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 Common Law Roots of the Duty of Clarity

In his brilliant book The Ideological Origins of the American Revolution Bernard Bailyn wrote: “English law—as authority as legitimizing precedent, as embodied principle, and as the framework of historical understanding—stood side by side with Enlightenment rationalism in the minds of the Revolutionary Generation.” The Constitution itself was a product of those same minds caught between the traditions of the common law and the axioms of the Enlightenment. Understanding the Constitution correctly depends on giving appropriate weight to its common law background.

The judicial duty of clarity along with judicial methods of clarification reflects the common law background of judicial review.

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The Judiciary Should Interpret, Not Construct, the Constitution

My recent paper, The Duty of Clarity, has substantial implications for an important current controversy in originalist theory—whether the judiciary should engage in construction as opposed to interpretation of constitutional provisions. The judicial duty of clarity suggests that the judiciary cannot engage in construction during the course of judicial review.  Construction takes place only when a provision is unclear, and the duty of clarity permits the judiciary to invalidate a provision only when it clearly conflicts with the Constitution.

The controversy over the role of construction and interpretation arises from recent developments in originalist theory. Some theorists, often called the New Originalists, like Randy Barnett, Larry Solum, Jack Balkin, and Keith Whittington, have sought to recast originalism by making a strong distinction between language in the Constitution that is clear and language that is not. For clear language, interpretation governs, and the process of interpretation seeks to discover the semantic meaning of a provision at the time it was enacted. Unclear language, in contrast, creates a so-called Construction Zone, when conventional legal meaning runs out. Within the Construction Zone, the constitutional decision maker must necessarily appeal to materials extraneous to the semantic meaning of the Constitution.

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Why Thayer is Clearly Mistaken about Judicial Restraint

James Bradley Thayer’s article on judicial review is one of the most renowned pieces of scholarship in American constitutional law. It is famous for the “clear mistake doctrine”—his notion that legislation should be struck down only if it violated what any rational person would believe the Constitution to mean.  “Clear mistake” thus embodies very strong judicial restraint.  My article, The Duty of Clarity, shows why “clear mistake” is itself clearly mistaken.

Thayer’s strongest originalist support for the doctrine comes from the many cases around the time of the Framing that state that judges should  invalidate legislation only when it is in clear or “manifest contradiction” with the Constitution. But Thayer misunderstands these cases because his own premises about law are so different from those of the Framers.  He quotes the words of law without understanding the accompanying jurisprudential music.

First, unlike those in the Framing generation, Thayer believes that constitutional law serves a political function that differs fundamentally from other applications of law. 

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Clarifying Judicial Restraint

The notion that judges should uphold congressional legislation if it can be supported by a possible interpretation, even if not the best, of the Constitution remains evergreen in constitutional law. This conception of judicial deference, often referred to as judicial restraint, figures prominently in debates about recent important cases in constitutional law. For instance, some commentators believe that an obligation of judicial deference militated in favor of upholding the individual mandate in litigation over the Affordable Care Act,

I have recently posted a paper that provides an originalist resolution of this issue. Called The Duty of Clarity, the article shows that the Constitution contemplates that judges are to exercise a duty of clarity before declining to follow legislation because it violates the Constitution.   That is, they were to exercise the power of judicial review only if the legislation at issue proved to be in manifest contradiction of a constitutional provision.  But judges were also expected to use the ample legal methods of clarification available to pin down the Constitution’s precise meaning.

It thus rejects two common, but opposing views about judicial deference.  One is a no-deference view—the claim that no obligation of clarity should exist in judicial review: judges should invalidate their statutes if they think that there is conflict with the Constitution, even if they cannot come to a stable and clear view that there is such a contradiction. The other is the Thayerian deference view—the claim that a statute should be upheld so long a rational person could provide an interpretation of the statute that would uphold it.

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The California Bar’s Self-Serving Proposals

Last week California followed New York in proposing a requirement of 50 hours of pro bono work for prospective lawyers.  Unlike New York’s existing rule, which requires lawyers to serve their time before admittance to the bar, the California proposal permits them to meet the requirement shortly afterwards as well.  California’s proposal also requires 15 “units” of “experiential learning,” within such activities as clinics or externships, that can be satisfied either during law school or separately in a private externship. This proposal is an unfortunate one–both protectionist and ideologically one-sided.

