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).

How Politics Makes Us Stupid – Vox Edition

Recently, I have taken to reading the website Vox, started by Ezra Klein based on the view “that current news websites [do] not provide enough context to the stories they cover.”  I agree that Vox provides a lot of background, which makes it attractive.  I also read it because I like to have access to different political perspectives, and Klein’s is certainly that.

A recent article on Vox illustrates the benefits and costs of the website.  The piece “How Politics Makes Us Stupid,” written by Ezra Klein, discusses the work of Yale Law Professor Dan Kahan, which argues that people often reject evidence because of the social effects that accepting that evidence would produce.   Kahan’s theory is called Identity-Protective Cognition.  As Klein quotes Kahan, “as a way of avoiding dissonance and estrangement from valued groups, individuals subconsciously resist factual information that threatens their defining values.”  The idea is that if someone suddenly accepted arguments from a different ideological perspective, their friends and support groups – which are organized ideologically – would criticize them and most people are unwilling to accept that.

The idea is quite interesting.  To my mind, it is not simply that one’s support groups would attack one for straying from the party line; it is also that those same groups praise us when we further their values.  When one adds these motivations to the ideological passions, the effect is very powerful.

What is funny is that Klein appears to recognize, at least implicitly, that “identity protective cognition” applies to both the left and the right, but the article is filled only with examples of right wing people rejecting evidence – whether it be Justice Scalia, Sean Hannity, or more generically people who reject climate change.  It is as if Klein wants to suggest that people on the left are not motivated by such considerations.  It would be funny if it weren’t so sad. 

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Is the Tide Turning on the Rape Culture Crusade?

For a time now, the crusade to declare a rape culture on campuses and to address it through a series of standards that denies accused males a variety of due process protections has been progressing largely unimpeded.  Perhaps the high point was the California affirmative consent statute and the Rolling Stone article on the alleged University of Virginia rape at a fraternity.

But since those two events, there has been a significant pushback against the crusade.  Of course, the crumbling of the Rolling Stone article has been important, showing once again (after Duke, after Hofstra, etc, etc.) that such allegations are sometimes not credible.  But it has also been 28 Harvard Law Professors – mainly of the left – who have attacked the one sided standards at Harvard.

Now comes an excellent article by Emily Yoffe who writes the Dear Prudence column at Slate.  Yoffe is no right winger (in fact, I have sometimes disagreed with her advice from my own political perspective) and has very mainstream media credentials.

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The Commerce Power and Constitutional Structure: Counterarguments

In my prior two posts here and here, I discussed why even the narrowest view of the commerce power under modern precedents – Lopez and Morrison – is inconsistent with the constitutional structure because that view renders several other enumerated powers redundant.  Here I discuss whether there are any counterarguments to my position.

One counterargument is that redundancy is not a serious matter since the Constitution contains clear redundancies.  I disagree with this view.  The standard way of writing formal legal documents, especially short ones, like the Constitution was to avoid redundancies.  As a result, courts interpreted the document to avoid reading it to contain surplusage – including in the landmark case of Marbury v. Madison.  (On the argument for following interpretive methods at the time, see here.)

It is true that the Constitution does contain a few redundancies, such as Congress’s power to establish inferior federal courts in both Article I, section 8 and in Article III, section 1.  Sometimes one can come up with an explanation for a redundancy — with the second provision added for clarification or as a limitation.  But if not, one must accept it as an oversight of the drafting process.  But the few redundancies that the Constitution contains should not be used as a justification for embracing redundancies or failing to regard redundancies as matters to be avoided.  That way lies clear misinterpretation.

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Constitutional Structure and the Modern Commerce Power

In my previous post, I wrote of how a broad commerce power is inconsistent with two significant structural features of the Constitution.  The first structural feature is that one should not read one enumerated power so broadly as to render the enumeration of all of Congress’s powers pointless.  If a broad commerce power places no limits on Congress’s power, then it is clearly mistaken. The second structure feature applies in less extreme cases.  Even if Congress’s commerce power does have limits, it should not be read so broadly as to render many of the other enumerated powers surplusage.  This structural feature…

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The Modern Commerce Power

One of the fixtures of modern constitutional law is an extremely broad commerce power (founded on both the Commerce Clause and the Necessary and Proper Clause).  Prior to US v. Lopez in 1995, this commerce power seemed to be essentially unlimited.  After Lopez, the commerce power is now only largely unlimited.  While Lopez placed limits on the power, Gonzales v. Raich may have a put a stake in the heart of Lopez (but perhaps the Court will treat Raich with the same respect it gave to Lopez).  The 2012 Obamacare case of NFIB v. Sebelius did seem to hold that Congress could not mandate commerce, but that power is unlikely to arise often (after all, Congress had never used it before).

The extremely broad commerce power seems obviously to be inconsistent with the original meaning.  Why?  Besides arguments based on the meaning of the terms of the relevant clauses, it is inconsistent with the structure of the Constitution – that is, with other constitutional clauses.

The most common criticism of the modern commerce power is that it is unlimited and therefore inconsistent with the enumeration of the federal powers.  Why, after all, list all of the powers if one has conferred unlimited authority on the federal government.  This is a strong argument, but it is limited – it can be answered so long as one admits that there are areas where the federal government lacks power.  It is a testament to how extreme the nationalist vision of the modern commerce power is – as articulated, for example, by Justice Breyer – that it is unwilling to acknowledge that there is any area that the commerce power cannot reach.  But a less extreme Justice could presumably answer the criticism by admitting areas where the commerce power does not extend.

