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).

Living Constitutionalism on the Supreme Court’s Website

Six years ago, I wrote a post about how the Supreme Court’s website adopted the language of the Living Constitution approach.  (I had been expanding on a post by Eugene Volokh.)  It was curious that Justices Scalia and Thomas, as well as other fellow travellers of originalism, including the Chief Justice, would allow this language to continue.   At the end of the post, I wrote that “it will be interesting to see whether this is changed and if so, how long it will take.”  I just checked back to see whether there had been a change, but none has occurred. …

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Restricting Entry into the Hospital Market

I have started to blog about how the health care system, even before Obamacare, substantially diverged from a free market system.  This occurred in both obvious ways, such as Medicare and the tax advantage for employer provided health insurance, and in less obvious ways. One of the less obvious ways is the restriction on building hospitals.  A key feature of any free market is that there be no legal barriers to entry.  One of the sure fire signs of a troubled economy, as seen throughout the developing world, is that there are restrictions on entry of businesses into a field.  Some…

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Obstruction of Justice and the Unitary Executive

Obstruction Of Justice

There has been much talk about President Trump’s statement to James Comey that he hoped that Comey could let the issue of prosecuting Michael Flynn go.  Some people see in this statement an order that Comey not prosecute a criminal wrong, while others see merely a hope or request (but not an order) that Comey not prosecute.

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Free Market Health Care and Competition as a Discovery Procedure

Stethoscope on a stack of money

One of the most frustrating aspects of the debate about how health care should be governed is the mistaken claim that the world prior to Obamacare involved free market health care.  This, of course, is nonsense.  That health care world was the product of a mixed system – of markets in health care combined with a myriad of government regulations combined further with the government provision of health care under various programs.  In my view, this system is responsible for many of the infirmities that people complain about with respect to health care and health insurance, such as problems with preexisting conditions, cost escalation, bureaucratic procedures, and health insurance access problems for people with low income.

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An Independent Counsel for Civil Violations

In the past, I have written a significant number of posts about how the independent counsel procedure might be improved and employed.  See, e.g. here and here.  Here is another one. One problem with the independent counsel is that it focuses on criminal violations.  The IC focuses on whether an individual violated the criminal law, should be prosecuted, and imprisoned.  Sure some people violate criminal statutes and should be punished.  But it is often more important to determine whether laws were violated than to put a politician in jail.  Yet, the IC does not investigate the former. There is a way that…

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Original Methods Originalism Part III: The Minimization of the Construction Zone Thesis

In this third post on Original Methods Originalism, I want to conclude by explaining how original methods has the potential for signficantly limiting the discretion that judges exercise under an originalist approach. One of the key issues in recent originalist theory involves the distinction between interpretation and construction.  For my purposes, it is not the distinction between interpretation and construction, but the distinction between interpretation and the construction zone that is important.  Interpretation involves the process for determining the actual meaning of a constitutional provision.  After applying the interpretive process, it is possible that the original meaning may not decide the…

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Original Methods Originalism Part II: The Convergence Thesis and the Language of the Law Thesis

In my last post I discussed the basic idea of original methods originalism and the different versions of that interpretive approach.  Here I want to note a very significant implication of Original Methods Originalism: the possible convergence of original intent and original public meaning.  I then want to discuss another aspect of original methods – the view that the Constitution is written in the language of the law and therefore should be interpreted as a legal document. The Convergence Thesis The different versions of original methods discussed in my prior post also have important implications for how originalism is conducted.  For many…

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Original Methods Originalism Part I: The Basic Idea and the Different Versions

One approach to constitutional originalism is called original methods originalism, which John McGinnis and I have developed.  While the theory has received significant attention, the overall relationship of the different parts of the theory have not always been understood.  Therefore, I thought it would be useful in a couple of posts to discuss various aspects of the theory and how they relate. In these posts, I will explore 5 different aspects of original methods originalism: 1) the basic idea, 2) the different versions of original methods, 3) the convergence thesis, 4) the language of the law thesis, and 5) the minimization…

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Investigating Illegal Government Action

The firing of James Comey and the appointment of a special counsel have once again raised the issue of independent counsels and how we address government wrongdoing.  I have long thought about this issue, proposing various different solutions to the problem. The basic problem is that we simply do not have adequate institutions in place to address government wrongdoing.  During the late 1970s until the end of the Clinton Administration, the Independent Counsel statute was in place.  The statute had many significant defects, although it did have some virtues.  One virtue was that it had a uniform standard – although probably…

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Amending the Constitution Through Direct Democracy

Over the weekend, I attended a great conference at Stanford Law School entitled, A Big Fix: Should We Amend Our Constitution.  The idea for the conference was to have various people propose constitutional amendments.  Some years ago, I proposed a constitutional amendment of my own as part of the Room for Debate feature of the New York Times.  See here and here. My job was to comment on Sandy Levinson’s proposed amendments to the Constitution.  While Levinson proposed various provisions, his most interesting proposal was for constitutional amendments to be enacted through direct democracy.  Under Levinson’s proposal, 10 percent of those…

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