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.

Elite Rather than Popular Opinion Influences the Court

For forty years, constitutional law has been dominated by the countermajoritarian difficulty—the concern about the capacity of the Court to flout the popular will. A strong version of this critique flows from the fear that the justices follow their own policy preferences in important cases, something that seems illegitimate since they are not elected. One response to the countermajoritarian difficulty is to dispute this premise and argue that actually the Court as a whole tends in relatively short order to follow the will of the popular majority. Barry Friedman’s The Will of the People is the most recent and articulate defense of this position.

But in an excellent article in the Georgetown Law Review, Neal Devins and Larry Baum show that Supreme Court justices respond at most indirectly and very imperfectly to the majority of citizens. They look at some of the evidence, comparing the Supreme Court decisions with popular opinion. They confirm what I had long suspected: the reason that law professors have been persuaded that the Court follows popular opinion is that they confuse the will of the majority of people with the will of the majority of law professors!

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Against Judicial Minimalism

At the beginning of this term of the Supreme Court, Cass Sunstein has praised judicial minimalism. Professor Sunstein argues that the justices should decide cases as narrowly as possible: “Minimalists . . .  insist on small steps and narrow, unambitious rulings. They want to resolve the specific problem at hand, but without pronouncing broadly on liberty or equality, or on the system of checks and balances.”

So described, minimalism is the antithesis of a principled jurisprudence. First, minimalism does not offer a method for discerning the Constitution’s meaning. One does not need to be an originalist who believes that the meaning of the Constitution is fixed at the time it was enacted to recognize that an interpretive theory has to give account of how it is following the meaning of the Constitution. It is that meaning which should govern the case, and the relevant principles may be either broad or narrow depending on the meaning. For instance, if one follows the original meaning that the term “session” in the Recess Appointments Clause is limited to the intersession of Congress, the holding will necessarily rule out recess appointments in all cases but appointments made at the intersession.

Second, minimalism is incompatible with the rule of law. Deciding cases based on their peculiar facts gives little guidance to citizens as to what their rights and obligations are. Indeed, the reductio ad absurdum of minimalism is to decide the case of A v. B for A or B without giving any reasons at all: that approach surely resolves the case by making as little law as possible!

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Reducing the Power of Paramilitary Unions is a Civil Rights Issue

The Department of Corrections in New York State has tried to fire many prison guards for unjustified force against inmates. They are generally unsuccessful because of the union contract. It gives substantial job protection rights to the correction officers, including the right to arbitration. Arbitration rarely results in dismissal because unions have a hand in picking the arbitrators.

The inability to dismiss bad apples in turn creates a culture of impunity. The inattention of numerous guards permitted two notorious murders to tunnel out of an upstate New York State prison. Two prison employees actively aided their escape. The result was not only millions of dollars in costs to New York State, but nights of terror for nearby residents with natural born killers on the loose. And then the guards brutalized inmates with no connection to the escape in a search for scapegoats to cover up their own misfeasance.

Reducing the power of public unions in paramilitary forces, like correction officers and the police force, is one of the great civil rights issues of our time.

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Don’t Further Politicize the Court

Rick Hasen has called for making Supreme Court appointments  an important part of 2016 political campaign. What is distinctive about his argument is that he drops all pretense of appointing justices based on their jurisprudence or methods of legal analysis. He just wants a series of left-liberal results that he characterizes as civil right decisions, although some of these results, like overruling Citizens United, actually take away civil rights exercised against the majority. He wants to further politicize the Court.  He is kind enough to quote me as arguing for depoliticization: The Court should act apolitically by applying the same formal methods in highly contested constitutional cases that it does in garden variety cases, such as the bankruptcy code.

Hasen dismisses this possibility and in particular the most important tool for doing so– originalism. But his arguments are very weak. He observes that at times Scalia and Thomas—both originalists—disagree. But of course no methodology eliminates all disagreement, even if  it depoliticizes that disagreement by forcing justices to look at the empirical facts rather than to their preferences. And in any event Scalia and Thomas have some of the highest rates of agreement of any two justices on the Court.

