• About
  • Contact
  • Staff
  • Home
  • Essays
  • Forum
  • Podcasts
  • Book Reviews
  • Liberty Classics

March 25, 2019|Lino Graglia, Michael Rappaport, Michael Stokes Paulsen, Originalism, Robert Bork

The Many Flavors of “Originalism”

by Mark Pulliam|

U.S. Constitution (Festa/Shutterstock.com)
Pragmatism plays a role in constitutional interpretation—and stare decisis.

March 7, 2019|general welfare, Michael Rappaport, Preamble

Thinking about “General Welfare” in the Preamble

by James R. Rogers|

Preamble to the Constitution (Jack R. Perry Photography/Shutterstock.com)
A reasonable reading of the U.S. Constitution’s preamble identifies how “general welfare” differs from its meaning in any given state constitution.

November 13, 2018|Birthright citizenship, Fourteenth Amendment, Jurisdiction, Michael Rappaport, Richard Epstein, U.S. v. Wong Kim Ark

Jurisdiction, Old Style and New

by Richard Samuelson|

Image: Leena Robinson/Shutterstock.com
If we take the Fourteenth Amendment to mean what Michael Rappaport and others argue, some strange consequences follow for resident aliens.

December 11, 2015|Eric Foner, Gordon Wood, Jack Rakove, John McGinnis, Michael Rappaport, Originalism

Do Historians Understand Originalism?

by Kurt T. Lash|

I just returned from a conference of law-department and history-department legal historians discussing the Thirteenth Amendment (well done, Randy Barnett). As I listened to historian after historian explain to us law professors just what we are doing wrong, I was surprised by how ignorant some well-known historians are about public meaning originalism. While I appreciate Eric Foner’s bravely spoken declaration (to a room full of originalist scholars) that “there is no such thing as an original meaning of a text,” I respectfully disagree.

Read More

November 10, 2015|F.H. Buckley, Gordon Wood, Michael Rappaport, Original Intent, Original Methods Originaism, Public Meaning Originalism, Randy Barnett

Public Meaning Originalism Is Not Indifferent to Evidence About the Intent of the Framers

by John O. McGinnis|

On this site Frank Buckley yesterday made a series of puzzling assertions about originalism. First, he says that “original meaning originalism” (which I believe most people call “public meaning originalism”) “dispenses with an examination” of what the Framers intended. At another point he states that public meaning originalism “collapses” into original intent originalism. These statements are in some tension with one another, but neither is accurate.

Few, if any, public meaning originalists believe that public meaning dispenses with examining what the Framers intended. What the Framers intended to do with words they wrote is often good evidence of what the public meaning was, particularly if they made their intent manifest publicly, as in the Federalist Papers. That is why almost all originalist scholarship of the public meaning variety regularly consults such materials.

On the other hand, the original intent does not collapse into public meaning. For public meaning originalists, the Framers’ intent does not constitute the public meaning conceptually and it may not even provide powerful evidence of that meaning if it were not known and contrary to other evidence of what their words would have meant. Moreover, there is ample other evidence from materials at the time that bears on the meaning of the words and phrases in the Constitution, such as newspapers and dictionaries of the time—material also regularly cited by public meaning originalists.

Read More

August 6, 2015|Construction, intepretation, Jack Balkin, Judicial Power, Judicial Review, Larry Solum, Michael Rappaport, Randy Barnett

The Judicial Power Permits only Interpretation, not Construction

by John O. McGinnis|

The most import current debate in originalism is between those who believe that judiciary in the course of judicial review can engage only in interpretation and those who believe it can also fill in a  “construction zone” when the semantic meaning of a provision runs out. The latter originalists, such as Randy Barnett, Larry Solum and Jack Balkin, make a strong distinction between clear and unclear language in the Constitution. For clear language, judicial review can find a precise original semantic meaning for a provision and there is no need for the judge to consult anything but the semantic  meaning.  Unclear language, in contrast, creates a construction zone.  Within that zone,  the judge may appeal to materials other than its original meaning in the course of judicial review.

