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.

Death as the Final Frontier Between Conservatism and Classical Liberalism

The tension between conservatism and classical liberalism began with the Enlightenment's insistence  on the freedom of inquiry necessary to advance science.  And science in turn was to empower man to dominate nature—learn its secrets and turn it to man’s will. Francis Bacon saw this free inquiry as creating prosperity, lengthening life, and ultimately perhaps forestalling death. This core tenet of the Enlightenment poses profound difficulties for conservatism. It unleashes technology as a driving force in human affairs, continually upsetting the status quo and requiring the reworking of human conventions. Some of these conventions are social, like the sense of settled hierarchy…

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Thatcher’s Tragic Flaws

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Margaret Thatcher at Her Zenith: In London, Washington and Moscow not only celebrates Thatcher’s  many virtues but brilliantly captures the tragic flaws that were to bring her career to a bitter and unplanned end. Her fall was sad not only for her personally, but for classical liberalism more generally, because she left without grooming a successor who could have continued her reforms.

To begin, there is Thatcher’s character. The very single-mindedness and refusal ever to admit error that helped her push though transformative policies alienated everyone. Her opponents within the Conservative party were energized to wait for an inevitable misstep. But even Thatcher’s closest allies fell out with her. The book recounts how, as Prime Minister, Thatcher irritated and belittled Norman Tebbit, a star of her cabinet who had both the common touch and toughness to carry on her policies. Sadly, part of the reason for her abusive treatment was fear: she worried that he might gain the grassroots support to oust her, although he was in fact one of her most loyal acolytes.

Moreover, without a sound successor, Thatcher was unable to safeguard her legacy when she resigned for lack of sufficient support in the party. She had to choose John Major, who had been inadequately vetted as a short-term member of the cabinet. He turned out to be something of an opportuntist who was both unwilling and incapable of pushing Thatcher’s revolution further.

The other great tragic flaw was an intellectual mistake.

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The Larger Lessons of Increased Collaboration Among Law Professors

One of the most striking changes since I have been a law professor is the rise in the number of legal articles written jointly. This increase in collaboration is of more than academic interest because the reasons for it are leading to greater collaboration in other areas, too. The result will be greater prosperity and human flourishing.

First, joint authorship has grown with interdisciplinary scholarship. Increasingly, law is the subject of inquiry in other disciplines – economics, political science and psychology prominent among them.   But those with expertise in these areas frequently lack institutional knowledge of and practical experience in law. They can strengthen their arguments by partnering with law professors more sophistication about these matters, who, in turn get the advantage of more disciplined frameworks of social science. We see the same phenomenon in public policy, where different kinds of knowledge are more regularly pooled, resulting in a fuller, less one-dimensional view of the world.

Second, many law professors also team up in their research, even if neither have interdisciplinary backgrounds. The modern legal academy is marked by increased competition for both students and faculty. Standards for productivity and quality have clearly risen even in my two decades in the businesses. One way of competing better is to combine forces. 

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The Political Dangers of Rising Political Correctness

When I was inducted into the academic honor society at the Phillips Exeter Academy, we heard from an outside speaker, an academy graduate and a professor who happened to be an African American. Among various inflammatory remarks, he said he was surprised to hear an Irish name on the list. I shrugged off his comments, and my father, only a generation removed from the old country, still treasures this anecdote more than any other from my education.

At Phillips Exeter today, there is less tolerance for certain kinds of provocations—or even pre-provocations—than others. Last month an academy graduate and former Congressman was prevented from teaching a guest seminar because he was alleged to be an Islamophobe based on his connection with a Washington think tank. although his proposed seminar had nothing to do with Islam. (I would link to discussion of the matters in the student newspaper, but references appear to have been deleted recently—itself perhaps a sign of censorship and cover-up). On the other hand, one of Exeter’s own teachers penned an essay attacking “white privilege.” Thus, I guess it is not entirely clear how the comment at my ceremony would be treated today.

That’s one of the problems with political correctness: its high double standards informed by Left identity politics. And PC seems to be becoming a much greater problem at our high schools.

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The Unnatural State

The Economist reports that in five nations net transfers (private plus public) go from the young to the old rather than the other way around. Some of these nations are deeply social democratic (Germany, Austria, Slovenia). Some are thought to be conservative (Hungary, Japan). But all have in common large social entitlements.

This trend shows show how welfare states can reverse the natural order of things, where the old give more to the young than the young can ever repay. Families exemplify this principle. Socially too, the intergenerational flow of resources is what creates civilization as each generation receives benefits from the previous one.

Now to be sure, not everything that is natural is good. But few people criticize the special solicitude parents feel for their children or the old feel for the young generally. And entitlements to the elderly cannot easily be justified by abstract appeal to the justice of redistribution. It is simply not the case that the elderly as class are poorer than the young.

The social consequences of this unnatural flow are deeply unfortunate.

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Obama’s Responsibility for Political Polarization

In his state of the union and again in his recent interview with Politico, President Obama expressed sorrow that he has not been able to end political animosities. As he put it in the interview, “a singular regret for me is the fact that our body politic has become more polarized, the language, the spirit has become meaner than when I came in.”

