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).

Balkin on Strategic Originalism

Jack Balkin has written an interesting post commenting upon Steven Smith’s and my discussion of strategic originalism. I agree with Balkin that the effectiveness of strategic originalism would turn on the number of originalist judges and whether they are the swing justices. With only one thoroughgoing originalist justice on the Supreme Court at present, strategic originalism will have very limited effect. My discussion, though, was focused not on the present situation, but instead on a more general problem which would also occur even if there were three (or a significant plurality of) originalists on the Court.

Balkin describes my arguments as follows:

Rappaport suggests that originalist judges should threaten to abandon a principled commitment to originalism and impose their personal preferences. Faced with this threat, liberal nonoriginalists will cower in fear and agree to compromise on originalist decisions, because those are likely to offer better results for them than the preferences of conservative judges.

Let’s put aside the hyperbolic language in this description. My point was that a strategic originalism might cause the Leftwing nonoriginalists to have additional incentives to follow originalism, not that it would make them fully originalist. While Balkin does not mention it, I should also emphasize that I ended up recommending against this strategy of strategic originalism, because it would not be as effective as a principled originalism in persuading others to follow originalism. But let me here just focus on Balkin’s criticisms.

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The Equal Rights Amendments and Its Possible Meanings

In the 1970s, the proposed Equal Rights Amendment passed both houses of Congress with the requisite two thirds supermajority and then went to the states for ratification.  The proposed Amendment then quickly secured numerous ratifications (ultimately securing 35 of the requisite 38 state ratifications) and looked sure to pass.  But then the momentum for the Amendment stopped and it never secured the necessary ratifications. A big part of the arguments against the proposed Amendment were that it would lead to certain consequences, which were generally regarded at the time as extremely unattractive.  While opponents of the Amendment argued it might or…

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Heather MacDonald on Proactive Policing

Heather MacDonald argues in the City Journal that a significant increase in violent crime has been the result of a decline in proactive and broken windows policing. Proactive policing involves “pedestrian stops—otherwise known as stop, question, and frisk. Broken windows policing “responds to low-level offenses such as graffiti, disorderly conduct, and turnstile jumping.” Let’s assume, as seems plausible, that MacDonald is correct that such policing is effective and violence crime has resulted from its decline. MacDonald lays the blame for this situation at the feet of a variety of groups, but mainly activist groups such as Black Lives Matter, but also…

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Strategy and Originalism

Over at the Liberty Law  Forum, Stephen Smith has an essay entitled Saving Originalism from Originalists.  Smith’s article raises an extremely important issue: How do originalists cause the Supreme Court Justices to follow the original meaning of the Constitution?  This is a difficult question.  Smith powerfully argues that a strategic perspective is a useful way of thinking about the problem.  Relying on this perspective, Smith argues for what he calls a strategic originalism.  I respond to Smith’s argument here. I have also thought about strategic considerations.  I discuss one strategy for promoting originalism in my response to Smith: Perhaps the biggest obstacle…

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Promoting Originalism: Through Strategy or Principle?

Stephen Smith’s Liberty Forum essay concerns an important question for originalism: How can originalists provide nonoriginalists with an incentive to follow the Constitution’s original meaning? Smith identifies what he regards as a serious problem with originalism: “In a world in which many judges reject original intention as a binding constraint, originalism cannot achieve its goal of judicial restraint unless it has a method of eliciting it from nonoriginalists.” What is needed, according to Smith, is a strategic originalism that provides nonoriginalists with an incentive not to engage in judicial activism. Smith’s essay is interesting and insightful. I have long believed that the problem…

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Constitutional Theory As Game Theory

Stephen F. Smith begins his Liberty Forum essay by quoting from Justice Antonin Scalia’s “Originalism: The Lesser Evil” speech from 1988. There Scalia announces that the Constitution, though it has an effect superior to other laws, is in its nature a sort of ‘law’ that is the business of the courts—an enactment that has a fixed…

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Reactivists We Have Known and Loved (Just One, Actually)

Kudos to Stephen Smith, and kudos to the man behind the curtain (Richard Reinsch) for inviting his essay. What a breath of fresh air. In the current environment, constitutionalism seems unlikely to regain real-world traction any time soon. Surely, though, that must remain the long-term objective. To that end originalism must liberate itself from its…

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The Chicago Police, Police Wrongdoing, and the Ferguson Effect

I regularly read Powerline and I like a lot of what they write, but this post by Paul Mirengoff is really problematic.  He writes that “after the release of the video showing Laquan McDonald being shot and killed by the police . . . arrests have declined and gun violence has spiked.”  He calls this the Ferguson effect, suggesting that it is the result of “reducing police interaction with the public.”  Let me discuss some of the problems with this post.

First, it is outrageous to compare this to Ferguson.  In Ferguson, officer Darren Wilson was shown to have acted properly.  In Chicago, officer Jason Van Dyke’s killing of Laquan McDonald was a vicious murder, shown on video.  The police department and the Mayor’s office covered up the video as long as possible and appear to have engaged in other wrongdoing such as eliminating security footage from a nearby Burger King.  I could go on, but see my earlier posts.  Moreover, there is strong evidence that the Chicago police department is rife with corruption, as 80 percent of squad car video cams have been disabled by the police officers.  “Chicago Police Department officers stashed microphones in their squad car glove boxes. They pulled out batteries. Microphone antennas got busted or went missing. And sometimes, dashcam systems didn’t have any microphones at all.”