Mike Rappaport in a recent post poses an important question for the latter camp, wondering how they can really be acting as originalists when engaging in construction. Whatever their theoretical arguments about the necessity of construction, how can constructionists be claiming to deciding a matter based on the Constitution? As Mike lucidly puts it:

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

Mike then notes that one possible response of those who believe in construction is to claim that the “judicial power” gives judges the authority to engage in construction. But in my recent paper, The Duty of Clarity, I show why the Constitution’s understanding of judicial power is inconsistent with construction. There I demonstrate that judicial review was thought to permit judges the authority not to follow a statute only if it were, in Alexander Hamilton’s words, in “irreconcilable variance” with the meaning of the Constitution.

Read More

January 31, 2013|Judge Sentelle, Michael Rappaport, Recess Appointments

Excess of Recess: Grammar, History, and Institutions

by Michael S. Greve|

A few more comments on the D.C. Circuit’s recess appointments decision and on Mike R’s post/reply to yours truly:

I’d criticized Judge Sentelle’s opinion (not Mike’s article, which I’ve read with great profit but, I admit, some time ago) for “hanging too much” on the word “the” preceding “Recess.” The definite article, the judge insists, very strongly suggests that recess appointments are permissible only between Senate sessions, not during intra-session adjournments or “recesses.”  I didn’t mean that we should ignore (in)definite articles in the Constitution when trying to understand it—to the contrary: the Constitution’s authors are best read as Lillian Hellman in reverse. (“Every word she writes is a lie, including ‘and’ and ‘the,’” Mary McCarthy famously remarked of Hellman.) It’s good to start (at least) with the presumption that every constitutional word is well-considered and meant to be taken seriously.

Read More

August 18, 2012|Michael Rappaport, Mike Paulsen, Obamacare, The Upside-Down Constitution, Tom Christina

Once More: Taxes, Obamacare, and the End of the Constitution

by Michael S. Greve|

Earlier this week, Mike Rappaport  replied  to Mike Paulsen’s  defense  of Chief Justice Robert’s opinion upholding Obamacare’s individual mandate as an exercise of the taxing power. It’s taken me a bit to weigh in because NFIB v. Sebelius continues to grow on me: the more I think about it, the angrier I get. But on a Saturday after a round of golf, I can manage. I think.

Between right-wing originalists called Mike: I believe that the Chief got it almost right; that Mike P.’s defense gets it almost right; and that Mike R.’s objection misses the mark. But the “almosts” matter: they contain all the tragedy and horror of the decision.

To be clear: I have no design to join the conspiracy theorists and “Roberts is a traitor” contingents. Mike Paulsen’s piece contains an eloquent defense of the Chief’s personal and judicial integrity, to which I subscribe wholeheartedly and which will hopefully help to put distance between the grown-ups and the fever swamps. It so happens, though, that honorable people can make mistakes that have very fateful consequences—not on account of a lapse but for respectable and even, and precisely, for honorable reasons. Here goes.

Read More

August 7, 2012|Michael Rappaport, Paul Volcker, Richard Ravitch

The State of the States

by Michael S. Greve|

What are states, and what are they good for? Brother Rappaport had a very good law review article some years ago, arguing that for constitutional purposes, the word “state” means something close to “sovereign country.” (Of course, the Constitution explicitly strips the states of some of the traditional attributes of sovereignty, such as the power to wage war.) And the Supreme Court periodically swoons over the “dignity” of quasi-sovereign states. However, these and similar tributes to “Our Federalism” are increasingly at odds with reality. For operational purposes, “states” are best understood as undercapitalized health care and pension funds that write speeding tickets on the side.

Read More

June 20, 2012|Greg Weiner, Michael Rappaport

No Way

by Michael S. Greve|

Recent postings on this blog suffice to tick off the Good Humor man and to compel my emergence from whatever the summer equivalent of hibernation may be.

(I am kidding. Frank and fun exchange is what this place is for.)

Read More

  • 1
  • 2
  • Next Page »

Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

Read More

The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

Read More

Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

Read More

James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

Read More

Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

Read More

Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

Read More

Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

Read More

America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

Read More

About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
  • Home
  • About
  • Staff
  • Contact
  • Archive

© 2021 Liberty Fund, Inc.

This site uses local and third-party cookies to analyze traffic. If you want to know more, click here.
By closing this banner or clicking any link in this page, you agree with this practice.Accept Read More
Privacy & Cookies Policy
Necessary Always Enabled

Subscribe
Get Law and Liberty's latest content delivered to you daily
  • This field is for validation purposes and should be left unchanged.
Close