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).

The DEA’s Classification of Marijuana as a Schedule I Substance

Recently, the Drug Enforcement Agency once again declined to change marijuana’s classification from Schedule I to Schedule II.  While not unexpected, to my mind this is one of the least defensible decisions of current government policy.

A bit of background may be helpful.  Schedule I substances are defined as having “no currently accepted medical use in the United States, a lack of accepted safety for use under medical supervision, and a high potential for abuse.”  Examples of substances in this category are heroin, LSD, and Ecstasy.

Schedule II substances are defined as having “a high potential for abuse which may lead to severe psychological or physical dependence.” Examples in this category are methadone, OxyContin, morphine, and Adderall.  While schedule II substances can be prescribed for medical treatments, schedule I substances cannot because there are “no currently accepted medical uses.”

Schedule III substances are defined as having “a potential for abuse less than substances in Schedules I or II [where] abuse may lead to moderate or low physical dependence or high psychological dependence.” Examples include Vicodin and anabolic steroids such as Depo-Testosterone.

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Originalism, Changing Meanings, and Stable Meanings

One of the criticisms made against originalism by historians is that originalism fails to take into account that word meanings change over time.  In particular, historians argue that during important periods, such as the time leading up to the Constitution, word meanings changed.  Therefore, originalism is problematic because it assumes that traditional word meanings are stable. Unfortunately, this charge by historians turns out to be largely mistaken.  If some originalists assume that word meanings were stable, then that would be an argument against those originalists.  But it would not condemn originalism generally, since nothing in originalism requires that word meanings be…

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The Tiers of Scrutiny: A Public Choice Analysis

In my last post, I discussed Justice Clarence Thomas’s criticism of the Supreme Court’s tiers of scrutiny jurisprudence.  Given Thomas’s criticism of the tiers as both made up and inconsistently applied, one might wonder why the Supreme Court follows this approach.  My explanation is one that relies on a public choice theory of the justices.  The Supreme Court follows this approach because it enhances – perhaps maximizes – its power. One might question that the Supreme Court’s power is enhanced by the tiers of scrutiny jurisprudence.  After all, the tiers seem to involve rules of a sort that would arguably limit…

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Justice Thomas on the Tiers of Scrutiny

In a prior post, I noted Jeffrey Toobin’s criticism of Justice Clarence Thomas for Thomas’s claim that since the New Deal, the Supreme Court’s constitutional doctrine has become an ‘unworkable morass of special exceptions and arbitrary applications.’”  Interestingly, Toobin never argues that Thomas’s claim is mistaken.  Toobin seems to feel that voicing the criticism of the Court is itself worthy of censure, whether or not it is true.  But in my view, Thomas’s claim is both true and damning.

In his dissent in the Court’s most recent abortion case, Whole Woman’s Health v. Hellerstedt, Justice Thomas offers two basic criticisms of the Court’s tiers of scrutiny jurisprudence: the tiers are not in the Constitution and that they are followed only inconsistently by the Court.

1. The Supreme Court generally employs three tiers of scrutiny: rational basis, intermediate, and strict scrutiny. Thomas first argues that these tiers are not in the Constitution. He claims that the Court has made them up, which Thomas focusing his criticism on the famous case of Carolene Products.  Thomas argues that the Court, in a footnote that was “pure dicta,” attempted to justify its special treatment of certain personal liberties like the First Amendment and the right against discrimination on the basis of race.

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Millennials, Technology, and Short Attention Spans

Obviously, the way in which culture and ideas are presented have changed in recent decades.  One often hears that we are in a world of short attention spans.  Thus, people don’t read books anymore.  They read short pieces on the internet, like blogs.  People don’t listen to albums any more, they download songs instead.  This short attention span is also thought to be reflected in the use of cell phones, with people constantly multi-tasking and not being able to focus on one matter at a time.  All of this is sometimes thought to be a reflection on the undisciplined habits of mind of the younger generation.

But that’s not my view.  To begin with, it seems clear to me that the causation runs in the opposite direction.  It is not the short attention span or undisciplined minds of the young that is causing this.  Instead, it is the technology that promotes these behaviors that is the primary cause. Part of the proof for this is that older people, who presumably had more disciplined minds back in the day, often behave in much the same way as the younger people when using this new technology.

Another problem with a short attention span being the cause of this behavior comes from the world of modern TV shows, especially of the pay TV or cable variety.  The old style TV shows could be watched in any order.  They were designed that way.  One could watch All In The Family or ER in pretty much any order.  There was a reason for this: in a world with either no or limited VCRs, people could not be expected to catch every TV show in order.

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Is SCOTUS a Good Reason to Support Trump?