Hasen also argues that terms like equal protection are sufficiently vague to permit alternative legitimate methods of giving effect to the Constitution.  But he makes no effort to legitimate or even describe these methods other than to argue that they can help achieve what he views as good political results.

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The Association of American Law Schools Needs More Political Diversity


In the week that a new organization, Heterodox Academy, was established to press for more ideological diversity in academic life, the learned association in my own profession showed how much it is needed. The Association of American Law Schools (AALS) sent around a notice of its prospective annual meeting, highlighting its most prominent speakers. Of the thirteen announced, none is associated predominantly with the Republican party, but eleven are associated with the Democratic Party. Many are prominent liberals. None is a conservative or libertarian.

Five are judges, including Stephen Breyer, all appointed by Democrats. Another is the incoming Senate leader of the Democrats. Three others contributed predominantly to Democrats. One for whom no contributions could be found held a fund raiser for President Obama. Another worked for the Democratic side of the House Judiciary Committee during the impeachment of President Clinton.

It is true that Michael Bloomberg is also speaking. He has been at various points a Democratic and a Republican and is now an independent. Perhaps the AALS thought that a single person could create diversity through his many political avatars! But seriously, Bloomberg, who has crusaded for gun control and limitations on permissible ounces in a sugary soda, does not resemble a conservative or libertarian. He ran as a Republican in 2001 for Mayor of New York City because it was the nomination he could acquire.

Now my point is not to disparage the highlighted speakers. They are all eminent men and women.

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Advancing Heterodoxy

It is hard to exaggerate how homogeneous are political views in the academic world. Law professors are the most liberal category among all lawyers who are themselves quite liberal. Many precincts within the university are even further left than the legal academy. But this nation is founded on the premise that the clash of views leads to better ideas and better policy. The ideologically monochromatic cast of our academic world should thus be of concern to many, regardless of their political perspective. That is why I am so pleased that a new organization, The Heterodox Academy, has been established to try to bring in a fuller representation of a wider range of views.

As Jonathan Haidt, one of the leading professors of social psychology, said in his welcoming post:

At HeterodoxAcademy, our contributors have documented the near absence of political diversity in many fields, and we have demonstrated the damaging effects that this homogeneity has on scholarship in those fields. We are not the first to do so. Scholars have been calling to this problem for decades… and nothing has been done.

This time will be different. We have come together to pool resources, analyze current trends in the academy, discuss possible solutions, and advocate for policies and systemic changes that will increase viewpoint diversity in the academy and therefore improve the quality of work that the academy makes available to the public, and to policymakers.

Members of this venture include well-known academics, like Professor Haidt and Steven Pinker as well as more obscure ones like this writer.

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Welcoming More Syrian Refugees Is Good for America

The Obama administration has made the right decision to raise the cap on the number of refugees so as to take in more Syrians seeking to escape the genocidal conflict in their country. It is not only an appropriate humanitarian action, but it will be good for the United States in the long run, just as our reception of Cuban refugees brought us an enormously successful, entrepreneurial group of Americans.

Immigration policy is a tricky matter to get right for classical liberals, particularly today. While some libertarians support open borders, that policy would be unwise.  If tens of millions of people arrived who were unschooled in our democratic traditions and relatively uneducated, they might undermine the very conditions for liberty that make our nation so attractive to immigrants. They would surely cause a huge backlash.  And unfortunately today, our welfare state can encourage immigration by those would not be productive citizens. A classical liberal constitution would permit us to entertain a more open immigration policy.

But these concerns do not at all undermine the case for taking in more Syrians. Even if we took in a few hundred thousand Syrians, they will not change our political culture. Indeed, given the relatively small numbers, they are likely to change the culture less than did immigration from Latin America or previous waves of immigration. Moreover, these immigrants have reasons to come that are not economic: there is no reason to think they are here to seek welfare benefits. And like Cuban refugees, the Syrian refuges are by no means largely without human capital. Middle-class people with substantial skills have had every reason to flee.

While the Obama administration can lift the cap, Congress will need to provide more money to get these refugees settled.