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Between the Original Decision and Abstract Originalism: An Unbiased Approach to Original Meaning

Introduction It is an honor to participate in this forum with my colleague Steve Smith and with Will Baude and Steven Sachs – all of them friends. Steve Smith’s essay continues his criticism of the new originalism in favor of the old originalism – a position that Steve previously defended in his paper “That Old-Time Originalism.” But unlike his earlier essay, which sought to defend the old originalism as the correct version of original meaning, Steve now advances a new type of originalism – original decision originalism – as a means of addressing what he regards as the defects of…

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Originalism and the Positive Turn

For more than a decade, the “New Originalism” has been identified with a focus on the Constitution’s original meaning (not its original intent) and with the admission that original meaning won’t perfectly constrain judges. Steven Smith challenges that version of originalism. The challenge should be rejected, but in the course of rejecting it we may…

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Saving Originalism’s Soul

What shall it profit originalism, to gain academic adherents but lose its soul? As Steven Smith tells it, the “new originalism” has made a disastrous Faustian bargain, with Jack Balkin playing Mephistopheles. It may have gained sophistication and intellectual respect, but it’s lost its ability to resist falsehood and manipulation—and lost the firm roots that…

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Decisional Originalism: A Response to Critics

I’m sincerely honored that Mike, Will, and Steve (whose expertise in these matters, both individually and collectively, greatly exceeds my own) would make the effort to comment on my essay.  The comments advance powerful objections to “decisional originalism,” as I’ve reluctantly called it.  Even so, I’m not persuaded– not yet anyway-- to abandon the idea. …

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Libertarianism and Social Interaction

Via David Henderson, I came upon this essay by John Edward Terrell in the New York Times criticizing libertarians and Tea Party types for favoring individualism.  What a morass of confusion!

To begin with, Terrell conflates (1) the appropriateness of respecting individual rights, (2) the moral question, how we should act, and (3) the psychological question, how we are likely to act.  He seems to believe that libertarians believe that we should have absolute individual rights, that it is moral to be selfish, and that we are likely to be so.

These are old mistakes, but it is sad how often libertarianism is rejected for these mistaken reasons.

1. First, it is true that libertarians believe that people should have individual rights, but it is not because our actions have no effect on other people. Libertarians recognize that we are interconnected and argue that our mode of interaction should not be through coercion but through voluntary associations.  Social interactions work better through voluntary associations.

Goods and services are better provided through a competitive market than through monopoly government provision.  Similarly, in a free society, as de Tocqueville saw, people form voluntary associations to serve community ends and these associations generally work better than government does through coercion.    

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Hayek in New York

Friedrich Hayek, born into a noble family in Austria, lived a fascinating life.  Educated in Austria, he moved to the London School of Economics in 1931.  In 1950, he accepted a position at the University of Chicago on the Committee on Social Thought (after the free market economics department refused to extend an offer to the future Nobel Laureate).  And then in 1962, he returned to Europe, first in Freiburg and then in Salzburg.

But in 1923, in the middle of the hyperinflation in Germany and Austria, Hayek travelled to New York City to work with a NYU economics professor.  But when the professor left to write a book, Hayek was on his own and struggled for resources.  Over at Austrian Information, they have excerpts from Hayek’s letters that he sent home during his stay in New York.  They are fascinating, especially given their European cultural criticism of capitalist New York from this free market thinker.  For example:

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Sexual Assault on the Campus

At present, this is clearly one of the significant issues in the culture wars.  My observation is that the “left” has made significant progress in recent years, spurred by the Department of Education’s actions that have led many colleges to change their standards and by significant discussion in the media about the issue.  The most recent sign of the left’s progress has been the passage of the California affirmative consent statute (about which I previously blogged here and here).

Yet, it is my impression that push back against these policies has begun to grow.  This has been due in part to the reports of a variety of lawsuits, some of them successful, against colleges which appear to have treated male college students without due process.  But it is also due to a statement signed by 28 members of the Harvard Law faculty condemning the Harvard procedures as unfair.  They wrote that:

Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.

Here our concerns include but are not limited to the following:

■ The absence of any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing.

■ The lodging of the functions of investigation, prosecution, fact-finding, and appellate review in one office, and the fact that that office is itself a Title IX compliance office rather than an entity that could be considered structurally impartial.

■ The failure to ensure adequate representation for the accused, particularly for students unable to afford representation.

Harvard has inappropriately expanded the scope of forbidden conduct, including by:

■ Adopting a definition of sexual harassment that goes significantly beyond Title IX and Title VII law.

■ Adopting rules governing sexual conduct between students both of whom are impaired or incapacitated, rules which are starkly one-sided as between complainants and respondents, and entirely inadequate to address the complex issues in these unfortunate situations involving extreme use and abuse of alcohol and drugs by our students.

Harvard has pursued a process in arriving at its new sexual harassment policy which violates its own finest traditions of academic freedom and faculty governance.

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The Meaning of the Equal Protection Clause

Over at the Originalism Blog, Andrew Hyman has a post discussing the meaning of the Equal Protection Clause.  While modern law treats the Clause as protecting against all unequal laws, that is not the way the language reads.  The language says no state shall deprive any person of the equal protection of the laws.  Thus, the language says there is a category called “the protection of the laws” and the Clause requires that this protection be equal.

When one looks at the traditional understanding of the protection of the laws, it turns out that it means something like the remedies that are provided to protect people’s legal rights.  For a seemingly exhaustive discussion of the evidence for this, see Chris Green’s two articles here and here.  Thus, the Clause does not protect against all unequal laws, but instead of the failure of the state to protect people’s preexisting rights.

Under this interpretation, the Equal Protection Clause was about ensuring that the law protected all persons equally.  Thus, it prohibited sheriffs in the former confederate states from looking the other way when blacks were lynched.  (One important question  that this interpretation raises, which I do not discuss here, is how equality is protected under the 14th Amendment. )

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