Reason.com has a piece by Damon Root asking various libertarian and conservative legal experts what they think about the matter.  There are a range of answers.  Here is my response: I certainly believe that the future of the Supreme Court is "a reason" to support Trump. There are no assurances, but I do believe it is likely that he will choose someone from the list he issued previously (or someone similar). Is it a strong enough reason to overcome the other reasons not to vote for him? To me, it depends on one's perspective. If one is simply voting for the candidate…

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Media Policy and Government Failure

Recently, I had a conversation with a liberal law professor about government policy and bias in the media.  I argued that there was government failure.  The media was dominated by liberals and the government supported liberal public television and radio, which reinforced that domination.  This could not be justified.  Instead, it was an example of the dominant group exercising their power in both the private and government sphere.

The professor countered that while public broadcasting was liberal, the private media was capitalist, implying that public broadcasting was providing something that was missing from the private sector.

I thought of this conversation the other day when I read the New York Times the morning after Hillary Clinton’s acceptance speech at the Democratic National Convention.  During the entire Republican Convention, including after Donald Trump’s acceptance speech, the Times had negative headline after headline.  I should have taken a screenshot of it, but did not think to do so ahead of time.  But after Clinton’s acceptance speech, I did take a screen shot.  The stories were uniformly positive, and in some cases triumphant.  The titles: “Clinton Declares Election a Moment of Reckoning,” “Nomination Claimed and a Barrier Falls,” “Clinton Makes History, and Wears It, Too,” “Writing Her Own Story,” and on and on and on.  No one could reasonably claim that the Times was impartial about these matters. 

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Baude on Tillman on the Constitution’s Provisions Regarding Officers

One of Justice Scalia’s primary influences on constitutional law and theory has been the growth of originalist textualism – the view that takes close textual readings of the Constitution seriously and draws important consequences for constitutional law from the text rather than someone’s view of what is normatively desirable.  One of the people who has a particular keen interest in such textual differences and their consequences is Seth Barrett Tillman, who has over the last several years sought to closely examine seemingly minor textual variations and to draw significant consequences from them.

In Jotwell, the Journal of Things We Like, Will Baude summarizes and appreciates Seth’s scholarship in this area.  Will explains how Seth has looked at various terms in the Constitution —  “Officer,” “Officers of the United States,” “Officer under the […] United States,” “Public Trust under the United States,” “Offices of Honor/Trust/Profit under the United States,” and “Office under the Authority of the United States.”  Could each of these terms really have distinct meanings?  For many years, even originalist textualists have often assumed the answer is no.

But Seth argues there are important differences between these terms.  Will discusses some of the interpretations and evidence that Seth has used to justify these distinctions.  And he has an extremely useful chart with all six categories and the meanings offered by Seth. 

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Toobin on Justice Thomas’ Alleged Arrogance

While I was on vacation, Jeffrey Toobin published a hit piece on Clarence Thomas in the New Yorker entitled “Clarence Thomas Has His Own Constitution.” Sadly, the piece is filled with problematic criticisms of the justice.

Happily, the piece starts with a bit of a defense of Thomas against criticisms. While many people criticize Thomas as either a Scalia clone or not hard working, Toobin acknowledges that these charges are not true. In fact, Toobin notes that Thomas is by far the most active writer on the Court, with twice as many opinions as his nearest competitor on the Court. Moreover, many of Thomas’ opinions are solo opinions that were not joined by Scalia.

But that leads Toobin to his criticism of Thomas. Toobin in essence claims that Thomas is an arrogant conservative, placing his own views over those of his fellow justices and the Court generally (although Toobin does not use the term arrogant). As Toobin puts it:

It’s an act of startling self-confidence, but a deeply isolating one as well. Even his ideological allies, who mostly come out the same way on cases, recognize that they must dwell within the world that their colleagues and predecessors created. Thomas, in contrast, has his own constitutional law, which he alone honors and applies.

While I agree with Toobin that Thomas is the justice pursuing originalism most consistently on the Court, I don’t agree with the implicit criticisms that Toobin asserts.

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Reflections on China

I recently visited China for the first time.  Here are some of my impressions.

My main motivation for visiting China was to see a place that was as different from the West as possible, but also had a significant, ancient civilization.  In many ways, China did not disappoint.  Its history, despite the Silk Road, is largely independent of the West.  But it involves millennia of economic and cultural development.

Today, though, China seems a mix – of capitalism and communism.  The flashy new China of Shanghai strikes one as capitalistic.  But the authoritarian state that strictly controls information is communistic.  China also seems a mix of West and East.  The people dress as westerners in much of the country, yet the culture differs from the West in oh so many ways.  There are a range of things that one comes upon daily that seem alien.  For example, interactive norms such as queuing and matters of personal space struck me as quite different in China.

The diversity of the country was striking.  That there are different dialects of Chinese – Mandarin and Cantonese – is of course well known.  But there are also significant differences within these dialects that are very interesting.  For example, I was surprised to learn that the Mandarin spoken in Shanghai is quite different than that spoken in Beijing, and that the Shanghai version is similar to Japanese, allowing Shanghai speakers to understand significant amounts of Japanese (while the Beijing version does not permit this).

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