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).

Originalism and Comparative Constitutional Law

One of the challenges often made to originalism is that so many other countries do not appear to follow it.  And if a large numbers of countries are not following it, then how can originalists claim that the failure to do so is illegitimate or unlawful?  In my view, this criticism of originalism is much weaker than is normally thought for two reasons.

1. First, the premise – that originalism is not followed throughout the world – is not at all clear. In part, there are places, like Australia, Turkey, Singapore and Malaysia, that do sometimes employ explicitly originalist arguments.

But this may only be the tip of the iceberg.  To begin with, some constitutions explicitly require what is wrongfully treated as nonoriginalist judicial review.  For example, the South African Constitution requires the courts to employ proportionality analysis.  If a South African court employs proportionality analysis, that is originalism, not nonoriginalism.

Moreover, if one follows original methods originalism – where originalism requires that interpreters employ the interpretive methods deemed applicable to the Constitution at the time of its enactment – then courts in other places which do not appear to be following originalism might actually be doing so.  For example, imagine a constitution were enacted in Europe today that did not specify how its provisions should be interpreted.  If the dominant mode of interpretation in that country and in Europe generally involved proportionality, then it might be reasonable to conclude that the constitution’s provisions were understood as requiring that they be interpreted using proportionality analysis.  Thus, one cannot simply look at a constitution, see that it is employing proportionality analysis, and conclude that it is nonoriginalist.  It might be following a type of originalism.

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Ramsey and Tillman on the Receive Ambassadors Clause

Over at the Originalism Blog, Mike Ramsey and Seth Barrett Tillman have been debating whether House Speaker John Boehner’s invitation to Israel’s Prime Minister Netanyahu to speak to Congress is unconstitutional.  See also the posts by David Bernstein and Peter Spiro.

Here I do not want to take a position on the issue, but just to note some interpretive moves that Mike and Seth make concerning the Receive Ambassadors Clause, which provides that the President “shall receive Ambassadors and other public Ministers.”

Seth argues for a strict reading of ambassador and public minister.  He argues that Netanyahu is neither an ambassador nor a public minister.  An ambassador has a meaning that excludes heads of government and other public ministers extends only to “diplomatic officials having lesser status or rank than ‘Ambassadors.’”  He supports this reading of other public ministers with various other clauses that seem to suggest this reading of other public Ministers.  See Article 2, Section 2, Clause 2 (referring to “Ambassadors, other public Ministers and Consuls” as under the scope of the President’s appointment power).  See also Article 3, Section 2, Clauses 1 and 2 (similar as to judicial power).  As a reading of the language, Seth’s argument here is quite plausible.

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More on Bias in the Implementation of Sexual Assault Laws

Via Eugene Volokh, I came upon this article in the American Prospect by feminist advocate and retired federal judge Nancy Gertner, the author of “In Defense of Women: Memoirs of an Unrepentant Advocate.”  The article, which criticizes the new Harvard sexual assault policy, is well worth reading.  While it covers some of the same ground concerning the biased university policies that I discussed in prior posts, it also has a fascinating discussion of the problems with the criminal justice system as well.  This is important because it is often recommended that these sexual assault cases be handled by the police and the courts.

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The Declaration of Independence and the U.S. Constitution

What is the relationship between these documents, especially for interpreting the Constitution?  There are several different possibilities.

1. Largely Unrelated. This is the conventional view in constitutional law.  Under this view, one generally can ignore the Declaration when interpreting the Constitution.  One justification is that the Declaration had a limited purpose – announcing to the world that the US was independent – and that was concluded by the end of the Revolutionary War.

2. Significant as a Document. Under this view, the principles announced in the Declaration are important guides to the meaning of the Constitution.  The force of the Declaration comes from the fact that it is one of the foundational documents in US history.  While not the standard view in either  originalist or conventional constitutional law, it does have some adherents.

3. Significant as Evidence of Political Principles. Under this view, the Constitution should be interpreted in accordance with certain important political principles, such as natural law or traditional common law principles.  The Declaration is evidence that natural law principles were widely accepted by the people in the latter part of the 18th  The reason for employing these principles, however, is not that they are in the Declaration, but that they were widely accepted.

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More on Extremist and Moderate Muslims

The comments on my prior post on extremist and moderate Muslims led me to believe that more could usefully be said about the subject.  One significant question is whether moderate Muslims have an obligation to condemn extremist Muslims.

Clearly, it would be useful to the cause if moderate Muslims were to condemn their extremist brethren.  But do they have an obligation to do so?  I can imagine arguments on both sides.

But that is not my main concern.  It is instead whether the defenders of freedom should be insisting that moderate Muslims condemn extremist Muslims, whether or not such moderates have an obligation to do so?  And my point is that such insistence is not strategically advisable. 

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Islamic Moderates and Extremists

Eugene Volokh has an important post on Islamic extremists and moderates. One of his basic points is that there are many millions of Islamic extremists in the world today—people who believe in the death penalty for apostasy and for people who leave the Muslim religion. Such people, whom he numbers in the tens or perhaps hundreds of millions, are “a deadly enemy to Western democracies and to our most fundamental values.”

