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).

Certification Instead of Regulation

In the last couple of generations, regulation has exploded, with harmful effects on both our freedom and the economy.  One of the areas of regulation involve rules that are designed to protect consumers from being harmed by the products that they purchase.  Yet, there is a strong argument that these regulations are largely unnecessary.

Free market advocates generally argue that much of this regulation is not needed – that the market will develop mechanisms for protecting consumers.  The reputations of sellers and brand names provide strong incentives for sellers to provide safe and effective products.  Moreover, private companies, such as consumer reports, can also test the products and sell the information to consumers.

Read More

Our Supermajoritarian Constitution – Part II: The Republican Purpose of the Supermajority Rules of the Constitution

In my last post, I discussed how John McGinnis and I argue that the dominant character of the Constitution is that it is supermajoritarian.  I explained that the three basic provisions of the Constitution – individual rights provision, the process for passing ordinary legislation, and express supermajority rules – all turn out to be supermajority provisions.

In this post, I want to explore some of the context and purposes of the Constitution that also contributed to the Framers establishing a supermajoritarian constitution.

The Framers of the Constitution wanted to establish a more republican version of the English Constitution.  They not only eschewed a monarchy and an hereditary aristocracy, but they also believed that the English Constitution of the Glorious Revolution had been corrupted  (such as by giving Parliament unlimited authority and allowing the King to purchase votes in the legislature). 

Read More

Our Supermajoritarian Constitution – Part I: The Supermajoritarian Features of the Constitution

These days the main questions in constitutional theory involve questions of interpretation – in particular, whether one should follow the original meaning of the Constitution or its evolving meaning or some mixture of the two.  (One might also see this question as involving a related question – whether one’s theory of the Constitution should be about the document or about the practices of the country over time.)

But some years ago, constitutional theory focused on a different question – what is the dominant character of the Constitution.  Some people argued that the Constitution is a fundamentally democratic document, essentially allowing a majority of the country to rule, except where the process of democratic rule is subject to infirmities.  That is one way to understand John Hart Ely’s incredibly important book, Democracy and Distrust.  The apparently majoritarian features of the Constitution – that legislation can be passed by a majority of the legislature – is the strongest support for this view.

Other people argue that the Constitution is fundamentally about protecting individual rights.  These people can point to the Bill of Rights as well as the 14th Amendment as the main support for their view.  These people might also point towards the Lockean roots of the political theory that inspired the Constitution.

Read More

Some Examples of the General Common Law

In my last post, I noted that there has been a growing acceptance of the general common law among originalists.  One way to make the basic point is that originalists have come to recognize that an important part of the legal regime that the Constitution’s original meaning established included the general common law.

Let me explore a number of cases where the common law has been recognized as legitimate by some originalists.  Let me start with the case Swift v. Tyson involving a commercial law matter adjudicated under a federal court’s diversity jurisdiction.  The old originalist critique of Swift made sense – there is no authority under the Constitution to allow a federal court sitting in diversity to displace state law, especially when Congress has no enumerated power over the matter.

But Brad Clark has argued, following William Fletcher, that states often were thought to have adopted the general law as the applicable law.  Fletcher, for example, argues that in marine insurance cases both the federal and state courts thought of themselves as following the general law.  He writes that “in marine insurance cases, deviations by individual state courts from the general law were sufficiently rare that these courts, even when they disagreed, considered themselves engaged in the joint endeavor of deciding cases under a general common law.”  It thus seems clear that the standard Erie critique of Swift and the general commercial law, as displacing without any warrant state law, was problematic at the time Swift was decided.

Read More

The New Originalism: The Emergence of the General Common Law

Recent years has seen significant discussion about the “New Originalism,” a term which is often associated with several different trends in originalist thought.  One is the shift from original intent to original public meaning.  Another is the shift from a focus on constraint to other justifications for originalism.  And a third is the acceptance by some of a construction zone.

I am not a fan of the way the term “the New Originalism” is used, in part because it focuses only on a few aspects of the changes in Originalist Theory.  But let’s accept the term.  There is one aspect of the New Originalism – of recent trends in Originalist Theory – that is not usually recognized: the emergence of a belief in the general common law.  This emergence relates to some of the other themes of the New Originalism – in particular a shift from a focus on constraint to accuracy about the original meaning.

Back in the 1980s, there was a leading view among originalists about the federal common law: it was unconstitutional.  This view was applied to the federal common law of Swift v. Tyson that was eliminated by Erie v. Tompkins.  This view was also applied to the “new” federal common law that emerged with Erie.  Both of these applications were justified by plausible readings of the constitutional text and connected up with the old originalism’s distrust of judicial discretion, which federal common law provides.  While Justice Scalia was one of the leaders of this approach, he was not consistent about it; I can still remember discussing with others our disappointment that the Justice had written a federal common law opinion in Boyle v. United Technologies.

Read More

More on Construction: A Response to Larry Solum

In my previous post, I raised a question about originalist theories that employ the concept of construction.  I wrote:

The existence of construction raises an important textual question.  If a matter is within the construction zone – and there is no original meaning on the question – then is it part of the Constitution?  Put differently, if a judge employs values that are outside the Constitution to decide a matter, is he deciding the matter based on the Constitution?

