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.

A Focus Group on Originalism

These are the best of times and the worst of times for originalism. On the positive side, originalism has never been so discussed in the legal academy and, in the modern era, never have originalist arguments been taken so seriously on the Supreme Court. On the negative side, originalism has never been so fragmented with so many competing justifications and such fundamental differences in the methods for ascertaining the meaning of particular provisions of the Constitution.  And, as Steve Smith, has written in these pages, some originalists believe that the judiciary has such a large role to play in choosing how to make operational constitutional provisions deemed radically indeterminate that originalism seems no longer to create any restraints on the judiciary—one of its original, and, in Steve’s view, salutary functions.

Some of the current discontents of originalism may be an inevitable consequence of its success.  Academics do not succeed by parroting the old theories, but by minting new ones: the multiplication of justifications and methodologies for originalism is the inevitable result. But this academic economy of theorizing does not mean that originalism has not greatly been greatly enriched from being pushed and pulled by ambitious professors of varying ideologies.  The most salient questions about both the persuasiveness of originalism and its practice are clearer than they were in the days when it functioned as a theory of judicial restraint. And despite the differences among originalists,  originalists of various views are far less likely to talk past one another than were constitutional theorists of the past who began from utterly  incompatible premises.

Over the weekend, I met with group of mostly young  academics to talk about some of the internal debates within originalism.  What I heard would have cheered Steve Smith.

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A Star is Torn

In the Energy Star Program, the Energy Department rates energy-efficient and otherwise green appliances. The New York Times has reported that government officials in charge of Energy Star did not do a good job of monitoring compliance with the program’s standards and valorized a host of products that fall far short of the proclaimed criteria. In addition, some of the companies actively misled government officials.

Trial lawyers are now in the wings, ready to sue companies that  they allege were serpentine rather than stellar.  According to the Times, a congressman who represents a district where a company that used the Energy Star program has a large factory has introduced legislation to prevent class action lawsuits from being brought in connection with the Energy Star program.

In general, I believe that class actions for failure of a product to meet its quality claims are a mistake. 

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Eleven Propositions that Sum to Zero

2014 Democratic State Convention

Over the weekend Elizabeth Warren, the Senator from Massachusetts and a former professor at Harvard Law School, outlined eleven propositions, dubbed by the National Journal as “eleven commandments” for progressives.  Warren is a very bright leader of today’s progressivism. Her propositions provide a window on the future trajectory of the Democratic party and its approach to law, three aspects of which seem particularly notable:

1.Opposition to crony capitalism. Warren wants government to make sure the banking system and Internet are run for the benefit of the people not big corporations.

2.Use of the regulatory system rather than tax system. Nowhere does Warren expressly call for higher taxes. But she does endorse a slew of regulatory interventions—a higher minimum wage, stronger protections for unions and “equal pay” provisions for women.

3. A relentless focus on equality.  In marriage, in pay, and in access to higher education and contraceptives paid for by the government.

If these are the tenets of future progressivism, friends of liberty need to sharpen their critique.

1. They need to co-opt the attack on crony capitalism.

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Mutable ACLU v. Immovable Cato

The ACLU has modified over the last decade two important positions on civil liberties. Historically its position had been that limiting contributions to political campaigns was unconstitutional. In 2010 it shifted to support “reasonable” limits on contributions to political campaigns.  Strikingly, the ACLU in 2013 then failed to file any brief at all in McCutcheon v. FEC, which challenged aggregate limits on contributions. These limits prevented citizens from expressing support for individual candidates, even when those individual contributions were of modest size.

Second, in 1993 ACLU President  Nadine Strossen enthusiastically supported the Religious Freedom Restoration Act.  Later the ACLU, as David Bernstein reported, continued to support legal exemptions for reasons of religious conscience, but opposed subsequent bills providing for across-the-board exemptions  because of fear that they would interfere with anti-discrimination laws.  The ACLU today supports the bill to override the Hobby Lobby even though the  decision did not involve an anti-discrimination law.

In contrast, CATO, the premier libertarian think-tank, has been relentlessly consistent in its views on domestic policy, opposing infringements on both civil rights and property rights alike. The consistency has continued despite some unfortunate recent squabbles about the structure of its leadership.

The difference between the mutability of ACLU and the constancy of Cato underscores important truths about both the nature of liberty and politics.

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Progressive Jurisprudence’s Assault on Mediating Institutions

A disturbing aspect of the jurisprudence of justices on the left of the Supreme Court is their unwillingness to grant constitutional protections to mediating institutions. This hostility to mediating institutions—structures that help individuals join together to exercise power independent of the state—was demonstrated both in Citizens United and Hobby Lobby. In Citizens United, four justices would have prevented corporations from exercising the same First Amendment rights as individuals to express opinions before an election. In Hobby Lobby Justices Ginsburg and Sotomayor would have held that even closely held corporations could not obtain the protections of the Religious Freedom Restoration Act.

The measure of these justices’ hostility lies in their Houdini-like efforts to escape the established doctrine that supported the rights of corporations in these cases. The majority decision in Citizens United rested on the long First Amendment tradition of protecting the freedom of speech rights of corporations. For instance, New York Times v. Sullivan, offering a First Amendment shield against libel actions against public figures, involved a corporation.  Moreover, the history of commercial speech rights is almost entirely that of corporate rights. The majority in Hobby Lobby relied on the Dictionary Act, which expressly directs courts to include corporations within the definition of a person unless the context suggests otherwise.

