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 Classical Liberal Case Against Brexit

Britain votes on whether to leave the European Union in a month. If I were a British, it would be a difficult decision, but on balance I would vote against Brexit. The benefits of free trade outweigh the costs of the EU’s regulatory regime.

From its birth classical liberalism has been dedicated to free trade among nations. Trade allows nations to specialize at products and services and which they excel, enriching them all. It creates a larger market, providing incentives for innovation and it is innovation that ultimately transforms the standard of living. This latter benefit is particularly important in this era of technological acceleration. More generally, free trade signals an openness to the world and a tolerance of foreigners.  It is a moral as well as economic good.

EU is the largest free trade zone in the world and that counts heavily in favor of staying. But the free zone comes bundled with other more controversial requirements. For instance, membership carries with it the requirement to let citizens of other EU members work in Britain.

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Trump, Clinton, and the Supreme Court

There are many reasons for classical liberals to oppose Donald Trump in the general election, but Supreme Court appointments are not now one of them. We can hardly be confident that his appointments will make America great, but we can be pretty confident that Hillary Clinton’s will end the current project of making the Supreme Court a court of law rather than a dynamo of Progressive politics.

After Donald Trump’s announcement of eleven judges whom he would consider appointing to the Scalia vacancy, many libertarian and conservatives commentators still doubted that Supreme Court appointments were a good reason to support Trump in the general election. They conceded that that those on his list were generally excellent candidates, but suggested that Trump could not be trusted to appoint people like them.

And they certainly have a point: on many issues Trump points in no direction more consistently than a weathervane. Moreover, he has supported a variety of legal causes, like property condemnation on behalf of private development, that would not likely fare well with the kind of justices he has promised to appoint.

Nevertheless, I believe there is a substantial probability, even a likelihood that Trump would follow through on his judicial promises.

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The Case Against Disclosing Candidates’ Tax Returns

I have previously expressed very substantial reservations about Donald Trump’s candidacy, but decline to join in the criticism about his refusal to release his tax returns. While a norm has developed suggesting that citizens have a right to see tax returns of presidential candidates and indeed candidates for some other offices, it is a bad norm.  It invades privacy, discourages some people from entering politics, distracts from policy issues, and harms the prospects of those with complex financial affairs.

The secrecy of our tax returns from prying eyes is itself a valuable social norm that reflects the overriding fact that our earnings are our own, not the government’s. The government can scrutinize our tax returns but only for the purpose of showing what we owe. Strong laws protect the secrecy of our tax returns, showing the strength of privacy norms in this area.

Thus, countervailing factors would have to be strong enough to overcome this basic norm.  But in fact there are issues peculiar to political campaign that also militate against a norm for disclosure.

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It Isn’t 1964: Don’t Nationalize Decisions about Transgender Access

The Obama administration has ordered schools and government facilities to give transgender individuals access to facilities such as bathrooms and showers on the basis of the gender which they identify, regardless of their biological sex.  Ed Whelan has already shown in a series of persuasive posts how wrong the administration is in it its interpretation of Titles VII and IX of the Civil Right Act. Here I want to discuss another mistake: the impulse to nationalize rules about complex matters of social norms that are better handled by private and decentralized ordering.

Permitting transgender people to use facilities involves issues of respect for individual difference and the privacy of personal space. I am not sure how I would resolve these issues myself. It may well depend on circumstances, such as context and place. But we will make more sensible resolutions of these issues in the long run, if the businesses and localities are allowed to make their own decisions for private and public facilities respectively.  New social norms are likely to be shaped for the better, if individuals and groups are allowed to act freely without government intervention outside of preventing force and fraud.

The contrary view is that this is a matter of civil rights where national laws are needed based on philosophical premises. The analogy is to the discrimination against African Americans before the Civil Rights Act.  Indeed, for the left on such matters it is always 1964.

But the analogy to racial discrimination of that era is misleading.

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The Inadequacy of Trump and Clinton as Heads of State

The President of the United States is both head of government and head of state. As a result, he must not simply act as a party leader, but as the leader of the United States. He is both obligated to respect social traditions that contribute to national unity and behave personally in ways that promote the sound social norms that undergird civil society.

I have almost nothing good to say about President Obama’s policies as head of government. Probably the most important policy with which I wholeheartedly agree is his decision to move toward privatizing space exploration, a pretty insignificant matter. But I give him high marks as head of state. He has behaved decorously, has largely respected the social traditions of the office, and has refrained from personally denouncing his opponents.

Sadly, I have no such confidence in the performance of either of the candidates most likely to be elected President in 2016. It is almost superfluous to detail the reasons that Donald Trump is likely to fall short. He insults his opponents in the most personal terms and vulgarly discusses matters in public that should be private. My friend Heather Mac Donald rightfully argues that his presidency is likely to coarsen an already coarse social culture.

But Hillary Clinton is in my view no better.

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Uber Drivers—This Century’s Yeomen of Liberty

One of the great pleasures of using Uber is talking to drivers about why they have chosen to use the service. Almost to a man (and so far all my drivers have been men) they celebrate being their own boss.  They decide when and where they would like to drive and even what model of car they will use.

Their ebullience about Uber is also informed by their previous experiences as employees. Quite a few previously worked for limousine companies and had difficulty getting along with management. One was summarily fired to make way for a nephew of the owner.

Their independence has social and political as well as personal benefits. It is striking in my conversations how aware they are of regulatory threats to their business and of the price of inputs, like insurance. Their knowledge translates into a healthy skepticism of government intervention generally. The political sensibility that comes from being in small business is one of the greatest bulwarks of liberty.

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Don’t Tax University Endowments (Even if It Might Seem Like Rough Justice)

It is hard to suppress schadenfreude as legislators offer proposals to tax the endowments of our elite universities. Their administrators and professors are overwhelmingly Democratic—indeed left-liberal Democrats. They regularly support candidates who want to raise taxes on for-profit corporations and individuals.

Even more piquantly, most of the taxes proposed would target only wealthy universities. Of course, soaking the rich is de rigueur for the left-liberal. And the most serious proposals are coming from blue states, like Connecticut, that are desperately seeking new sources of revenue as business and individuals flee the state’s already onerous taxation and its job killing regulations.

Nevertheless, these are bad ideas.

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A Postmortem on Classical Liberalism in the 2016 Presidential Primary

United States Declaration of Independence on flag background

At the beginning of the campaign for the Republican nomination, many thought that it was a libertarian moment in which even Rand Paul might well emerge victorious. But with tonight’s results from Indiana, the Republican Party seems poised to nominate the most illiberal candidate in its history—someone who wants to restrict trade and civil liberties and has no interest in taming the growth of the state.

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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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