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).

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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The Original Ghostbusters: A Free Market Gem

This summer there is a remake of the classic 1980s picture, Ghostbusters.  Much of the controversy involving the remake is over the replacement of the male characters with female ones.  I don’t have any view as to whether or not this replacement is a good idea or whether the movie will either be funny or good. But it is worth pointing out one very significant feature of the original film: it was one of the most free market movies of the last several generations.  Consider the following:  The villain of the film – a Mr. Walter Peck – is an EPA agent who…

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Hong Kong

Recently, I visited Hong Kong and China for the first time.  Traveling to Hong Kong was a lifelong dream for me, as I have long admired the economic freedom that it possesses.  But how would the real Hong Kong appear to me, as opposed to the theoretical place that topped the Economic Freedom lists?  And would Hong Kong be significantly changed, given the 20 years it has been under Chinese control? I thought the real Hong Kong was incredible.  This city of skyscrapers was absolutely beautiful, with a skyline that rivals and perhaps surpasses any city in the world.  Hong Kong…

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The Improper Comments of Ruth Bader Ginsburg

Supreme Court Justice Ruth Bader Ginsburg is now 83 years old.  One often hears it said that she ought to step down.  By now, Ginsburg has a set response to this criticism: She says that she is not the only old justice.  She notes that Kennedy is about to turn 80 and Breyer is going to turn 78.

I have no idea whether Ginsburg is too old to perform her duties.  What I do know is that Ginsburg appears increasingly prone to making politically inappropriate statements.

In an interview last week, Ginsburg made several improper statements. First, Ginsburg gave what the New York Times describe as “an unequivocal endorsement of Judge Garland,” who President Obama had nominated for the Court but the Senate has refused to consider.  It is normally considered improper for a Supreme Court justice to comment on a politically charged issue of this type.

In addition, Ginsburg also asserted that the Senate had an obligation to assess Judge Garland’s qualifications, stating “that’s their job” and “there’s nothing in the Constitution that says the president stops being president in his last year.”  Not only do I regard this comment as mistaken, it is once again inappropriate.  The President remains the President, of course.  The Senate has simply decided not to act on this nominee.  Ginsburg’s argument reads like Democratic Party talking points.

Second, Ginsburg made critical comments about Republican presidential nominee Donald Trump.  She stated “I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president.”  She also suggested that if Trump were elected, it would be time to move to New Zealand. 

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Kevin Durant, Disastrous Decisions, and Institutional Failures

The signing of Kevin Durant by the Golden State Warriors is an enormous issue for professional basketball, but also has wider lessons for the problems with our institutions.  It helps explain what accounts for disastrous decisions in modern institutions.

For those who are not basketball fans, Kevin Durant is one of the top basketball players in the world.  He used to play on the Oklahoma City Thunder, a title contending team.  Durant became a free agent this summer, allowing him to sign with any other team in the league that had the ability to pay him the top salary his talent demanded.  Each team is subject to a variety of rules as to how much salary they can pay, so not all teams would have been able to pay Durant that salary.

Earlier this week, Durant announced that he would be signing with the Golden State Warriors.  For nonbasketball fans, the Warriors were the defending NBA champions and the dominant team this past year, breaking the record for the best overall record (with a 73-9 season), but losing in the finals in 7 games to the Cleveland Cavaliers.

Durant going to the Golden State Warriors is a disaster for the NBA.  For many people, this means there will be no real competition for the NBA championship.  Even if that is premature, for one of the best players in basketball to join Stephen Curry and the Warriors does violence to the notion of NBA competitiveness.

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Other Advisory Acts That Are Constitutional: The Legislative Veto and the White House Staff

In my last post, I argued that a national referendum on some important issue, such as whether the U.S. should withdraw from NATO or the UN, would probably be constitutional so long as it was nonbinding.  That it was technically nonbinding would not prevent the relevant decisionmaker -- say the President -- from choosing to follow the referendum's result. This aspect of the Constitution is not unique.  There are various other areas where technically nonbinding acts are allowed (and often followed), even though they would be unconstitutional if they were binding.  One involves the legislative veto.  A binding legislative veto, where…

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National Referenda and the U.S. Constitution

One interesting aspect of the Brexit decision was that it involved a legally nonbinding referendum. The UK Parliament was not legally bound to follow the result, but nearly everyone accepts the result, with a statement like, the people have spoken and we have to follow it. I think part of the reason for this is that prior to the vote, it was recognized that this decision would be decisive, even though it was technically nonbinding. Thus, it would be morally illegitimate not to follow the decision because one did not like the result. Keith Whittington makes a similar point about…

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Starvation and Socialism in Venezuela

I don't often complain about the bias in New York Times stories -- since it is so common that one could easily blog about that and nothing else -- but this story about starviation in Venezuela particularly caught my attention. In what is a pretty long story, the Times does not deem it fit to even raise the possibility that the food shortage in Venezuela is due to the socialism pursued by its leaders. This is not all that surprising. The typical Times reader probably does not draw the connection, so why should the newspaper. The article actually makes it sound in…

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Originalism and the Second Amendment

I thought I would weigh in on the dispute between Mike Ramsey and Chris Green on originalist theory and the Second Amendment.  Ramsey writes:

Suppose that it’s right that concealed carry restrictions were common in the founding era and no one thought they infringed any constitutional right. Is Professor Dorf suggesting that they nonetheless could be unconstitutional today? I can’t imagine how, as an originalist matter, that could be so. Perhaps if the text of the constitutional restriction were wholly incompatible with the founding era belief, we would say that people in the founding era had made an error. But here the language is at best ambiguous on the right to concealed carry (even if one thinks “bear[ing] Arms” means carrying them in public). If the language can be read in a way that comports with the consensus founding-era understanding of it, that seems pretty conclusive to me.

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