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.

Fast Track for the Trans Pacific Partnership Accords with Democracy

The left and even some Republicans have argued that the procedures for agreeing to the Trans Pacific Partnership are undemocratic. A leading argument is that voting for “fast track” for the TPP violates democratic principles because Congress is changing its rules now in order to later ratify an agreement it has not yet seen.

The arguments are wholly misplaced. “Fast track” simply permits Congress under its ordinary procedures to commit to a future majority vote of Congress to vote up or down on an agreement that the President has negotiated. Representative democracy is thus served by the later vote on an agreement whose text is known.

It is true that fast track eliminates certain procedural obstacles like the filibuster rule in the Senate and the requirements of committee approval. But there is nothing sacrosanct about a set of procedural rules to democracy.

Read More

A Culture of Authenticity versus a Jurisprudence of Principle

originalist_08_1228

Our literary, journalistic, and thespian culture is, to put it mildly, not hospitable to conservatism in general or the legal formalism with which conservatives have long been associated. The obvious, but shallower reason, for this clash, is that our cultural elites of every kind are overwhelmingly left-liberal. The deeper reason is that much of our culture is so driven by questions of personal identity and authenticity that it has trouble even comprehending the impersonality of the principles that are at the heart of republican constitutionalism.

The Originalist, a play about Antonin Scalia, at the Arena Stage illustrates both of these problems. The conceit of the play is that Scalia has hired a liberal law clerk, Cat, and they argue about different cases. But the author does not spend nearly enough time explicating originalism or for that matter any other jurisprudence to make the play a battle of ideals. As I say in my review for City Journal, the playwright John Strand is no Tom Stoppard and “has written an intellectual ghost story, in which shadows of ideas fret their minutes on the stage.”

It almost goes without saying that play trots out the usual stereotypes of conservatives.

Read More

For-Profit and Non-profit Organizations Should Enjoy the Same Civic Rights

In Burwell v. Hobby Lobby, Justice Ruth Bader Ginsburg drew a sharp contrast between for-profit and religious organizations.  Whereas for-profits are “organized to do business in the commercial world,” religious organizations, she said, serve citizens as believers. The strict separation between commerce and other spheres of civic life is also reflected in the common complaint that the Supreme Court in Citizens United wrongly reached out to extend First Amendment protection to for-profit corporations as well as the non-profit corporation actually at issue in the case.

The attempt to deprive for-profit enterprises of the rights to participate in political and civic life is characteristic of modern left-liberalism, which seems to believe that for-profit activity is inherently less civic-minded than not-for-profit endeavors.  The distinction is not altogether new. For centuries nobles disdained those in trade and asserted that merchants should have fewer rights than they did.   This stance is yet another instance where social democrats want to create a society based on status distinctions rather than on the exercise of equal legal rights.

But the distinction is not a sound one. 

Read More

Originalists Need a Distinctive Theory of Precedent

In Comptroller v. Wynne, the Supreme Court this week invalidated a Maryland tax on the basis of the dormant commerce clause, despite claims by Justice Antonin Scalia and Justice Clarence Thomas in dissent that the dormant commerce clause is not grounded in the original meaning of the Constitution. Michael Greve celebrated the majority’s choice to follow long established dormant commerce clause precedent and implicitly suggested that Wynne provides evidence that originalism is an implausible and even futile interpretive theory.

Michael is half-right. Originalism is certainly an inadequate theory if it cannot find a principled approach to precedent, like that on which the Wynn majority relied. Certainly, it is not politically possible for the Court to discard settled precedent when to do so would have enormous costs for society or when the precedents have become as accepted as constitutional provisions themselves. But, as Mike Rappaport and I have argued, the Constitution contemplates that justices will follow precedent. Moreover, sensible precedent rules are available that preserve the bite of originalism and still permit the Court to affirm a substantial number of well-established precedents.

Thus, my criticism of the opinions in Wynne is quite different from Michael’s.

Read More

How Hillary Clinton Wants to Create Two Classes of Citizens

Secretary of State Hillary Clinton greets Senator John McCain (R-AZ) as she arrives to testify before the Senate Foreign Relations Committee hearing on the terrorist attacks on the U.S. Embassy in Benghazi, in Washington, DC on January 23, 2013.   UPI/Molly Riley

Hillary Clinton has made her first statement about what she wants in a Supreme Court justice. Instead of focusing on jurisprudential philosophy, Clinton has laid out a litmus test defined by a particular case: her justice must be committed to overruling Citizens United.

This comment shows that Clinton wants to abridge core political freedoms and to create two classes of citizens—the scribal class which has special privileges to speak at election time and the rest of us who are prevented from disseminating our views as effectively. Recall that Citizens United was a non-profit corporation that put out a video that criticized none other than Hillary Clinton, then as now running in a primary for the Democratic presidential nomination. The McCain-Feingold legislation made such criticism by a corporation illegal in the run-up to a primary, but the Supreme Court struck down this prohibition as violating the First Amendment. The legislation  expressly exempted media corporations from its prohibitions, creating a distinction between those in the media and everyone else.

