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).

Does a Judge Who Decides a Matter within the Construction Zone Enforce the Constitution? A Question About Construction

One of interesting questions in originalist constitutional theory is the relationship between theory and text.  Some originalists focus on originalist textual arguments, while some originalists argue, as a matter of theory, for originalism, but do so based on theory.  While this is a complicated matter, there is clearly room for both types of arguments.

This issue arises as to the practice of “construction.”  In originalist theory, some scholars draw a distinction between interpretation and construction.  Interpretation is the practice of determining the original meaning.  But what if, as these advocates of construction argue often happens, the original meaning runs out (that is, there is no original meaning as to an issue because the constitutional language is ambiguous or vague)?  Then, those scholars argue that the matter is within the “construction zone” and one must look outside the Constitution to answer it.  For these scholars, having to look outside the Constitution is not a choice that a judge makes.  It is simply the inevitable result of the original meaning running out.

In my own work with John McGinnis, we have been skeptical about construction and have argued that appropriate interpretive rules would avoid (or at least minimize) the need for construction.  But for purposes of this post, assume that we are mistaken and that construction is an important element of constitutional adjudication.

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Israel and Double Standards: The Palestinian Refugees

Israel is subject to all sorts of double standards. This happens over and over again. One area where this is the case involves Israel’s treatment of its non-Jewish citizens. Israel is said to be an apartheid regime, even though it confers equal rights on its non-Jewish citizens. The harsh treatment by Arab states of non-Muslims is often barely mentioned. Another area involves the UN’s special rule for refugees. Many Israeli critics don’t realize that Palestinian refugees would not be considered refugees if they were former residents of any other place in the world. But because the U.N discriminates against Israel, many more Palestinians are treated as refugees. As Wikipedia states:

Palestinian refugees from 1948 and their descendants do not come under the 1951 UN Convention Relating to the Status of Refugees [which governs all other refugees], but under the UN Relief and Works Agency for Palestine Refugees in the Near East, which created its own criteria for refugee classification. The great majority of Palestinian refugees have kept the refugee status for generations, under a special decree of the UN, and legally defined to include descendants of refugees, as well as others who might otherwise be considered internally displaced persons.

But perhaps the greatest double standard is the attention that the world—especially Europe, the Muslim world, and the Left in the United States—pays to Israeli actions. If there is a conflict in Israel, it is front page news. In the many other places throughout the world, not nearly as much. Usually, this attention is focused on criticisms of Israel.

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Global Warming: Lukewarmers, Consensus, and Personal Attacks

I am not a climate scientists, but like many others I have a position on global warming.  My position is that of a lukewarmer.  I believe that significant increases in carbon dioxide lead to increases in temperature.  I just don’t believe those increases in carbon dioxide lead to the dangerous amount of global warming that most global warming alarmists assert.  In other words, emissions of carbon dioxide lead to some global warming, just not dangerous amounts of such warming.

The main reason for my belief is that the alarmist argument does not rest simply on carbon dioxide leading to increases in warming.  Instead, the degree of warming asserted by alarmists involves much larger secondary effects – secondary effects, such as the claim that the initial degree of warming from carbon dioxide leads to additional warming from things like increased water vapor.  While the scientific case for the claim that carbon dioxide increases temperatures is strong, the scientific case for the much larger secondary effects is, to put it mildly, much weaker.

For an excellent discussion of the Lukewarmer position and for a variety of interesting aspects of the global warming debate, see this podcast with Matt Ridley at Econtalk, one of our sister sites.  

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The Unconstitutionality of Social Security and Medicare

Government social insurance creates some of the most serious problems in western style democracies.  At best, these government insurance programs place tremendous strain on the economy and reduce work incentives.  At worst, they may result in the bankrupting of the society.  In the United States, Social Security pensions and Medicare are the worst culprits.

There are, moreover, alternative arrangements that would avoid these problems.  Some people may favor a fully voluntary system.  Others may favor more government involvement, such as a compulsory private system in which individuals are required to save certain amounts for their retirement or are required to purchase health insurance on some kind.  (For a discussion in the context of unemployment insurance, see here.  For a book comparing private and government insurance more generally, see here.)

While there are arguments for each of these systems, the important point is that they would not involve redistributions.  In particular, they would not require the massive redistributions that these existing systems make from one generation to another – redistributions that are unfair, inefficient, and cause serious political problems. 

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Executive Usurpation and the Iran Deal

Most of the commentary on the Iran deal has focused on whether it is desirable or not – more particularly, whether this obviously imperfect deal is better than the alternative.  While I don’t have expertise in these matters, my view for what it is worth is that the deal is a bad one that could turn out to be disastrous.  We would be better off doing all we can to maintain the existing sanctions regime than signing on to this seriously problematic deal.

