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.

America’s Class Divide: Scribes v. Producers

The most comprehensive study of the ideology in the legal profession ever has just been published. It confirms what most people have already intuited: lawyers as a whole lean strongly to the left. Within the profession, a few characteristics predict that a lawyer will be even farther left than the median. Females and government attorneys are even more liberal, and no category is farther to the left than law professors. So much for diversity in legal education.

But what is most interesting about the study was its comparison of the ideology of lawyers with that of other key professions. Academics as a whole are substantially more left-wing than lawyers, and journalists in the print media are even slightly more left-wing than academics. Thus, we now know that there is a shared ideology of what we might call the scribal class – those who seek to alter the world by their use of information and rhetoric.

This scribal class wields enormous political power.

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The Iran Deal and the Weakness of Multilateralism

The Obama administration’s best argument for the Iran nuclear deal is also an argument against its general enthusiasm for multilateralism in preserving the international order. If a deal with Iran were not struck soon, it is indeed quite possible that the coalition imposing sanctions on Iran would unravel. And there is no chance that this coalition will ratchet sanctions up to put more pressure on Iran. The coalition may be fraying even more quickly now, as Russia and China fall into financial distress and become more eager to export goods to Iran. Russia in particular supported Iran in its demand to have restrictions on development of ballistic missiles lifted.  No prizes for guessing what nation is likely to make money off deals with Iran in that area.

But this line of analysis is also a demonstration of the inherent weakness of international coalitions as an instrument of foreign policy. Nations may come together to purse a joint program, when their interests coincide. But the world is a turbulent place and interests change. And unlike domestic contracts, long term agreements among nations are difficult to police and enforce.

That is the reason that United States would do well to maintain the force and will to act alone.

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More American Exceptionalism: Less Dangerous Populists

In both parties’ primaries a real populist is running, the kind of person many of the Framers would have called a demagogue. On the Republican side, the billionaire says we can deport all illegal immigrants and he will persuade Mexico to give the money to build a fence.  Although he proclaims himself a conservative, his most substantial complaint about big government appears to be that he is not running it.

On the Democratic side, a self-proclaimed socialist argues that the problem with government is that it is not even bigger. He wants to sharply raise taxes and provide more government jobs. He also wants to criminalize all kinds of voluntary acts, from choosing to work at mutually agreeable wages to trading goods and services with foreigners, including those for whom that trade may mean the difference between subsistence and penury. This tribune of equality would ground down the truly destitute of the world.  And, sadly, both these candidates are riding pretty high in the polls.

But these candidacies actually show the relative health of the United States compared to the most comparable democracies—those in Europe. Our populists of right and left are less bad then their populists, less likely to win power, and even in power less likely to do permanent damage.

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In Defense of Scalia’s Style

Justice Antonin Scalia is criticized these days ostensibly not for the substance but for the style of his opinions. His writing is said to be disrespectful as when he critiques the Justice Kennedy’s opinion in Obergefell, the recent case on same-sex marriage. There he stated: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag.”  He also noted: “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

I cannot join in the criticism of his style. That is not to say I particularly warm to the all rhetoric of his dissent in Obergefell.  It is not as powerful as that of his masterpiece in Casey, which also had harsh passages, but his disdain has a point.   The value of an opinion is measured by the coherence of its reasoning. If someone’s opinion is as unreasoned as Kennedy vapidities about identity, it is worth pointing out with some virulence.  What John Hart Ely famously said of Roe is true of Obergefell: it is not constitutional law and gives almost no sense of an obligation to try to be.

If Scalia believes (and I think he has reason to believe) that the many of the justices joining in Kennedy’s opinion were doing so for its result not for its reasons, they are not acting judicially.  Ridicule in defense of the rule of law is no vice.

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The Liberty to Work under Tough Bosses

The New York Times has recently portrayed Amazon as a workplace somewhere between the first circle of hell and a bad section of purgatory, with harsh supervisors and backbiting colleagues that are the inevitable consequence of the company’s management practices. I did not need Jeff Bezos’s demurral to doubt the accuracy of portrait. In a company this large, there will always be bad supervisors, intriguing colleagues and disgruntled employees that can support a lot of wild anecdotes. And the New York Times, a newspaper that even a former ombudsman has admitted is on the left, has an agenda of attacking business the better to justify an intrusive state.

But let us suppose for moment that the Times portrait is more accurate than Bezos’s denial that overall these anecdotes capture the reality of the company.  Is it really any cause for concern? The employees chose to work there and can leave at any time: it is not a case of indentured servitude. The white collar jobs portrayed here pay good wages. And most important of all, we have a competitive labor market that serves the needs of employees and consumers alike. Even the Times’ description shows that many employees find the culture empowering and thrilling. Some employees stay for a long period. Others use the skills they learn to start their own businesses. It may well make perfect sense for some people to endure upfront unpleasantness—even of the kind that leads to occasional tears—to gain discipline and knowledge that will later stand them in good stead.

And the result is excellent for consumers. I am sure I am not alone in finding Amazon to be the emporium of dreams.