As Randy Balko states, “This isn’t a few bad apples. It’s 80 percent. Why haven’t these officers been prosecuted?”

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Carl Auerbach, RIP

Most people reading this will probably not have heard of Carl Auerbach, who died this week at the age of 100, but he was a great and beloved man.

Carl had a long and important life, including being the Dean of the University of Minnesota Law Schools. He was a close adviser to Hubert Humphrey and probably would have been Attorney General had Humphrey not lost to Nixon in 1968. Carl accomplished many things in his career, including publishing the first textbook on the legal process and participating in the classic Skidmore case. He was also a kind of Forrest Gump of the 20th century, knowing many of the famous people. For example, Richard Nixon worked for Carl at the end of World War II.

But for me, Carl was a special colleague, someone who was very much a father figure to me in academia. Carl was the consummate academic, one who insisted on rigor from other academics (as well as from himself).

Carl had very different political views than me, which made our relationship all the more special. Carl was both a socialist (his term) and an anti-communist. Carl used to regale us with stories about this, even though many of us had a hard time accepting his position. After all, we had seen so many socialists who were fellow travelers with communists or at least anti-anti-communists.  But Carl was the real deal. Carl had grown up in an anti-communist family and he watched in post World War II Germany as the Russians took advantage of the West. His views were not welcome to the powers that be and eventually he left for academia. But not before this Forrest Gump met General Patton.

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Anti-Bullying or the Liberal Agenda?

In my last post, I discussed some of the reasons why one might question how well the schools are able to implement anti-bullying programs.

I genuinely don’t know how well government schools are doing in addressing bullying, but this story from New Jersey does not inspire confidence.  As discussed by Eugene Volokh, a sixth grader was found to have committed prohibited “harassment, intimidation or bullying” when he told a classmate that “it’s not good to not eat meat” and that “he should eat meat because he’d be smarter and have bigger brains,” and that “vegetarians are idiots.”

The decision, which was upheld on appeal to an ALJ, appears to have accurately applied the New Jersey statute, which defined “Harassment, intimidation or bullying” as “any gesture, any written, verbal or physical act, or any electronic communication, whether it be a single incident or a series of incidents, that is reasonably perceived as being motivated either by any actual or perceived characteristic, such as race, color, religion, ancestry, national origin, gender, sexual orientation, gender identity and expression, or a mental, physical or sensory disability, or by any other distinguishing characteristic . . . . “

Notice that while the statute is said to be about bullying, that is only partly true.  Like many regulations against harassment, it is focused on the ordinary discriminatory criteria, such as race and gender.  Much bullying is not about that.  It is about harsh treatment for people based on their being a nerd or their interests or their awkward mannerism.  Perhaps that is covered by the “any other distinguishing characteristic” language, but perhaps not. 

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Anti-Bullying: Can the Schools Be Trusted?

One of the new initiatives of government is to act against the bullying of children.  As a general matter, I believe that concern about bullying is a force for good.  As a child, I experienced a little bit of bullying (as do virtually all children) but saw others who were treated much worse.  From my own experience and observations, I can attest to how harmful such bullying can be for a child.

One might argue that parents should be the ones who address bullying but of course parents cannot do the job entirely.  They are often not aware that the bullying is occurring and my guess is that the children who are bullied often had parents who were bullied and therefore would not really know how to address it.  Thus, additional protection would be helpful and government schools appear to be well positioned to intervene.

Unfortunately, government does a poor job of most things and bullying is likely to be one of them.  The standard litany of public choice problems ranging from poor incentives to do a good job, poor knowledge about how to do that job, and the power of special interests and ideological extremists apply in this area no less than others.  And the more jobs that government undertakes, the less likely they are to do each one of them well.

Low test schools and poor learning are just a small part of the problems with government schools.  There are, of course, the problems of teachers unions and disciplining bad teachers.  And most pertinently, there are the absurdities of policies such as zero tolerance.  Thus, no one should be surprised if the schools do a poor job of policing against bullying.

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Is Libertarianism the Law? Part II: Using the Modalities to Support Libertarian Results

In this and my previous post, I argue that the constraints imposed by several liberal positivist theories do not operate to place significant limits on Supreme Court decisions.  Thus, the suggestion of these theorists that the law requires judges to take actions turns out to be largely illusory.  While the law under these theories does place some limits on the justices, those limits are relevatively weak.  To make this argument, I attempt to show how these theories (or at least one of them in this post) would allow a libertarian Supreme Court justice to reach significantly libertarian results.  Since these theorists argue that these theories allow liberal results, it seems clear that the constraints they impose are not substantial.

In my previous post, I briefly described Dick Fallon’s Constructivists Coherence Theory of constitutional law, which requires the justices to decide cases based on five types of constitutional arguments: text, intent, theory, precedent, and values.  Here I will show how a libertarian could use these arguments to reach libertarian results.

Let me start with the text.  While the text might seem like a significant constraint, Fallon’s theory renders it much less substantial because he allows the interpreter to rely on either the original or the contemporary meaning.  Based on either the original or contemporary meaning, the text of the Takings Clause, the Privileges or Immunities Clause, the Contracts Clause, the Ninth Amendment, and the Due Process Clause could strongly support libertarian results.  (Other clauses might also be important, such as a First Amendment protection of commercial speech.)        

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