October 7 of this year by Harvard University Press.[1] What follows is a commentary on this essay, not the book. McGinnis and Rappaport defend what they call “original methods originalism,” because…

Read More

The Good Constitution and The Sixteenth and Seventeeth Amendments: A Reply to Rossum

We are very grateful to Ralph Rossum for his generous response. In particular, he is very kind to note that our “arguments are interesting, powerful, intelligent, and . . . original.” We also appreciate his emphasis on the power of the syllogistic nature of our argument for originalism. Rossum’s principal concerns center on the adequacy of…

Read More

Originalism and The Good Constitution: A Discussion

Originalism 2

Originalism—the view that the Constitution should be interpreted according to its original meaning—has been an important principle of constitutional interpretation since the early republic. Today this theory has prominent adherents on the Supreme Court in Justice Clarence Thomas and, at least in “faint-hearted” form, Justice Antonin Scalia. Heller v. District of Columbia recently featured both majority and dissenting opinions that were wholly originalist in style. Legal academics across the political spectrum espouse some version of originalism. Nevertheless, originalism continues to be plagued by challenges, the most salient being how it is to be justified. But originalism is also confronted by many…

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Responses

Originalism: A Necessary Tool But Not a Constitutional Panacea

In their short contribution to this issue, “Originalism and the Good Constitution” John McGinnis and Michael Rappaport link together two conceptions that I think should be kept forever separate. As their provocative title suggests, they claim that the path to a good Constitution, capital C, lies through originalism. The central point in their argument is…

Read More

Supermajoritarian Originalism

John O. McGinnis and Michael B. Rappaport’s essay, “Originalism and the Good Constitution,” is a précis of their book with the same title, published on October 7 of this year by Harvard University Press.[1] What follows is a commentary on this essay, not the book. McGinnis and Rappaport defend what they call “original methods originalism,” because…

Read More

Original Methods Originalism Best Defends the Classical Liberal Constitution: A Response to Epstein

We are grateful to Richard Epstein for taking the time to reply, but are disappointed that he attributes to us positions we do not hold, indeed ones that are the reverse of our positions. We will first clear up some mistaken attributions and then consider in a spirit of engagement what might be a real…

Read More

The Good Constitution and The Sixteenth and Seventeeth Amendments: A Reply to Rossum

We are very grateful to Ralph Rossum for his generous response. In particular, he is very kind to note that our “arguments are interesting, powerful, intelligent, and . . . original.” We also appreciate his emphasis on the power of the syllogistic nature of our argument for originalism. Rossum’s principal concerns center on the adequacy of…

Read More

The Middle Way

I am very grateful for Bradley Watson and Nick Dranias for their thoughtful comments on my Liberty Forum Essay on the problems of the national convention amendment process and how to fix them.  I also feel fortunate that these two responses were paired.  While both Watson and Dranias find aspects of my argument worthy of criticism, they would, I believe, have criticized one another far more strongly if they had been tasked with responding to one another. Watson argues that I am too optimistic about the benefits of a reformed amendment process.  Dranias argues that I am too pessimistic about the…

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Use it or Lose it: Why States Should Not Hesitate to Wield their Article V Powers

A Thought Experiment Inspired by James Madison and Michael B. Rappaport More than two hundred years ago, in his report on the Virginia Resolutions, James Madison observed that the states could have overturned the Alien and Sedition Acts by exercising their Article V power to seek a constitutional amendment for that “object.” Later, in his 1830…

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Is Reforming the Constitutional Amendment Process the Real Solution?

Michael Rappaport offers up some interesting, lawyerly suggestions as to how to stop what he claims is the Constitution’s incessant drift toward centralization and nationalism. His suggestions center on revising the constitutional amendment process so that it might be more accommodating to state interests.

The Failure of the Constitutional Amendment Process to Protect Federalism: A Diagnosis and Treatment Plan

800px-Scene_at_the_Signing_of_the_Constitution_of_the_United_StatesThe national convention method for proposing and ratifying amendments has never been used to amend the Constitution. Its reliance on two-thirds of state legislatures to apply for a national convention to consider a particular amendment has led to an almost universal fear of a runaway convention that would propose wholesale revisions to the Constitution. In this opening installment of the Liberty Forum, Michael Rappaport engages these considerations and urges a rehabilitation of the national convention model.

Responses

Use it or Lose it: Why States Should Not Hesitate to Wield their Article V Powers

A Thought Experiment Inspired by James Madison and Michael B. Rappaport More than two hundred years ago, in his report on the Virginia Resolutions, James Madison observed that the states could have overturned the Alien and Sedition Acts by exercising their Article V power to seek a constitutional amendment for that “object.” Later, in his 1830…

Read More

Is Reforming the Constitutional Amendment Process the Real Solution?

Michael Rappaport offers up some interesting, lawyerly suggestions as to how to stop what he claims is the Constitution’s incessant drift toward centralization and nationalism. His suggestions center on revising the constitutional amendment process so that it might be more accommodating to state interests.

The Middle Way

I am very grateful for Bradley Watson and Nick Dranias for their thoughtful comments on my Liberty Forum Essay on the problems of the national convention amendment process and how to fix them.  I also feel fortunate that these two responses were paired.  While both Watson and Dranias find aspects of my argument worthy of…

Read More