But the badness of this deal is not the focus of this post.  Instead, it is that this deal represents yet another example of President Obama violating the law to pursue his objectives — objectives which could not lawfully be enacted.  And this deal may represent the single worst policy outcome of all of Obama’s illegalities.

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Garrett Epps in the Atlantic on Clarence Thomas

In the Atlantic, Garrett Epps has a piece on Clarence Thomas.  I like Epps.  He has been to two of the Originalist Conferences that I run and his presentations and writing are lively, entertaining, and thoughtful.  And his book on the 14th Amendment was quite enjoyable.  But Epps’s politics are far to the left of Clarence Thomas’s and therefore it is not surprising that he is very critical of Thomas.  In fact, I think Epps was quite unfair to Thomas.  I thought I would respond to some of his major points.

First, Epps starts his piece discussing how Thomas’s confirmation involved charges by Anita Hill that Thomas had sexually harassed her during their tenures at the EEOC.  Epps notes that the “experience left him embittered.”  While Epps sort of presents both sides, he neglects an obvious inference.  The most likely reason that Thomas would have been so embittered by the experience is that he believed the charges were false.  To be clear, I don’t know what happened between the two.  But the failure to note this obvious explanation for Thomas’s reaction is disappointing.

Second, Epps complains that Thomas’s dissent in Obergfell, the same sex marriage case, did not mention the “key gay-rights precedents.”  This complaint is curious.  Thomas joined the three other dissents, which did mention these precedents.  Thomas wrote separately to discuss the original meaning.  Since Thomas had already indicated that he did not believe these dissents reflected the original meaning, he did not need to do so again. 

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More of Lincoln on Departmentalism vs. Judicial Supremacy

Just when I thought was done with Departmentalism vs. Judicial Supremacy, they pull me back in again!  In my last post, I quoted Abraham Lincoln’s famous statement about Dred Scott in his first inaugural: “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers” (emphasis added).  I noted that one might interpret this as expressing the view that a series of decisions might…

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Impeachment of the IRS Commissioner

I have long believed that the House Republicans should be using their impeachment power against the IRS.  I thought that they should have seriously considered impeaching Lois Lerner (although I suppose there is question whether she was a constitutional officer).  I certainly believe that they should consider whether to impeach IRS Commissioner John Koskinen and other relevant IRS officials.  (Note: the House impeaches or accuses; the Senate tries the official and can convict with a two thirds majority.)

It is true that an impeachment of the IRS Commissioner will not directly affect the President or the White House.  But it is important to use the tools that the Congress has to police wrongdoing and impeachment is one of them.

Impeachment will punish the wrongdoing of officials in an entirely constitutional way.  The accused person will have the spotlight on them and their acts will be exposed to the public.  If they are removed from office, they will be in disgrace.  Moreover, the media will find it much harder to ignore the issue, both because of the unusualness of an impeachment and because of the drama that it establishes.  Impeachment will command the attention of the country in a way that simple oversight hearings do not.

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Six Posts on Departmentalism and Judicial Supremacy

Yesterday, I completed my series of posts on departmentalism and judicial supremacy.  My main point is that the issue turns largely on the history and that, while more research is needed, one real possibility is that the correct rule is a moderate judicial supremacy. Here are the original five posts: Departmentalism versus Judicial Supremacy – Part I: Some Preliminary Distinctions Departmentalism versus Judicial Supremacy – Part II: Getting from Departmentalism to Judicial Supremacy Departmentalism versus Judicial Supremacy – Part III: Some Thoughts on the History Departmentalism versus Judicial Supremacy – Part IV: The Argument Based on the Constitution Being a New System Departmentalism versus Judicial Supremacy…

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Departmentalism versus Judicial Supremacy – Part V: The Content of the Executive and Legislative Obligation to Follow Judicial Precedents

In this post, I want to draw together some of my earlier posts to explore what the norm of judicial supremacy might be.  Let me remind the reader of two points from my prior posts:  First, the content of the executive and legislative obligation to follow judicial precedents turns in significant part on the relevant practice at the time of the Constitution’s enactment.  Second, there is a similarity between the argument for judicial precedent (which require courts to follow judicial precedent) and the argument for judicial supremacy (which require the executive and legislature to follow judicial precedent).

While I have said that there does not appear to be evidence of genuine departmentalism at the time of the Constitution – of the executive and legislature being entirely free to ignore judicial precedents – it is not clear what the practice was.  One possibility is that the executive and legislature were bound to follow the courts once a single case (that is, precedent) was decided.  Another, in my view more likely, possibility is that a series of decisions by the courts reaching the same result were required before the executive and legislature were obligated to follow the judicial precedents.

One bit of evidence for this latter view is that this appears to have been the rule as to a court’s obligation to follow its own precedent.  A single precedent did not appear to obligate a court to follow that precedent.  Such a precedent needed to be considered, but it was not binding.  Rather, it was a series of precedents that obligated a later court to follow the precedent.  See here.

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