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.

Donald Trump’s Zero Sum Trade Policy Affronts Classical Liberalism

If judicial nominations are the best reasons to support Donald Trump, one of the best reasons to oppose him is his trade policy. In a speech this week he made clear that he will block the Transpacific Partnership, unravel NAFTA, and try to raise tariffs generally, which he implied were a good substitute for other kinds of taxes. He would be the President most opposed to foreign trade at least since President Hoover signed the disastrous Smoot-Hawley Tariff Act.

There is a reason that freer trade has always been at the heart of the classical liberal vision—from the Manchester School in the nineteenth century to Reagan’s America.  It is not only that trade creates wealth through exchange. It is that trade is part of the engine that sustains civilization through human cooperation when we get rid of mind forged manacles, like mercantilism and distaste for foreigners. It is the enlargement of the sphere of cooperation domestically and globally that offers a long-run boost to security as well as prosperity.

Beyond the details of his policies, Trump’s position on trade shows him the opposite of a classical liberal—someone who thinks that political and economic life is zero-sum where the point of  a nation is win over other nations and the point of an individual is to win over others.  That is the recipe for endless political conflict and division—a medieval Game of Thrones played out in the twenty-first century.

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The Jurisprudence of Multiculturalism is a Jurisprudence of Obfuscation

Ours has become a multicultural society, but despite this, or more likely because of it, the areas of social policy that touch on race and ethnicity are marked by evasions and prevarications.  The diversity justification for race and ethnic preferences at universities is a case in point. The notion that universities are actually interested in fostering diverse views is belied by their general complacency with their politically homogeneous faculties and the political correctness they tolerate and indeed often foster on campus. The claimed interest in avoiding stereotypes is hardly advanced by admitting students with standardized test scores in many cases almost a standard deviation lower. To the contrary, as predicted by Judge Macklin Fleming in letter to the Dean of  the Yale law school in 1969, differential admission standards have led to lower standards of academic dialogue on our most contentious subjects and a politicized atmosphere on campus.

Thus, it is not surprising that Supreme Court decisions in the area are notable for their obfuscation and, to put it charitably, economy with truth.  Fisher v. Texas II continues and indeed deepens this tendency. First, it proclaims that it is applying strict scrutiny to Texas’ decision to use racial preferences even when its plan admitting the top ten percent of each high school class results in  a substantial percentage of minority students. But while strict scrutiny is generally fatal in fact here it becomes instead a lenient standard of review.

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A Separation of Powers Jurisprudence that Aggrandizes Judicial Power

The National Constitution Center is doing a series of essays on the provisions of the Constitution. It asked Peter Shane of the Moritz College of Law at Ohio University and me to write about The Treaty Power and the Appointments Clause which together compromise Article 2, Section 2. We wrote a joint essay describing where the Supreme Court case law leaves us and then short essays of our own summarizing where the law should be.

Mine sharply criticizes the Court’s jurisprudence for its departures from the original meaning of the Clause, Its opinions on the Appointments Clause are often self-serving because they generally maximize the Court’s discretionary powers at the expense of clearer rules actually contained in the Constitution. The resulting discretion allows them to be political and policy decision makers rather than faithful servants of the law. Here is my general take on the interpretive method that should be followed:

The practice and jurisprudence of the Treaty and Appointments Clauses err when they depart, as they too often do, from the original meaning of the Constitution. The original meaning is the meaning that would have been most likely embraced by a reasonable person at the time of the Framing. Because the Constitution is written in the language of the law, the original meaning is constituted by the text in its historical and legal context.

In particular, I am critical of the Court’s usurpation of  decisions about when the President can fire his executive officers:

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The Jurisprudence of Empathy Bursts the Bounds of Proper Procedure

old hands of the elderly giving a red heart

Previously Justice Sonia Sotomayor has allowed her jurisprudence of empathy to distort clear constitutional and statutory text. This week this jurisprudence has caused her to exceed the bounds of proper procedure.

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A Jurisprudence of Empathy Undermines the Rule of Law: Sotomayor Edition

Last week brought more evidence that a jurisprudence of empathy completely undermines the rule of law.  Recall that President Obama, the most famous advocate of this kind of  jurisprudence, suggested that empathy would make a difference in only a relatively few cases, because it had no role to play when the law was clear. I have previously suggested that empathy does not even help resolve those cases, because it’s almost always possible to have empathy for both sides. But Justice Sonia Sotomayor, his first Court appointment, shows that jurisprudence of empathy cannot be limited to hard cases. Instead, it leads her to disregard clear law in the cases that most tug at her heart.

The latest example comes in Puerto Rico v. Franklin California Tax-Free Trust.  There the Court held that Puerto Rico could not create a bankruptcy law to govern the debts of its public utilities, because it was prohibited by the plain language of the federal bankruptcy act from creating its own bankruptcy law. Puerto Rico attempted to evade this prohibition by noting another provision of the bankruptcy code: “The term ‘State’ includes the District of Columbia and Puerto Rico, except for the purpose of defining who may be a debtor under chapter 9 of this title.” (emphasis added).

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To Promote Innovation Let Non-Lawyers Earn Income From Legal Services

The rule of law is a great boon to liberty, enabling us to plan our lives.  Making law more transparent and less expensive to use also increases liberty because then more people can take advantage of that stability at lower cost. It is a particular boon to the poor and middle-class who cannot afford high-priced lawyers to help them see through a fog of law.

