John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His recent book, Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the co-author with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

The Right to Privacy Is a Threat to Liberty

The New York Times recently reported that in 2006 a German executive at Volkswagen gave a presentation on how the company’s cars could evade emissions tests.  Who was the German executive at the root of a scandal that will cost VW shareholders tens of billions? The New York Times stated that it could not identify him or her because of German privacy laws.

This example nicely illustrates how privacy laws undermine liberty. Their direct harm to liberty is clear. Because of fear of liability in Germany, the New York Times cannot exercise its free speech rights in the United States to name a key executive in a story about one of the most important business scandals of the decade.

The harm to society is clear as well. Executives in companies (and officials in government) are likely to behave better if they fear exposure. Indeed, privacy laws will reduce the number of investigate reporters trying to uncover malfeasance. Newspapers are naturally more interested in running stories where names are attached than stories about faceless executives or bureaucrats, because they are more likely to interest readers.

But the laws also impose more indirect, but pervasive costs to liberty. By reducing the power of private social norms to restrain bad behavior, they make a more intrusive state necessary. The less civil society governs itself by decentralized, informal means, such as by circulating information, the more there will be a need for the heavy handed enforcement mechanisms of a top-down bureaucracy.

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Let Tesla Sell Directly to Its Customers


There is a debate about how innovative are Tesla’s new cars, but the company is indeed trying to do something new in the way it sells them. Tesla wants to sell directly to consumers without the use of dealers. Unfortunately, however, many states are trying to prevent direct sales. These laws are outrageous exercises in economic protectionism in favor of special interests.

When it comes to keeping down the costs of distribution, a manufacturer is the consumer’s BFF. Both the manufacturer’s and the consumer’s interest is the same—having the most efficient and cost-effective form of distribution. An efficient distribution allows the manufacturer to sell more cars, because the total cost of the product is lower.  It also benefits the consumer, because the distribution is incidental to the enjoyment he or she gets from the product.

Some legislators argue that dealers are necessary because they can provide important services to consumers. But the manufacturer takes the level of service into account when deciding whether to sell directly.  Optimal service helps the manufacturer’s bottom line as well, because it gains a reputation for cars that are well serviced and thus last a long time.

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Sunstein’s False Claim that Scalia Was a Living Constitutionalist

In an essay forthcoming for the Harvard Law Review, Cass Sunstein argues that Justice Antonin Scalia was in many important opinions a practitioner of living constitutionalism, that is someone who believes “the meaning of the Constitution evolves over time.”  This claim is contrary to the received wisdom about Scalia.  But it is consistent with a long-term project of the left—to deny that originalism is distinct either conceptually or in practice from living constitutionalism and thus to remove a barrier to  the progressive transformation of the United States.

But Sunstein’s arguments are weak.  First, he contends that some of Scalia’s opinions do not rely on the original meaning of provisions. But he has to acknowledge Scalia’s own response to these complaints: that as a judge he also has some duty to follow precedent. And applying precedent under neutral rules is emphatically not inconsistent with originalism. Analytically, precedent generally concerns the adjudication of the Constitution, not its meaning. Moreover, as Michael Rappaport and I have argued, the original Constitution contemplates the application of precedent.

Sunstein then downplays the full-throated originalism of District of Columbia v. Heller’s holding in favor of an individual right to hold arms at home.  First, he quibbles that an originalist should have to show that the Second Amendment reference to “arms” was not limited to the firearms at the Founding.   Scalia dismissed this argument as almost frivolous, as indeed it is even as matter of originalism.

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Regulation Recessions

In his column "Robber Baron Recessions" Paul Krugman argued this Monday that American companies have been investing less because of greater market concentration in their industries. Exhibit A for Krugman is Verizon: he contends that it has not sufficiently invested in Fios, a fiber optic system that would accelerate internet speeds.  He thus wants more government intervention to police monopoly power and decrease economic concentration. Both Krugman’s claim and his remedy are dubious.  Let’s begin with alternate explanations for low corporate investment. The most obvious is government regulation.  The Obama administration has been one of the most aggressive regulators in history.…

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Make Elections More Taxing

This year April 18 is the end of the ordinary window for paying income taxes to federal and state governments. Paying income taxes may be a necessary part of civic life, but that payment should be timed and structured to promote government accountability. Unfortunately, but not surprisingly, our politicians have made it difficult for citizens to be conscious of how much they are paying for government services at the time when it would most count—election day.

First, the ordinary window for tax payments—from January 1 to April 15—makes the act of paying taxes a distant memory by the time the first Tuesday in November rolls around.  It does not take a behavioral economist to recognize that paying taxes closer to the election would make voters focus on whether they are getting value for money from government.  Thus, the ordinary payment window should be changed to the month before the November election.