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In Praise of John Roberts and His Reformulation of Political Questions

I am less critical of Chief Justice John Roberts than many other conservatives and libertarians. I do disagree with some of his decisions, as I disagree with some decisions by every justice, but there are far more that I agree with than disagree. When there is no clear precedent on the subject, like the recent recess appointment case, he generally goes with the original meaning. And even when there is lot of precedent he often slaloms with the skill of a gold medalist through the precedents to move the law toward the original meaning. See Free Enterprise v. Public Company Accounting Oversight Board.

One’s evaluation of John Roberts’ performance may depend on how one prioritizes cases. While I disagreed with King v. Burwell, I do not think a contrary outcome would have had real-world effects, as Republicans in Congress would have caved on subsides. In contrast, on the most important constitutional issue of our time—resisting the attempt to tamp down on speech during elections—he has been the leader on the Court. He has applied neutral principles found elsewhere in First Amendment law to permit ordinary citizens to spend as much as they like to get out their views at election time, just like the media. He has given corporations the right to speak at election time, just as they do in other First Amendment contexts. He has rebuffed Justice Stephen Breyer’s dreadful idea that the Court should defer to Congress on such issues, which would turn the First Amendment from a charter of liberty into a delegation to self-interested regulators. The fate of our republic may rest on whether our representatives should be given the power to determine how opinion is shaped and he has been splendidly on the side of constitutional liberty in the most important of the cases about campaigns and speech.

But my main purpose in this post is to praise his treatment of the political question doctrine in Zivotofksy v. Kerry. He took a doctrine that was a mess and turned it into law rooted in the original meaning of the Constitution’s text.

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The Candidate of Coercive Democracy

Donald Trump is not the most usual candidate in this campaign season. That distinction belongs to Lawrence Lessig, a professor at Harvard Law School and now a candidate for the Democratic Party’s nomination.  It is unusual for a professor to choose the Presidency as his starter office and doubly so when he is running on a single issue—reform of the electoral system. Perhaps triply so, when he promises to resign immediately after getting his reforms enacted.

While I admire citizens of accomplishment who are willing to put themselves forward,  some of Lessig’s core ideas pose a threat to free speech and indeed to liberal democracy itself.   In his book, Republic Lost, Professor Lessig argues that the Framers believed that elections should make the government dependent upon the people alone. That dependence, according to Lessig, was the basic principle of republican government at the time.  As result, Congress can legitimately regulate campaign expenditures to prevent “the distortion” that would occur from permitting legislators from becoming dependent on those who make campaign contributions or expend large sums of money on elections.

Lessig tries to use the rhetoric of republican government to recast the equality argument  against permitting citizens to spend independently on campaigns or make substantial contributions to candidates.  These interventions, according to this argument, make some citizens more politically influential than others.  But Lessig’s focus on dependence demonstrates why an equality argument cannot be rooted in the original Constitution.

The Constitution emphatically does not provide any measure for deciding how public opinion becomes “distorted.”  The constitutional dependence of representatives does not come from their being in sync with the opinions of their constituents on any set of issues but on their getting the most votes at periodic elections.  

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A Classical Liberal State Spends for Public Goods, Not Free Lunches

In the coming weeks Washington faces another budget showdown between Democrats and Republicans in Congress and then between Congress and the President. Sadly, whoever wins or whatever compromise is struck, the federal budget will remain not only bloated but grotesquely misshapen.

The reason is that the debate concerns only cutting discretionary spending, not reforming entitlements. Yet entitlements are the primary drivers of ever increasing spending.  In contrast, discretionary spending can generate public goods that aid long-term prosperity.  An economist would define the essence of a public good as one from which individuals cannot be excluded and where the use of the good by one individual does not prevent use by another.

National defense is the paradigm case of a public good.  Scientific knowledge is another. Given that such goods provide benefits which for which the provider cannot receive remuneration, they will be undersupplied. And some kinds of infrastructure goods with lots of positive spillovers also are likely to be undersupplied, even if they do not quite meet the definition of a public good. The primary fiscal focus of the classical liberal state should be on the creation of such goods, because neither the family nor the market will do so in sufficient quantity.

Not all federal discretionary spending supports these kinds of goods, but a good deal does. For instance, spending for the NIH is declining, despite very substantial evidence that it pays off in longer and better life for citizens.

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