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 Death of Moore’s Law Will Not Kill off Computational Disruption

Exponential increases in computational power generate most of the rapid social change in our time. Some of the changes are largely good. The increase in amount and speed of information promotes the availability of more diverse and expert views on policy and politics. The rise of genomics and personalized medicine can lead to longer and  healthier lives. Even energy production, both of fossil fuels and the greener variety, is boosted by computational power. But computation is also the cause of domestic turbulence, as automation replaces some kinds of jobs, and of danger abroad, as it empowers the organization of non-state terrorist actors.

Moore’s law is thought to encapsulate ongoing computational improvements.  This law, named after Gordon Moore, one of the founders of Intel, is in a reality a prediction of a regularity, i.e. that the number of transistors that can be fitted onto a silicon computer chip doubles every eighteen months to two years.  This week Moore’s law reached  the age of fifty and there are widespread predictions and fears that it will die before sixty, because of the physical impossibility of shrinking transistors further and the expense of  trying to do so.

But the computational revolution has deeper and broader roots than Moore’s law and thus the rate of computational and social change will continue even after its demise and may indeed accelerate.   

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The New Architecture of Legal Education

The recent  architectural addition to Northwestern Law School where I teach – a lovely, three-floor, glass-clad space with high ceilings – reflects a new direction of legal education.  The first-floor has a café with fifty seats and a patio looking out on Lake Michigan. The next two floors are conducive to collaboration, consisting of study rooms and open spaces with comfortable chairs.   The only classroom in this section has no rows of seats or even a lectern but is instead full of tables and audiovisual screens, suitable for negotiation and problem solving even at long distance.

The new space emphasizes an increasingly important part of elite education generally—the opportunity to network with other highly skilled individuals. One can think of higher education as providing three distinct services: transferring information and skills,  signaling the quality of students to employers, providing professional networking opportunities for students.

Nothing better represents the decline of the first function than the plight of the university library.

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Is It Time to Sell Google?

Yesterday The European Union sued Google under its competition law. This lawsuit shows either that the European Union understands nothing about the way technological acceleration affects competition or that the EU is biased against American companies or both.

The complaint is that Google has monopoly power in search and that it abuses this power by favoring its own services, like its own travel reservation business, in  the links it provides to queries.   But with a few taps on a keyboard or a click of a mouse, consumers can easily switch from one search engine to another, casting doubt on the EU’s claim that Google has monopoly power.   More importantly, technological acceleration makes it very unlikely that Google could maintain an entrenched monopoly in search over the long haul.  As people spend more time on their smart phones and less time at their computer, Google’s form of search is increasingly displaced by apps.  Another threat to Google is Facebook, which uses the connections of its social network to customize search and advertisements.

The difficulty of maintaining entrenched monopoly in accelerating technologies is not unique to Google.

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Executive Power Should be an Important Issue in the Presidential Campaign

In his second term, President Obama has unilaterally pressed his agenda, now that he has lost the congressional support needed to enact his political priorities through legislation.  These uses or abuses of executive power include the suspension of deportation and granting of work permits for illegal aliens and various decisions to delay the effective date of certain provisions of Obamacare.  As a consequence of the President’s actions, the proper scope of executive authority should figure front and center in the coming presidential campaign.

In conducting this important debate over the nature of our republican order, we must demand that candidates separate out their policy positions from their position on the appropriate scope of executive power. Thus, it is perfectly possible to embrace the policy goals of the President’s executive order on immigration while objecting to its constitutional basis, and vice-versa.  Only by forcing candidates to answer the constitutional question can we have any confidence that they will stick to a consistently constitutional view of executive power.  After a change in partisan control of the Presidency, partisans in both parties have had a habit of waking up on election morning to find that Article II has acquired a new meaning.

In questioning candidates, it is also important to make a distinction between the unity of the executive and the scope of its power—issues that are often confused.

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Compensating Differentials Likely Temper Any Growth in Income Inequality

As a law professor, I earn a lot less than my law school classmates who graduated with similar records, and a small fraction of the income earned by those at the very top.  But I am compensated in other ways.  In the loveliest line of the wonderful song “If I Were a Rich Man,” from Fiddler on the Roof, Tevye says that the “sweetest thing of all” from becoming wealthy would be the leisure gained to “discuss the Holy Books with the learned men seven hours a day.” The secular equivalent is what I get paid to do.

My situation illustrates what economists call compensating differentials. I get less income from my job because I get more enjoyment than I would in a job requiring similar skills and education. Thus, as Tyler Cowen and Alex Tabarrock note in a recent video,  the market would pay a sewer inspector a lot more than a lifeguard even if it had to attract equally skilled job takers. Similarly, if a job creates risks of death, injury or ill health, it will have to pay more to workers to compensate.

This simple observation suggests that focusing only on earned income from employment can provide a misleading picture of  any growth in inequality.