Second, as a result of withholding, most voters get a refund from the government when they file their taxes.  This process also makes them less conscious of the tax burden, since most do not actually write a check to the government, but instead get a check from the government. Thus, withholding should be modified to make citizens feel the effect of taxes.

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The Economic Denialism of a $15 Minimum Wage

Both California and New York have passed minimum wage legislation that will prevent in relatively short order their citizens from working for less than fifteen dollars an hour.  The New York bill will double the minimum wage. The California bill will increase the minimum wage by fifty percent. Even in a political climate growing increasing hostile to liberty such legislation stands out as an egregiously irresponsible and ignorant intrusion on freedom.

We hear a lot about “denialists” when it comes to climate change, but these enactments represent a massive denial about basic truths of economics. When a commodity—in this case labor—becomes substantially more expensive, people will buy less of it. The result of these laws will more unemployment for the least able among us.

Does anyone doubt that if newspapers, including those who editorialize in favor of such increases, were required by the government to double their subscription price that they would sell substantially fewer newspapers? Or if the government decreed that salaries of tenured professors must be go up by half, that colleges would substitute other kinds of instructional tools for tenured professors?

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Unifying the Two Cultures in Law Schools

Almost seventy years ago, C.P. Snow famously warned of a split between two cultures in our universities and society. The first was the scientific culture marked by rigorous modeling and empirical methods. That culture itself divided into defined specialties. The second was humanistic culture marked by a focus on rhetoric and the evaluation of ways of life. That culture was less specialized because it wanted to try to answer some of the great human questions that knew no boundaries.

Snow oddly enough left out the social sciences in general from his schema and law in particular, although the protagonist of his most famous novel, The Masters, was an academic lawyer. But that same cultural divide replicates itself in many of the social sciences and especially on top law schools faculties today. One kind of legal academic is scientific, concerned with models and empiricism. Those working on this side have defined methods—well cultivated gardens of the intellect. And this scholarship tends to be positive, looking at how the world is rather how it should be. The humanistic kind of scholarship is more discursive, sometimes of a bit of jumble.  It is less specialized and tends to the normative.

Snow worried that the loss of a common culture would create cliques within universities and make it harder to solve social problems. Neither technocracy nor the refinement of moral ideals suffices to improve the world.

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Why the Left Favors Immigration but Opposes Trade

The American Left generally welcomes immigration, but opposes foreign trade. There are exceptions of course, but generally the further left one moves this combination of policy preferences is even starker. Bernie Sanders seems wholly opposed to free trade and yet favors immigration. Indeed, he wants to make citizens of immigrants, even if they have come here illegally.

What explains this divergence? It cannot plausibly be concern for low-wage workers in the United States. It is true that trade, while being generally beneficial, can depress the income of low-wage workers (at least in the short term), because they must compete more with low-skilled workers elsewhere. But the effect of low-skilled immigrants  is the same. It puts pressure on the wages of low-skilled Americans.

It can’t be concern for the poor abroad.

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A Bad Season for Campaign Finance Reformers

The presidential primaries have been a bad time for campaign finance reformers. Their basic claim is that money has a uniquely powerful and disproportionate influence in politics. But this campaign season shows  that there are many other sources of influence—celebrity, academia, and the media—that can be even more potent.

The Republican party’s initial front runner, Jeb Bush, collected more money early on than other Republican. Allies also established a SuperPAC—Right to Rise—that had more money than any other associated with a competing candidate. Yet Bush exited without winning a single primary. And his candidacy also showed that money in his allied SuperPAC was no substitute for contributions directly to the candidate, as the Bush campaign had to cut back on operations after initial setbacks.

Trump, in contrast, spent little money and showed the power of celebrity, particularly in combination with media access. Studies have shown that he got more free media than any other candidate—$1.9 billion worth, by one estimate.

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Is an Eight-Member Court Good for the Nation?

balance de la justice.

The Supreme Court yesterday suggested a compromise solution to the contraceptive mandate for religiously oriented service organizations that object to contraception, and required the parties to comment on whether it met their needs. This order, made after oral argument, is very unusual. It likely reflects the fact that the Court was divided 4-4 on the question of whether the Obama’s administration previous accommodation violated the Religious Freedom Restoration Act.

Some initial responses suggest that the compromise might be welcomed by both sides. It should make us reconsider whether a  Supreme Court with an equal number of justices is a bad development for the nation.  A Court with nine justices would likely have come down on one side or another, embittering the side that lost in the culture wars. And when the culture war divide follows the partisan divide on the Supreme Court, the decision would only increase partisan distrust of the institution.

Greater efforts at compromise would be a hallmark of 4-4 court with such divides.  Justices like to render decisions as matter of craft and institutional obligation and would tend to avoid deadlock, where possible. 

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