At the same time, Eugene also notes that there are Islamic moderates, who presumably are a large group as well. These moderates are the allies of the West, both because they provide intelligence and other support to the West in its fight against the extremists and because moderate Muslims are the primary competitors with Islamic extremists for adherents.

These facts, which seem obvious once one states them, have two important implications. First, it is both false and unwise for the West to make negative statements about Islam generally, such as Islam is a religion of war and violence. This is not true of large portions of Islam and it will only weaken and alienate the Islamic moderates who are our allies.

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Reforming the IRS in Light of the Scandal

Given the IRS scandal, it is worthwhile considering what reforms might be enacted in order to prevent future wrongdoing by the agency.

The IRS is currently structured to prevent politics from intruding into the administration of the tax laws.  The IRS structure does this by employing very few political appointees.  The idea is that a predominance of civil service employees will prevent political abuses.

Obviously, this civil service model did not operate to prevent the IRS scandal.  Lois Lerner, as Director of Exempt Organizations, was a civil service employee, but was quite political.  More generally, it is well known that many civil service employees have strong political views and some of them are willing to take actions to further those views.

If the civil service model is inadequate to protect against politicization, then what alternative model might make sense?  I favor a system of internal checks and balances.

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Surge Pricing and Slow Left Lane Drivers

My last post discussed surge pricing (including pricing during emergencies) and how people
often do not appreciate the benefits that such pricing provides. Part of what is going on with
people’s opposition to surge pricing is that they think of it in terms of a social norm – do not take advantage of people who are in difficult circumstances. People focus on this social norm and fail to understand or attend to the long term benefits such pricing provides. The way to address this is to educate people about these benefits, but unfortunately the state often exacerbates the problem by prohibiting such pricing.

There is another problem that I think involves similar issues: driving slowly in the left lane.
Such driving is not merely inconsiderate, it is also dangerous. Why? The left lane allows people who want to pass other cars an avenue to do so. If that lane is blocked, then these people – who want to drive faster – become all bunched up behind the slow driver in the left lane. There is no way for them to pass, since the cars in the other lanes are usually driving more slowly than these cars wish to travel (as is their “right” in the non-left lane). Thus, slow drivers in the left lane cause tailgating, which is dangerous. By contrast, when people can use the left lane to pass, there is no bunching since people who want to drive faster can do so.

What is the slow driver in the left lane thinking? Often they are focused on something else –
talking on their cell phone or to another passenger. When they do avert to the people behind
them, they often feel in the right. Their view is that they are already driving the speed limit or
faster, and no one has a right to drive faster than that. (How do I know this? I have spoken to
many people about the issue.)

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Surge Pricing and Social Norms

Recently, my co-blogger John McGinnis had a great post on surge pricing.  His basic point was that surge pricing has both static and dynamic benefits – allocating cabs to those who most need them and increasing the supply of cabbies willing to work at needed times.  John also notes that these benefits are missed by most people because of political ignorance.

I agree with all of this, but I want to add a couple of things.  Part of the problem with surge pricing is that it conflicts with a social or economic norm that is (partially) accepted in our society.  The idea is that prices should be set and should not be adjusted to take advantage of people’s situations.  Stores do not increase the price of umbrellas in the rain and people expect that and criticize departures from the norm.  Restaurants do not generally charge more to eat at 7:00 than to eat at 5 (except for the rare early bird specials or for lunch menus, which often have smaller portions).

Yet, in other ways surge pricing is permitted.  Certainly airplanes adjust the prices based on when they are purchased, as do many other services.  So what is going on?

It is not entirely clear, but my guess is that people are simply reacting to norms that they are used to.  Some years ago, everyone in the airplane had paid the same price for a coach seat – not so these days.  (It helps that not everyone knows what others paid for their seat.)  People get used to it.  It used to be the case in law firms that people were paid based on seniority – not so these days.  Many people did not initially like the changes, but they got used to them.

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Solving the Government Shutdown Problem

John McGinnis and I have an op ed on government shutdowns in today’s Wall Street Journal.  We note that government shutdowns typically have involved Democratic Presidents and Republican Congresses, and that Republican Congresses have usually both lost the fight and borne the brunt of the blame.  We note that “President Clinton faced off against House Speaker Newt Gingrich in 1995, and Mr. Clinton won.  President Obama dueled with the Republican House in 2013 and Mr. Obama won.”

While politicians and the media have recognized that the Republicans generally lose these fights, what is not generally appreciated is that it is the current legal regime that has largely allowed the Democrats to win.  At present, when there is a spending dispute and spending authority terminates, most government spending (with the exception of entitlement programs and essential services) ceases.  As a result the public bears serious inconveniences, which are easily blamed on the Republicans, since their “smaller-government message” can be “portrayed as aiming to deprive the public of government services.”

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