Obama blames different factors from the media to gerrymandering for our angry divisions. But Obama himself is in no small measure responsible for polarization. His reliance on executive action, most egregiously his order on immigration, is a primary cause. Unsupported by any express delegation from Congress, this extraordinary act is enormously controversial. It seeks to permit five million people who have come to this country illegally not only to stay but to work.

Legislation on divisive issues is much less likely to lead to polarization than executive fiat.

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Margaret Thatcher, Heroine of Classical Liberalism

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When I went to Oxford in 1978, I had looked forward to spending many weekends in London, one of the great metropolises in all of history. But after an initial visit, I rarely returned. Outside of a few well-known precincts it was a shabby city. But even worse than its appearance was the general sense of lassitude, even paralysis. For instance, it was hard to find places to sell you the simplest groceries outside of very strict business hours. And I was always worried about getting back to Oxford. Industrial action in the form of railway and tube strikes could occur at any time. The economic and spiritual climate of the country was as dismal as its fall and winter weather.

But now London is again one of the great cities of the world, vibrant, innovative and resplendent. One woman is responsible for the transformation of the city and the nation of which it is the capital. That is why it is such a wonderful event to have a superb new biography of her glory years by Charles Moore: Margaret Thatcher at Her Zenith: In London, Washington and Moscow. The book shows why she is one of the rare leaders who transfigured her nation for decades, if not centuries to come. The comparison is less to other British Prime Ministers, but to other transformative world leaders, like Peter the Great or Ataturk. And what separates Thatcher from those leaders is not only her sex, but her democratic methods. She was able to accomplish her goals while persuading fickle and shifting popular opinion.

In this volume Moore details the manner in which Thatcher replaced the state with the market in occupying the commanding heights of the economy.

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Two Non-Constitutional Ways of Protecting Economic Liberty

In two recent posts, I have suggested that the Fourteenth Amendment of the Constitution does protect economic liberty against the states but in a modest way. Legislation, like a state granted monopoly,  that merely protects one group of people over another is illegal.  But states are free to pass inefficient legislation that trenches on liberty so long as it has a bona fide police power rationale, like health and safety. The Fourteenth Amendment does not enact cost-benefit analysis.

Thus, the direct results for economic liberty of hewing to a more originalist understanding of the Fourteenth Amendment will be modest, because much legislation is inefficient, but not simply protectionist.  But there are other means of achieving the goals sought by a more stringent judicial review of economic legislation, most importantly more vigorous use of the federal antitrust law and the establishment of state and local agencies that impose cost-benefit analysis on regulations.

In North Carolina State Board of Dental Examiners v. FTC, The Supreme Court recently made clear that agencies that are composed of a majority of industry representatives are subject to antitrust scrutiny, unless they are “actively supervised by the state.”

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Conservative and Libertarian Legal Scholars Are More Published and Cited

In a fascinating article, James Phillips has focused on the productivity, citations, and credentials of scholars at the top sixteen law schools. His analysis suggests that conservatives and libertarians are more productive, better cited, and, with one important exception, better credentialed than other scholars. The powerful combination of these findings is thus consistent with the hypothesis that conservatives suffer discrimination in hiring, perhaps particularly in the lateral market when productivity and citation data are very visible. It is as if they are competing in a race with an extra weight on their backs.

I recommend reading the entire article, whose statistics cannot be full summarized nor independently evaluated here.  But on what appear to me to be the best specifications, the differences in productivity and citations are not small. Conservatives and libertarians write about three quarters of an article more per year than other professors, both liberals and those of unknown ideology. They garner 13 to 37 more citations than other professors, which is quite a lot given that the average for a year across faculties is only 41 citations. When measured against liberals alone, they are also more productive and more cited, although not by quite as much. They are also better credentialed in matters like membership on law reviews and grade honors in law schools and clerkships, although others are more likely to have a doctorate in another discipline.

Assuming this article is accurate, the normative implication that I draw is that in hiring schools should weigh more objective data, like productivity and citations counts more heavily and take less account of their faculty’s more subjective impression of scholarship.

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14th Amendment Bars Protectionism, But Not Inefficient Regulation

In a previous post, I argued that the Fourteenth Amendment protects economic liberties. One concern often expressed about such protection  is that the courts would become “a perpetual censor” of all  legislation. But the best evidence of the originalist standard of review shows that concern is misplaced. The standard forbids economically protectionist legislation directed against citizens within a state, but is otherwise relatively modest.

Here Justice Field’s dissent in Slaughterhouse is again instructive both about which rationales justify trenching on economic liberties and which do not. (While his opinion relied on the Privileges or Immunities Clause, two justices who would have also relied on the Due Process Clause concurred on these standards).  Fields, of course, would have invalidated the Louisiana monopoly that made it impossible for other butchers within the state to compete in New Orleans. Thus, it is not a justification under the Fourteenth Amendment to prefer one group of citizens to another. Economic protectionism, which is the essence of a state granted monopoly without public regarding considerations, is thus unconstitutional.

Indeed, no Supreme Court case has ever clearly stated that state regulation based on economic protectionism or on favoring one class of citizens over another is constitutional. The fact that the Court at the height of the New Deal was unwilling to say that states were justified in preferring one class of citizens over another because of politics shows how unpersuasive it the attempt to conclude that purely protectionist legislation meets even the most lenient standard of review.

The harder question is how courts are to proceed, assuming that the defense of the legislation can be rooted in a putative police power objective.

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