The Court’s decision was clearly correct. As I argued fifteen years ago, and as Mike McConnell has since developed independently at much greater length, the dissemination of such independent views is encompassed within the freedom of the press.

Read More

Creating a Unitary Supreme Court

I am grateful for Michael Greve’s post on my analysis of Our Two Supreme Courts. I wholly agree with his positive point. The political or aristocratic Court comes to the fore not only in constitutional cases, but in statutory interpretation cases that implicate constitutional values or important political issues. Preemption is a fine example because the broader is the scope of preemption, the more limited is the authority of the states.

I am in less agreement with his normative point. I had argued that the way to dissolve the difference between the legal and the political court was for the Court always to take the same formalist approach that it does in ordinary statutory cases, like interpreting the bankruptcy code. Michael doubts that such formalism is regularly  possible in constitutional law because of the open ended nature of constitutional provisions. But Mike Rappaport and I have argued previously that the common claims that constitutional provisions are abstract and need to be filled in by judges may well be false. Once we know more about their history, we can often determine a clearer meaning of the constitutional provision at issue.

Read More

Jumping the Inequality Shark: The Antitrust Episode

The left and much of the news media are trying to make inequality the central political issue for our time. Their success would create a bigger state with more discretionary powers and, ultimately, less wealth for those at the bottom, because a focus on inequality per se is not directed to improving the living standards of the worse off. As Margaret Thatcher once replied to an MP who complained that her policies were increasing inequality: “So long as the gap is smaller, [those focusing on inequality] would rather have the poor poorer. You do not create wealth and opportunity that way. You do not create a property-owning democracy that way.”

The dangers of a focus on inequality become salient in a recent column by Eduardo Porter, in which he argues that concern about inequality should lead us to revise a variety of regulations and structures in democratic society. Many of his proposals, like empowering unions, would have adverse effects on the poor, as evidenced by the bad effects of public sector unions on education, but the most absurd example is his call for change in antitrust to account not only for efficiency but also inequality.

In the last half century, antitrust law has been improved by a single-minded focus – on the part of enforcers and judges – on whether government intervention will improve consumer welfare.

Read More

A British Victory for Liberty

David Cameron’s unexpected victory in the British elections Thursday is also an important victory for liberty. Rather than increasing spending after the financial crisis, he pursued what the left terms “austerity” policies. An austerity program is better described as a liberty program because it curbs the reach of the state by shrinking it. By contrast, government stimulus programs, like those supported by most of the intelligentsia in the UK and elsewhere, make the state more powerful by allowing politicians to direct a firehose of money where it will do them the most good.

Cameron’s constitutional thinking is sound as well. He wants to reform Britain’s relationship with the EU to make the latter more a free trade zone than a super state. Subsidiarity within a free trade zone can foster freedom while preserving accountable government. Within the UK, Cameron is also for the devolution of powers, not only in Scotland, but also in England, which should further align government with the people. Local jurisdictions could be more responsive to their citizens, and those who do not agree with the local politics may be able to move to another jurisdiction within the United Kingdom with policies they prefer.

Cameron’s differences with Ed Miliband’s Labor Party were huge.

Read More

Our Two Supreme Courts

Speaking at Northwestern University Law School this semester, Justice Elena Kagan may have revealed more than she intended.  Amidst her entertaining and witty remarks, she described two very different kinds of discussions that take place at the conferences where the justices decide cases.  In shorter conferences, the justices, in order of seniority, with the Chief going first, state their votes with brief statements of reasons.  Justice Kagan observed that shorter conferences tend to be the high profile cases that appear on the front page of the newspaper.  She surmised that further debate in these cases would likely make her colleagues irritated with those of opposing views.

She then described longer conferences, where the justices after stating their positions—sometimes tentative ones– entertain more general deliberations, trying to figure out exactly what the right answer should be.  They then focus on and often resolve thorny legal questions.  Justice Kagan said that during her time on the Court one of the longest conferences revolved around an obscure jurisdictional issue of the kind that would draw no public attention.

Justice Kagan’s remarks are consistent with my view that we have not one but two Supreme Courts. One is a political court, in which the justices play the aristocratic element in a mixed political regime. Today our aristocratic element consists not of landed nobles but the cognitive elite well represented in judiciary by those who graduated from the nation’s best law schools.

Read More

Causes and Consequences of the Legal Academy’s Lack of Political Diversity

The Harvard Crimson reports that 98 percent of political donations made by the Harvard Law School faculty goes to Democrats. This disproportion suggests that the lack of political diversity at elite law schools is no better than when I reported on it in my own study ten years ago. As the Anglican church was said to be the Tory party at prayer in nineteenth century England, the legal academy today remains the Democratic party at play.

Already comments dismissing the import of the study are to be found on the internet, such as the observation that the donations at Koch Industries may be similarly one-sided. That misses the point. The concern is not about the political donations per se, but that their distribution suggests that intellectual atmosphere at schools like HLS is politically insular. Lawyers, as  Alexis De Tocqueville said, are the political aristocrats of American society, and our elite law schools importantly shape their education. Moreover, law school professors play a large role in the production of new legal ideas and reforms.

There are, no doubt, many reasons for such gross ideological imbalance.  One that is little discussed is network effects.

Read More