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).

Trump’s Supreme Court Deal

As many know, Donald Trump has released a list of 11 people he might nominate to the Supreme Court if he is elected. While I don’t know all of the people on the list, many of them are quite first rate and I have not heard any criticisms of people on the list that seem especially troubling.  Thus, it is reassuring to many on the right, who are skeptical of a Trump presidency, that he seems to be willing to nominate people who are supported by more conventional Republicans. Although the list surprised many people, it makes perfect sense.  Donald Trump is…

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Airport Screening: TSA Versus Private Security Firms

TSA

With lines at airports now approaching absurd lengths, a movement is arising for employing private screeners instead of the government TSA screeners. There are such strong reasons for doing this that even Vox, hardly a friend of the private sector, argues in favor of the move.

Many people argued in favor of private screeners after 9/11, but let’s not forget that Democrats pushed through government screeners in an effort to promote unionization and additional government employees. George Bush agreed to the Democrats’ demands, and here we are.

Under the law, airports can hire private screeners, which would then be regulated by TSA. But relatively few airports use private screeners, even though those that do appear to have experienced significant benefits. There is evidence that private screeners are better at detecting bombs and that they process travelers more quickly. There are other benefits:

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Michael McConnell on the Ninth Amendment

One of the puzzles in constitutional law has been the original meaning of the Ninth Amendment. Some years ago, during his unsuccessful confirmation hearings, Judge Robert Bork analogized our lack of understanding of the Amendment to the situation where the language of a constitutional provision was obscured by an inkblot. He argued that since we don’t understand the provision, we are in no better position to enforce it than if an ink blot covered it.

Over the years, various explanations have been offered for the amendment. Some have argued that it protects enumerated natural rights to the same extent as the enumerated constitutional rights.  Others have interpreted it to have a much less significant role.

In my view, the best interpretation of the Amendment is supplied by Michael McConnell in a relatively recent law review article. At the beginning of my scholarly career, I had come upon the same idea, but was persuaded not to write it up. My mistake, although I don’t think I would have done as good a job as McConnell does.

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Corpus Linguistics and the Misuse of Dictionaries

Recently, I attended an interesting conference on Corpus Linguistics and the Law.  Corpus Linguistics “is the study of language based on large collections of ‘real life’ language use stored in corpora (or corpuses) – computerized databases created for linguistic research.”  Much of the conference focused on how this method could be used to engage in originalist research. At present, originalism often uses dictionaries to determine the meaning of words at the time of the Constitution’s enactment.  But there are significant limits to dictionaries.  The promise of corpus linguistics is to use very powerful software to examine actual usage of words from…

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The Framers/Justices Conflation

Recently, Justice Stevens gave a speech about Justice Scalia. At the end, Stevens relies upon an argument from historian Joseph Ellis that both Stevens and Ellis believe suggests that Thomas Jefferson was not an originalist. But as Ed Whelan points out, this is a misinterpretation. Jefferson writes: Let us [not] weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs. Let us, as our sister States have done, avail ourselves of our reason and experience, to correct the crude essays of our first and unexperienced, although wise, virtuous, and…

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Balkin on Strategic Originalism

Jack Balkin has written an interesting post commenting upon Steven Smith’s and my discussion of strategic originalism. I agree with Balkin that the effectiveness of strategic originalism would turn on the number of originalist judges and whether they are the swing justices. With only one thoroughgoing originalist justice on the Supreme Court at present, strategic originalism will have very limited effect. My discussion, though, was focused not on the present situation, but instead on a more general problem which would also occur even if there were three (or a significant plurality of) originalists on the Court.

Balkin describes my arguments as follows:

Rappaport suggests that originalist judges should threaten to abandon a principled commitment to originalism and impose their personal preferences. Faced with this threat, liberal nonoriginalists will cower in fear and agree to compromise on originalist decisions, because those are likely to offer better results for them than the preferences of conservative judges.

Let’s put aside the hyperbolic language in this description. My point was that a strategic originalism might cause the Leftwing nonoriginalists to have additional incentives to follow originalism, not that it would make them fully originalist. While Balkin does not mention it, I should also emphasize that I ended up recommending against this strategy of strategic originalism, because it would not be as effective as a principled originalism in persuading others to follow originalism. But let me here just focus on Balkin’s criticisms.

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The Equal Rights Amendments and Its Possible Meanings

In the 1970s, the proposed Equal Rights Amendment passed both houses of Congress with the requisite two thirds supermajority and then went to the states for ratification.  The proposed Amendment then quickly secured numerous ratifications (ultimately securing 35 of the requisite 38 state ratifications) and looked sure to pass.  But then the momentum for the Amendment stopped and it never secured the necessary ratifications. A big part of the arguments against the proposed Amendment were that it would lead to certain consequences, which were generally regarded at the time as extremely unattractive.  While opponents of the Amendment argued it might or…

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Heather MacDonald on Proactive Policing

Heather MacDonald argues in the City Journal that a significant increase in violent crime has been the result of a decline in proactive and broken windows policing. Proactive policing involves “pedestrian stops—otherwise known as stop, question, and frisk. Broken windows policing “responds to low-level offenses such as graffiti, disorderly conduct, and turnstile jumping.” Let’s assume, as seems plausible, that MacDonald is correct that such policing is effective and violence crime has resulted from its decline. MacDonald lays the blame for this situation at the feet of a variety of groups, but mainly activist groups such as Black Lives Matter, but also…

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Strategy and Originalism

Over at the Liberty Law  Forum, Stephen Smith has an essay entitled Saving Originalism from Originalists.  Smith’s article raises an extremely important issue: How do originalists cause the Supreme Court Justices to follow the original meaning of the Constitution?  This is a difficult question.  Smith powerfully argues that a strategic perspective is a useful way of thinking about the problem.  Relying on this perspective, Smith argues for what he calls a strategic originalism.  I respond to Smith’s argument here. I have also thought about strategic considerations.  I discuss one strategy for promoting originalism in my response to Smith: Perhaps the biggest obstacle…

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Promoting Originalism: Through Strategy or Principle?

Stephen Smith’s Liberty Forum essay concerns an important question for originalism: How can originalists provide nonoriginalists with an incentive to follow the Constitution’s original meaning? Smith identifies what he regards as a serious problem with originalism: “In a world in which many judges reject original intention as a binding constraint, originalism cannot achieve its goal of judicial restraint unless it has a method of eliciting it from nonoriginalists.” What is needed, according to Smith, is a strategic originalism that provides nonoriginalists with an incentive not to engage in judicial activism. Smith’s essay is interesting and insightful. I have long believed that the problem…

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Constitutional Theory As Game Theory

Stephen F. Smith begins his Liberty Forum essay by quoting from Justice Antonin Scalia’s “Originalism: The Lesser Evil” speech from 1988. There Scalia announces that the Constitution, though it has an effect superior to other laws, is in its nature a sort of ‘law’ that is the business of the courts—an enactment that has a fixed…

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Reactivists We Have Known and Loved (Just One, Actually)

Kudos to Stephen Smith, and kudos to the man behind the curtain (Richard Reinsch) for inviting his essay. What a breath of fresh air. In the current environment, constitutionalism seems unlikely to regain real-world traction any time soon. Surely, though, that must remain the long-term objective. To that end originalism must liberate itself from its…

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Saving Originalism: A Reply by Stephen F. Smith

It was an honor for me to contribute my initial essay, “Saving Originalism from the Originalists,” to the Liberty Law Forum, and now I am doubly honored to have had my work reviewed by constitutional scholars as widely respected as Professors Michael Greve, Gordon Lloyd, and Mike Rappaport. I am grateful to each of them…

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