And then I continued:

If the Constitution is defined as the original meaning of the words in the document – the standard definition of originalists – then the answer appears to be no: the judge who decides a matter in the construction zone is not deciding the matter based on the Constitution.  And if the judge is not deciding based on the Constitution, then his decision is not enforcing the supreme law of the land (since only the Constitution, federal statutes and federal treaties are supreme law of the land).  Decisions within the construction zone would arguably not be entitled to displace either state law or federal statutes.

In the remainder of the post, I explored some possible ways that those who employ construction might address this issue.

In response, my friend Larry Solum has written a helpful response.  I would recommend that readers take a look at Larry’s post, which is interesting and constructive.  Here I certainly can’t capture all of the subtleties of Larry’s view or post. 

Read More

Does a Judge Who Decides a Matter within the Construction Zone Enforce the Constitution? A Question About Construction

One of interesting questions in originalist constitutional theory is the relationship between theory and text.  Some originalists focus on originalist textual arguments, while some originalists argue, as a matter of theory, for originalism, but do so based on theory.  While this is a complicated matter, there is clearly room for both types of arguments.

This issue arises as to the practice of “construction.”  In originalist theory, some scholars draw a distinction between interpretation and construction.  Interpretation is the practice of determining the original meaning.  But what if, as these advocates of construction argue often happens, the original meaning runs out (that is, there is no original meaning as to an issue because the constitutional language is ambiguous or vague)?  Then, those scholars argue that the matter is within the “construction zone” and one must look outside the Constitution to answer it.  For these scholars, having to look outside the Constitution is not a choice that a judge makes.  It is simply the inevitable result of the original meaning running out.

In my own work with John McGinnis, we have been skeptical about construction and have argued that appropriate interpretive rules would avoid (or at least minimize) the need for construction.  But for purposes of this post, assume that we are mistaken and that construction is an important element of constitutional adjudication.

Read More

Israel and Double Standards: The Palestinian Refugees

Israel is subject to all sorts of double standards. This happens over and over again. One area where this is the case involves Israel’s treatment of its non-Jewish citizens. Israel is said to be an apartheid regime, even though it confers equal rights on its non-Jewish citizens. The harsh treatment by Arab states of non-Muslims is often barely mentioned. Another area involves the UN’s special rule for refugees. Many Israeli critics don’t realize that Palestinian refugees would not be considered refugees if they were former residents of any other place in the world. But because the U.N discriminates against Israel, many more Palestinians are treated as refugees. As Wikipedia states:

Palestinian refugees from 1948 and their descendants do not come under the 1951 UN Convention Relating to the Status of Refugees [which governs all other refugees], but under the UN Relief and Works Agency for Palestine Refugees in the Near East, which created its own criteria for refugee classification. The great majority of Palestinian refugees have kept the refugee status for generations, under a special decree of the UN, and legally defined to include descendants of refugees, as well as others who might otherwise be considered internally displaced persons.

But perhaps the greatest double standard is the attention that the world—especially Europe, the Muslim world, and the Left in the United States—pays to Israeli actions. If there is a conflict in Israel, it is front page news. In the many other places throughout the world, not nearly as much. Usually, this attention is focused on criticisms of Israel.

Read More

Global Warming: Lukewarmers, Consensus, and Personal Attacks

I am not a climate scientists, but like many others I have a position on global warming.  My position is that of a lukewarmer.  I believe that significant increases in carbon dioxide lead to increases in temperature.  I just don’t believe those increases in carbon dioxide lead to the dangerous amount of global warming that most global warming alarmists assert.  In other words, emissions of carbon dioxide lead to some global warming, just not dangerous amounts of such warming.

The main reason for my belief is that the alarmist argument does not rest simply on carbon dioxide leading to increases in warming.  Instead, the degree of warming asserted by alarmists involves much larger secondary effects – secondary effects, such as the claim that the initial degree of warming from carbon dioxide leads to additional warming from things like increased water vapor.  While the scientific case for the claim that carbon dioxide increases temperatures is strong, the scientific case for the much larger secondary effects is, to put it mildly, much weaker.

For an excellent discussion of the Lukewarmer position and for a variety of interesting aspects of the global warming debate, see this podcast with Matt Ridley at Econtalk, one of our sister sites.  

Read More

The Unconstitutionality of Social Security and Medicare

Government social insurance creates some of the most serious problems in western style democracies.  At best, these government insurance programs place tremendous strain on the economy and reduce work incentives.  At worst, they may result in the bankrupting of the society.  In the United States, Social Security pensions and Medicare are the worst culprits.

There are, moreover, alternative arrangements that would avoid these problems.  Some people may favor a fully voluntary system.  Others may favor more government involvement, such as a compulsory private system in which individuals are required to save certain amounts for their retirement or are required to purchase health insurance on some kind.  (For a discussion in the context of unemployment insurance, see here.  For a book comparing private and government insurance more generally, see here.)

While there are arguments for each of these systems, the important point is that they would not involve redistributions.  In particular, they would not require the massive redistributions that these existing systems make from one generation to another – redistributions that are unfair, inefficient, and cause serious political problems. 

Read More