Fortunately, the ever increasing power of computation is creating new mechanisms to improve access to  law. As I described in my presentation this week at the Organization of Economic Cooperation and Development, machine intelligence is transforming legal practice.  It is making discovery of facts easier through predictive coding, permitting search by semantic concepts rather than just legal terms, generating simple but personally tailored legal documents, like wills and trusts, and helping predict the outcome of legal cases. Discovery, search, document generation, and legal prediction constitute a large part of legal practice.

The single most important structural change to accelerate such innovation is to permit non-lawyers and corporations to earn income from the practice of law—something that is forbidden by ethical rules in all our states.

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A Natural Right with Naturally Unequal Consequences

I am in strong agreement with the Derek Muller’s opposition to Progressive ideas to reform laws relating to campaign speech. He is particularly eloquent on why the Framers believed that limiting government was the best route to eliminating political corruption—the opposite of the Progressive agenda, which seeks to expand the state. We can build on his insight by suggesting new kinds of limitations. For instance, Congress should create rules that impede not only all appropriation earmarks but also other kinds of special interest legislation. That kind of reform would go much further toward dispelling the appearance of corruption in campaign contributions…

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More Responses

Campaign-Finance Law, the State of Nature, and the Nirvana Fallacy

One cannot fault Professor Derek Muller, whose work I admire and respect, for taking a hard libertarian line against campaign-finance regulation in his Liberty Forum essay. After all, that misguided approach is built into the prompt of the question posed by Law and Liberty’s editors: “Should a democracy through concerns about corruption in politics and equality…

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The End of the Great Compromise

Constitutions are more than struggles over meaning or changing social values as interpreted by judges. Constitutions are part of larger political struggles and reflect that conflicts and compromises in those larger fights. The conflicts of the New Deal ended with a compromise—one that promised an open political process in lieu of constitutional protections for the…

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Speech Equality’s Crushing Weight: Derek Muller Replies

It was a privilege to participate in this month’s Liberty Law Forum. I am deeply grateful for the opportunity to contribute the lead essay, “The Case for More Money in Politics,” and I am humbled at the thoughtful commentary provided by Professors Rick Hasen and John McGinnis, and by John Samples, all of whose opinions…

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The Bad Social Consequences of Substantive Equality: French Edition

I am going to Paris this weekend, because the OECD invited me to present on law and technology. A visit to the city of lights should be a delight, but sadly it looks like mine will be darkened by national strikes.  Unions are trying to pressure the Socialist government to drop mild reforms to French labor laws that would make it somewhat less expensive to discharge workers. Currently, workers who are not on short-term contracts have close to life tenure. The absurdity of this regime was underscored just this week, when a French labor tribunal held that a bank wrongly discharged a worker who had caused it billions of dollars of losses through illegal trades!

The sturm und drang about moving France ever so incrementally toward a free market shows the continuing importance of a nation’s founding principles.  Our revolution and Constitution embedded principles of classical liberalism in the DNA of America.  In contrast, the French Revolution created an enduring political norm demanding substantive equality, not merely equality under law. It is worth looking at the consequences of these different principles, because the renewed focus on inequality in the United States is fundamentally an attempt to make our core political concern be equality rather than liberty.

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Political Correctness Promotes Political Violence

The recent violence at Trump rallies has been the work of protesters, not of his supporters.  I am no fan of Trump, but he has as much right to speak without disruption as any citizen. Indeed, it is even more important to afford him that right than ordinary citizens, because he is the presumptive nominee of one of our two major parties. Violence distracts from the debating his ideas, such as they are, and will create greater political polarization at the expense of deliberation.

Sadly, there is a connection between this violence and the enforcement of political correctness in our educational institutions today.  The disruptive protesters at Trump rallies are almost all young—recent products of our educational system. They are thus steeped in the unreformed religion that dominates our schools—one where error has no rights.

Indeed, when Trump 2016 was chalked on the sidewalk of Emory University,  the administration began an  investigation into who wrote it. More generally, college administrators have permitted events to be cancelled because of the threat of disorder without speaking out against such cancellations.

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Clinton is a Greater Threat to Constitutional Jurisprudence than Trump

Ilya Somin has disagreed with me that Trump is likely to be better for constitutional jurisprudence than Clinton. But his arguments rely on the implausible premise that Trump is likely to change the jurisprudential commitments of the Republican party. Even more importantly, he does not address the elephant in the room: Clinton’s appointments would likely return us to a Court unconstrained by our fundamental law.

Ilya is right that if Trump could change the Republican’s basic philosophy of judges from originalism to something else, that would itself impose long-term harm to nation. But Trump’s election is unlikely to have this effect. Trump is not coming into power with a parliamentary majority and or even at the head of a well entrenched ideological movement.   The way to think of Trump is that has rented the party for his own ambitions and that he will be forming a coalition with orthodox Republicans who will make up the vast majority of Republicans in the legislature. He is thus going to have to deal with the Republicans who have an independent power base and who hope to be there long after he leaves. That not only includes legislators but the Republican establishment.  And as in coalitions generally, he will focus on the issues most important to him where there is least resistance from his partners.

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