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The Crucible: a Parable of the Red Scare or the Totalitarian State?

Saturday I went to The Crucible by Arthur Miller at the Old Vic in London. The production was very well staged and well acted, but the play itself is problematic.  As many readers of our blog will know, the play loosely recreates the Salem Witch trials in which a variety of hysterical young women accused their elders of being witches. The result was that twenty blameless people, mostly women, were hanged after relatively summary trials.

The Crucible has some undoubted power, beginning with the baseless accusations and building toward a crescendo of condemnations of an ever wider group of innocents. The last scene focuses on whether John Proctor will confess to the crime of witchcraft in order to save himself from execution. He refuses to testify to a lie that will legitimize the trials, thereby redeeming a life that had been blemished by adultery with one of the accusers.

The principal aesthetic problem with the play is that it veers to  unrelenting melodrama without the leavening humor that even the greatest tragedies in our language incorporate. Critics have compared it instead to a Greek tragedy, but Hegel correctly noted that the great Greek political tragedies feature “a clash of right with right.”  There is no such clash here with all the martyrs except John Proctor portrayed as saints and the accusers and judges as either hysterics or villains.

Politically, the play is more troubling. As we know from his autobiography Timebends, Arthur Miller intended it to be an allegory for the “red scare,” where many communists and fellow travelers were summoned before Congress to name names. The difficulty with this analogy is clear. There were no witches. On the other hand there undoubtedly were communists.

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Civilization Hangs From a Thread

Yesterday I enjoyed an exhibition at Tate Britain on the life and art collection of Kenneth Clark. Lord Clark was the leading art historian of his generation, the Director of the British National Gallery, and the  assembler of an exquisite collection of his own.  For me the  exhibition recalled a more personal connection.  His famous  television documentary Civilization had instilled in a teenager from a decidedly non-artistic family an abiding passion for European art, particularly from the Italian Renaissance. What I learned from the exhibit was that this enlargement of my world was yet another gift from those we now call the…

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Intensifying International Competition

Judge Stephen Williams has provided an excellent description of some of the Hayekian advantages of international competition. Here I discus how sound legal policy can protect and intensify such competition. First, I want to suggest a few more points about the virtues of international competition.

1. Military Competition. As war has demanded ever better financing and technology, the connection between the flourishing of a nation’s citizens and its success in war has increased. Great Britain beat the continental powers in the eighteenth and nineteenth centuries in no small measure because her limited and democratic government gave lenders confidence that they would be repaid. As a result of the greater capacity to borrow Britain was able to muster greater military force in a crisis.

Today technological progress and military might are ever more connected: the robots conceived today will be the soldiers of tomorrow. The United States’ technological superiority is intimately connected to its open society and an educational system that favors creativity over rote learning. Authoritarian nations are at some disadvantage in replicating the decentralized structures that promote rapid technological progress.

This advantage for the West and the United States should make us wary of entering into agreements to limit the deployment of technologically advanced weapons like drones.

2. Competition from In-Migration of Firms and Individuals. The capacity of the United States to attract immigrants shows the relative power of its social norms. Indeed, its growth from a  relatively small nation of a few million people at the founding to the third most populous nation of the world is the most persuasive evidence of its greatness.

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Reconciling “Inalienable Rights” and Government by Consent

An article in the New York Times yesterday discussed a new controversy about the Declaration of Independence—whether there is period after “life, liberty, and pursuit of happiness.” Any controversy that encourages more people to focus on the Declaration and recall our past is most welcome. Nevertheless, I do not believe that the resolution of this debate would fundamentally change the Declaration’s important understanding of the relation between liberty and government. However the document is punctuated, I see three important propositions of political theory implicit in its majestic words:

1. Government is limited to securing “inalienable rights.” Thus, government while necessary is limited by reference to the rights it protects.  It is a servant, not a master of citizens.

2. These inalienable rights are largely negative rights and the procedural mechanisms of justice to assure them.

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Hobby Lobby, the Culture Wars, and Big Government

Perhaps never in the history of the Supreme Court has a case of such limited practical significance generated as much press attention and hyperbole as has Hobby Lobby.  Hillary Clinton is the latest politician to try to make inflammatory use of it: just yesterday she stated that it was step toward the kind of anti-women policies seen in extremist and undemocratic societies.

The case has captured attention for three reasons. First, it lies on the fault line of our culture wars, pitting the religiously oriented Hobby Lobby against the secularly oriented Obama administration. Second, its actual legal issues are very complex and inaccessible to the non-lawyer public, thus permitting politicians like Clinton to use it for their own ends. Finally, it provides catnip to reporters and pundits because it concerns contraception: sex helps sell the news as surely as it does other products.

Yet the case is of limited practical importance for no less than four reasons. First, it interprets the Religious Freedom Restoration Act, not the Constitution. Congress could change the result tomorrow, if it chose. To be sure,  a law on the books benefits from inertia and a divided Congress is unlikely to amend RFRA soon on this matter. But its failure to do so shows that the Supreme Court’s decision is not wildly out of step with popular sentiment as sometimes are its constitutional decisions, which are far more difficult to amend. So much for Hobby Lobby being a step to undemocratic extremism. And going forward, Congress can exempt future legislation from RFRA’s strictures to the extent it wishes.

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