First, assuming that units translate to credits, the requirement of 15 credits of experiential learning —a significant proportion of law school coursework—will make some students’ legal education less valuable and likely make it more expensive for everyone.  Some students would benefit more from the additional course work crowded out by experiential learning.

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Watson Comes to Law


The latest news from the world of technology suggests that advances in computation may disrupt the legal profession sooner and more broadly than I had thought. Students at the University of Toronto recently designed a new legal search tool, winning a competition for the best use of IBM’s newest computational resource, Watson.  Specially designed and programmed,  Watson challenged the best Jeopardy players in the world in 2011 – and won. IBM, however, was not aiming at world Jeopardy domination but at making money by invading other more lucrative domains. And it has already spun off a division to exploit Watson’s technology in fields as varied as medical diagnostics and aerospace engineering.

Wisely, IBM has also begun university competitions to interest students in designing new uses for Watson.  The result from Canada is Ross, an application  expressly designed for legal research.  Computerized legal research is itself nothing new, having begun over forty years ago.  Today, Lexis/Nexis and Westlaw are better known than any single law firm. But Ross has two advantages over the kind of computerized legal search most of us have known.

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The Dangerous Weakness of Modern Progressivism

Immigration Executive Action

Modern progressivism’s relatively weak legislative coalition explains much of the behavior of the Obama administration and the new threats it poses to our constitutional order.  As I discuss in an article just published in the City Journal, under FDR and even LBJ, the Democratic party had much more enduring power in Congress. Moreover, these administrations were not nearly so hamstrung as is the Obama administration by deficits and high government spending caused in no small measure by previous progressive experiments. Thus, previous progressive administrations could often be more forthright in the proclamation of their goals and rely on their large legislative majorities to enact and revise the central parts of their programs.

But the Obama administration needs to compensate for its relative weakness by misleading the public and exalting executive power even beyond the previous efforts of progressives.  For instance, the President’s repeated promise that you can keep your health care insurance and doctor was necessary to enact the Affordable Care Act, because in our more affluent society the great majority are happy with their health care.  As I note in the piece:

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Fusionism and Federalism

I spent the weekend at an excellent conference on the work of Frank S. Meyer, a leading post-war thinker of the right.  His major effort has generally been called fusionism –an attempt to marry classical liberalism and traditional conservatism. But he himself did not claim the term “fusionism”: that was a label others affixed.  He saw himself as revealing the complementary nature of liberty and tradition rather than creating a new alloy out of disparate materials.   For Meyer, liberty was the end of politics, and that fact could be apprehended by reason. But because of the constraints of human knowledge, traditions were important as  a guide for the appropriate realization of liberty. And traditions help men choose virtue when political freedom appropriately gives them that choice.

Besides its importance in reconciling liberty with tradition analytically, fusionism had and continues to have important political implications.

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Meaning and Consequences in King v. Burwell

Supreme Court Hears Case Challenging Obama's Affordable Health Care Act

Jack Balkin has made an interesting observation about the argument in King v. Burwell:

One of the strongest arguments for the government’s position in King v. Burwell has been based on consequences: if the Supreme Court denied insurance subsidies to customers on federal exchanges, the consequences will be disastrous both for insureds and for the states.

But he goes on to note that not all the justices agree on the consequences, pointing out that unlike some of the other justices, Scalia thinks that Congress would fix the statute if subsidies become unavailable on federal exchanges. Balkin thinks this disagreement may prove a problem for the success of the government’s argument. I think the disagreement provides yet another reason that arguments based on such consequences have no place in the judiciary’s determination of the meaning of a law.

In my view, the meaning of a statute, like the meaning of a constitutional provision, is established at the time it was enacted.

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Breathing Homer’s Pure Serene

Why Homer Matters is the best book about literature I have read in decades. Significantly, its author, Adam Nicolson, is not a tenured professor at some famous university or even an independent classical scholar. And this difference shows, all to the benefit of the reader.  An accomplished sailor, Nicolson has endured gales and felt the spume and spray of sail, like Odysseus. He has faced the cold steel of a dagger point against him on the plains of the Levant, not unlike the warriors of Troy.  He is not some old, bald head, annotating lines from his study, but instead advances our understanding of the poems through his own travels and personal discoveries from a life fully lived.   Particularly in this age when so much literature is refracted through the prism of political correctness, it is invigorating to read a book so loud and bold in its reassertion of the centrality of these canonical texts to seeing our own world.

That is not to say that the book is not learned. Nicolson has a comprehensive understanding of the most important aspects of Homeric scholarship.

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