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).

Against National Injunctions

The Trump executive order temporarily barring travelers from 7 countries has once again raised the issue of a single federal district court issuing a nationwide injunction.  This type of injunction was also used against the Obama Administration’s deferred action program (DAPA).  In my view, these type of injunctions are extremely problematic. Samuel Bray, an expert on equity, has written about the serious problems with these injunctions.  In this short piece, he notes three basic problems.  The first is the problem of forum shopping.  The plaintiff simply chooses an hospitable circuit in which to file the case.  The Ninth Circuit for the…

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An Institutional Analysis of the Present Political World

What are we witnessing these days?  Clearly we are witnessing a war of sorts, but who is it between and what are the weapons?  In a broad sense, it is between conservative and liberals, but only in the broad sense.  Many conservatives oppose Trump, and many Democrats in the rust belt supported him.  So it is complicated. Perhaps it is easier to look at the matter from an institutional perspective.  Which institutions are supporting Trump and which are opposing him? If one looks at American society, it is clear that most of the governments are controlled by Republicans.  At the federal level,…

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The Language of the Lame Duck Pardon Amendment

A short while ago, I wrote a post advocating that we amend the Constitution to eliminate lame duck pardons.  While such a reform might seem small, it would be beneficial, it might secure the bipartisan support necessary to enact an amendment, and it would revive the moribund amendment process which is necessary to a beneficial originalism. But having an idea about what an amendment should do and writing the language of that amendment are two different things.  Stephen Sachs, an originalist from Duke Law School, saw the post and tried his hand at drafting an amendment.  Steve has both more taste…

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Sunstein’s Critique of Originalism

In his most recent column, Harvard Law Professor Cass Sunstein criticizes originalism: But originalism is just one of many possible approaches to the Constitution. If it is taken seriously, there is a good argument that it would produce results that most Americans would despise -- and that any Trump nominee should be asked about. For example, originalism could easily lead to the following conclusions: States can ban the purchase and sale of contraceptives. The federal government can discriminate on the basis of race -- for example, by banning African Americans from serving in the armed forces, or by mandating racial segregation in the D.C.…

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Questions About Obama’s Syrian Refugee Policy

Sometimes I think following politics is just crazy.  It is as if one is being manipulated by someone for their own purposes, except I’m not quite sure who that person is. Take the recent controversy over the pausing of Syrian refugees.  The conventional understanding has been that Obama allowed a significant number of Syrian refugees into the country and that Trump wants to reduce or eliminate those refugees.  But this account, while not entirely false, is extremely misleading.  According to David French at National Review, supported by the State Department website, here are the number of Syrian refugees admitted in the…

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Protecting Freedom of Speech on College Campuses

In a  recent post, I discussed the use of left wing institutions by the right.  Here I want to discuss a specific idea for promoting a so called right wing idea – protection of free speech on college campuses from violence and other disruption – by using the methods that the left has employed in the past. A common problem on both public and private campuses is that violent and disruptive protesters prevent right wing (and other controversial) speakers from giving speeches and presentations on campuses.  In addition to preventing the events from being conducted in an orderly fashion, the threat…

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Using Left Wing Institutions for Right Wing Purposes

While I am often critical of the left, there is one area where one must admire their accomplishments: the left is extremely good at designing institutions that promote their agenda.  In fact, some of these ideas have been so good that the right has copied them, with success. One traditional area where the left has promoted its agenda is through “public interest” law firms.  The various law firms, such as the ACLU and the NRDC, bring lawsuits that have had enormous impact.  Over time, the right has formed its own law firms which have also had significant effects. Another area where the…

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Let’s Pass a Constitutional Amendment Prohibiting Lameduck Pardons

I believe that the constitutional amendment process is essential to originalism and to a desirable constitutional law.  One of the most disturbing things about recent generations is that no constitutional amendment has been proposed and ratified since the 26th Amendment guaranteeing the right to vote to 18 year olds was enacted 1971.  (The 27th Amendment was proposed in 1789 and ratified over two centuries, receiving its last state vote for ratification in 1992). One result of this failure to employ the constitutional amendment process is that the process is atrophying.  As a matter of political psychology, people do not think enough…

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More on Radical and Moderate Originalism

My last post distinguished between radical and moderate versions of originalism. This post discusses a few more aspects of the distinction and assesses my own views as radical or moderate. First, one sees the original and moderate versions assumed in debates about originalism. Some people claim that originalism would require radical changes in existing doctrine, and use that to criticize originalism. Other people defend originalism by denying it would be radical, in effect saying it would only be moderate. By contrast, some radical originalists view their radical interpretation as morally beneficial because it conforms with their political philosophies. Others then attempt to criticize…

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Radical and Moderate Originalism

Here I want to draw a distinction between two types of originalism: between a radical originalism and a more moderate originalism. The radical originalist believes that the Constitution’s original meaning establishes a regime that is extremely different from the current legal regime.  The easiest way to get a radical view is through a strong federalism.  If one believes that the Commerce Clause is narrow, that there is no Spending Power, that the Necessary and Proper Clause is very limited, then one can generate a regime that holds Social Security to be unconstitutional, that places significant limits on paper money, and that…

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