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Foreign Law is Irrelevant to the Constitutionality of Same-Sex Marriage

In the same-sex marriage cases both sides have enlisted foreign law in support of their position. A group of scholars led by Harold Koh argues that the recent embrace of same-sex marriage in the law of other Western nations supports finding a right to same-sex marriage in our own Constitution. Another group of scholars, led by Lynn Wardle, observes that many more nations, including in some cases their judiciaries, have declined to interpret their guarantees of equality to mandate same-sex marriage.

Originalists must generally reject the evidence of contemporary foreign law in constitutional interpretation.  Such laws should not be used as authority or indeed given any weight in decision making  not because they are foreign or international, but because they are contemporary and in the ordinary case shed no light on the original understanding of the Constitution.

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Justice Breyer Needs an Originalist Law Clerk

breyer

McCutcheon v. FEC reveals fundamental differences between the Roberts Court majority and the dissenters about the First Amendment’s protection of political speech. The justices in the majority asserted the traditional view that the First Amendment is an individual right.   In contrast, Justice Breyer argues for the McCutcheon dissenters that the First Amendment is in part a “collective right,” and thus government interests in favor of campaign finance regulation are not “to be weighed against the constitutional right to political speech. Rather they are interests represented in the First Amendment itself.”  The latter view makes it much easier to upheld government restrictions that are targeted at resources to support speech at election time.

To support his view of the First Amendment as embodying a “collective right,” Breyer appeals to Founding-era statements that describe how speech connects a legislator with the sentiments of his constituents.  But the materials he cites undermine his claims. First, he purports to demonstrate that James Wilson believed that “the First Amendment would facilitate a ‘chain of communications between the people and those to whom they have committed the exercise of the powers of government,” by quoting a snippet from a lecture by Wilson on the Constitution.

But the quote from Wilson does not appear in a discussion of the First Amendment, as Justice Breyer states, but in a discussion of the novelty and virtue of representative government, as opposed to “monarchical, aristocratical, and democratical” forms of government. 

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Social Change Cuts in Favor of Protecting Religious Freedom

man showing fist to his big boss

How should social change affect how we think about laws on religious freedom?  On Sunday Governor Mike Pence defended his state’s religious freedom  law, noting that the President had voted for a similar law protecting religious freedom twenty years previously when he was an Illinois State Senator. Josh Earnest, the White House spokesman responded: “If you have to go back two decades to justify what you’re doing today, it may raise questions.” It is hard to come up with a more perfect encapsulation of the progressive mindset: even a two decades-old position carries no epistemic weight with the present.

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An Active, But not an Activist, Judiciary

The judiciary should strike down only laws that clearly violate the meaning of Constitution. For this reason, Jack Balkin’s project of Living Originalism is fundamentally flawed at least as to the judiciary, because he believes that judges have substantial discretion to construct the Constitution, even when the semantic meaning is not clear.  But it does not follow that the judiciary cannot vigorously discover and enforce the meaning of provisions that might seem indeterminate to a layperson.

Judges have many tools to clarify the meaning of provisions that may seem vague, opaque, or ambiguous. The Constitution was not created ex nihilo but against a background of legal methods that help make legal meanings more precise. To decline to deploy these legal methods is to discard a valuable portion of our traditional science of law. Judges are simultaneously empowered and constrained by these methods.

As I have argued, this view of judicial duty had overwhelming support in the founding era. For instance, James Iredell, one of the first Supreme Court Justices, affirmed that judges have a duty of clarity before invalidating legislation under a constitution, whether state of federal.  But he also made clear that judges use “every consideration” in forming a judgment as the meaning of the Constitution, even if this process proved “difficult.”

Justice Roberts provided an example of this process in NFIB v. Sebelius in his interpretation of the Commerce Clause. 

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The Most Influential Legal Organization

The Federalist Society is the most important civic organization formed in the last forty years. Even academics are coming around to the conclusion.  In 2010 Steve Teles wrote a marvelous book, The Rise of the Conservative Legal Movement, which rightly gave the Federalist Society pride of place as an organization that held the legal right together by providing a place to debate fundamental issues. As Teles observed, because the Society did not take positions in litigation or before legislatures, it was able to attract both libertarians and conservatives who were united both by their antipathy to left liberal establishment and their view that the Constitution should be read according to its original meaning rather than as a document that changed with the times.

In a new book, Ideas with Consequences, Amanda Hollis-Brusky attempts to chart the Federalist Society’s actual legal influence, particularly on the Supreme Court. I reviewed  the book Friday for the Wall Street Journal. While it is not as good a book as  that of Steve Teles, it does show how ideas refined at the Federalist Society conferences have made their way into Supreme Court opinions, in such areas as the Second Amendment, federalism, and campaign finance regulation.

Oddly enough in a book which has Ideas in its title, Hollis-Brusky at times slights the importance of the intellectual environment the Federalist Society has created.

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