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).

The Invasion of Iraq: A Change in My Position

In a series of posts, I hope to explain why I made a mistake by supporting the US invasion of Iraq in 2003.  While I initially favored the invasion and continued to support it for many years, recently I have come to the conclusion that I was wrong.  My reason is not among those that people usually give for opposing the war.  Instead, I believe that, had our government and political system been competent, the venture could have provided enormous net benefits.  Unfortunately, our government is not competent.  My mistake was placing too much faith in government – a serious…

Read More

Originalism and Positivism: The Problem of Interpretive Contestation

I have written various posts about originalism and positivism.  Perhaps the academic who has written the most about interpretive approaches and positivism is Matt Adler from Duke, but I have relatively neglected his articles.  It is not a mistake I will make again. I strongly recommend a recent article of his – Interpretive Contestation and Legal Correctness –that lays out the issues clearly and admirably.  In particular, the puzzle for him is how there can be law when there is significant disagreement about interpretive matters (such as the disagreement between originalism and nonoriginalism).  He explores how various theories would address the…

Read More

Where are Special Interests When You Need Them? The Problem of Unwanted Phone Calls

One problem with the political decisions, including those in a democracy, is the importance of special interests. Special or politically concentrated interests have an advantage in the political process and therefore are able to obtain special privileges and advantages that impose inefficient costs on the society. This is, of course, an old story. But the world seems to be more complicated than this. Sometimes one wonders why special interests do not seem to be pursuing their interests. And as a result, other special interests prevail when it seems they should not. I thought of this the other day when I picked up…

Read More

Collective Bargaining, the NBA Draft, and Superstars

I used to be interested in professional basketball back in the 1970s. In the last 4 years, I have once again become an avid fan. There are plenty of important differences between the game of the 1970s and the present game – perhaps the biggest is the 3 point shot – but a significant change is that the collective bargaining agreement (CBA) between the NBA and the players union has now become an important part of environment necessary to field a successful basketball team. The CBA places fairly strict limits on how much each team can spend. It also places maximum…

Read More

Is Griswold v. Connecticut Consistent with the Original Meaning?

Griswold – which held that married couples had a constitutional right to use contraceptives – is an extremely popular case. Supreme Court nominees usually feel the need to approve of the decision in their confirmation hearings (just as they feel the need to say approving things about originalism or at least not to disagree with it). In our book, Originalism and the Good Constitution, John McGinnis and I argue that, even if Griswold is not in accord with the original meaning, a proper theory of precedent would enforce it as having widespread support across the political spectrum. But is Griswold in…

Read More

Schlomo Avineri on Oslo

Based on a pointer on Facebook, I saw this piece about how left wing Shlomo Avineri had admitted that he and his compatriots were mistaken about Oslo and the Palestinian desire for peace. He writes: The initiators of Oslo and the process' supporters saw the Israeli-Palestinian conflict as a conflict between two national movements, and believed - as I believed - that in direct negotiations between Israel and the PLO, a solution could be found to the territorial and strategic issues that are the source of the dispute between the two movements. But the basis of this concept had a mistake. All…

Read More

It’s a Mad World

This story is a sad one: “A North Augusta mother is in jail after witnesses say she left her nine-year-old daughter at a nearby park, for hours at a time, more than once. . . . The girl is in the custody of the Department of Social Services.” I have two reactions to the story. On the one hand, I remember growing up in Manhattan and my mother allowing me to travel to the school yard a couple of blocks away when I was in fourth grade (age 9-10) for “hours at a time.” She did not believe I was in…

Read More

Is There Standing to Challenge Obama’s Deferred Action for Childhood Arrivals Program?

Two years ago, President Obama adopted the DACA Program, which announced an enforcement policy that “defers deportations from the U.S. for eligible undocumented youth and young adults, and grants them access to renewable two-year work permits and Social Security Numbers.” It has often been said that there is no way to challenge this program, since no one has standing. But I wonder whether this is true. Imagine the following scenario. An employer interviews to fill a position and ultimately decides to hire A, with B his second choice. A is an individual who has a two year work permit under the…

Read More

Is Originalism the Law?: The Basis of Nonoriginalism

In my last post on Steve Sachs’s new paper, I noted that Steve argues that one can have nonoriginalist rules enforced even though originalism is the law. I wrote: To illustrate his point, he imagines a hypothetical society where there is a law that says the people may not eat creatures that feel pain. The people in this society believe that lobsters did not feel pain and consequently eat lobsters regularly. As a descriptive matter, one might conclude that eating lobsters was lawful in this society. But suppose it turned out that lobsters do feel pain. In that event, Steve argues,…

Read More

The Recess Appointments Decision Part IV: The Motivations Underlying Justice Breyer’s Practice Based Decision

The day after the Noel Canning case involving the Recess Appointments Clause came down, the Federalist Society held a teleforum conference on the issue. I was on a panel with Noel Canning’s attorney in the Supreme Court, Noel Francisco, as well as Professor Kristin Hickman from Minnesota Law School. Kristin raised an interesting point. She argued that one of the principal motivations for Justice Breyer’s majority decision relying on practice to allow a broad recess appointment power was a strong reluctance for the Supreme Court to hold that hundreds of recess appointments by Presidents had been unconstitutional. I am not sure that…

Read More