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Bitcoin: A Hedge Against Bad Government

Bitcoin began as algorithm that created a token of no intrinsic value. But in a few short years it has become a hot commodity, trading now for about 250 dollars for each coin.  Nevertheless it does not yet constitute an effective currency.  It is still too volatile to be a reliable store of value.  Moreover, while 13 million people have used Bitcoins, far fewer use it on a consistent basis.  And the total value of Bitcoin is about 3 billion dollars—a fraction of the worth of many companies.

But Bitcoin has room to grow and become a currency. Of greatest aid to Bitcoin is the failure of governments. Already, Bitcoin is a household word in Argentina, where the government maintains an official exchange rate at substantial variance with real exchange rates. Bitcoin allows people to evade these controls by making their purchases via Bitcoin. If economic crisis leads other nations, like Brazil and Russia, to take such illiberal action, which is all too possible, Bitcoin will ride higher and begin to look more like a currency. And even after the crises subside, Bitcoin may well remain in use in such nations because of a distributed trust that does not depend on government and its relatively low transaction costs.

More generally, the less stable are national currencies, the more currency controls are imposed by government, the more inefficient are regulations of payment systems, the more attractive Bitcoin becomes. In short, Bitcoin  thrives as a  hedge against bad governance of one kind or another.

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Bitcoin: A Study in Spontaneous Order

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Nathaniel Popper’s Digital Gold is a wonderfully researched, fast paced narrative of the beginnings of Bitcoin.  As its subtitle, The Inside Story of the Misfits and Millionaires Trying to Reinvent Money, suggests, its emphasis is on the colorful cast of characters who got Bitcoin off the ground. In my last post, I described the mechanics of Bitcoin—a potential instrument of freedom from the state. In this post, I describe how the development of Bitcoin itself exemplifies another aspect of liberty– spontaneous order. Different individuals with different interests combine in ways no central planner could direct to transform an idea into a valuable commodity that may someday represent a sufficiently stable source of value to become a currency. It is the story of a Platonic form becoming a reality in the messy cave that is our world.

Bitcoin has no intrinsic value whatsoever. It began as an algorithm that generates tokens in cyberspace. Popper shows that in 2009 and 2010 computer geeks were the first group to take an interest. They mined coins and provided the computer power to verify transactions because they admired the algorithm not because they want to make money. It is an appreciation of beauty that gives Bitcoin its start,

These transactions remained more akin to a game with monopoly money. But another group—people who wanted to engage in illicit transactions– did find an actual value, exploiting the anonymity of Bitcoin. 

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Bitcoin: A Technology of Law, A Technology of Liberty?

A currency has three important functions. It provides a medium for exchange, a measure for the cost of goods, and a store of value. It is one of the most important technologies ever invented and like all technologies might be improved. It is also a matter of intense public concern, because the power over money brings with it immense political power.

The computational revolution is bidding to transform our relation to money by replacing fiat money with a digital currency. Fiat money consists of token issued by the government, like the dollar. Its success depends on trust in the government to maintain the currency as a stable store of value. But governments face political temptations to debase the currency for political ends. Just ask people in Argentina how well the peso has operated as a store of value. Even the dollar has dramatically fallen in value, as in the inflation of the 1970s. Moreover, fiat currencies of today often impose substantial transactions costs in the process of exchange. Banks make substantial profits from these transactions.

Thus, a stable currency outside of the control of the state without substantial transaction costs might well both make the economy more efficient and limit the power of government. It could be a wonder of the modern world. That is the potential promise of a digital currency—a form of money that is created and exchanged in cyberspace. The most famous such currency is Bitcoin and Nathaniel Popper has written a superb book, Digital Gold, chronicling its birth and wild rise. In the next post, I will review the book, which has a cast of characters to rival the most improbable of picaresque novels.

But first a short and necessarily simplified summary of the complex mechanics of Bitcoin:

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The Judicial Power Permits only Interpretation, not Construction

Danger sign, warning background

The most import current debate in originalism is between those who believe that judiciary in the course of judicial review can engage only in interpretation and those who believe it can also fill in a  “construction zone” when the semantic meaning of a provision runs out. The latter originalists, such as Randy Barnett, Larry Solum and Jack Balkin, make a strong distinction between clear and unclear language in the Constitution. For clear language, judicial review can find a precise original semantic meaning for a provision and there is no need for the judge to consult anything but the semantic  meaning.  Unclear language, in contrast, creates a construction zone.  Within that zone,  the judge may appeal to materials other than its original meaning in the course of judicial review.

Mike Rappaport in a recent post poses an important question for the latter camp, wondering how they can really be acting as originalists when engaging in construction. Whatever their theoretical arguments about the necessity of construction, how can constructionists be claiming to deciding a matter based on the Constitution? As Mike lucidly puts it:

If the Constitution is defined as the original meaning of the words in the document – the standard definition of originalists – then the answer appears to be no: the judge who decides a matter in the construction zone is not deciding the matter based on the Constitution.  And if the judge is not deciding based on the Constitution, then his decision is not enforcing the supreme law of the land

Mike then notes that one possible response of those who believe in construction is to claim that the “judicial power” gives judges the authority to engage in construction. But in my recent paper, The Duty of Clarity, I show why the Constitution’s understanding of judicial power is inconsistent with construction. There I demonstrate that judicial review was thought to permit judges the authority not to follow a statute only if it were, in Alexander Hamilton’s words, in “irreconcilable variance” with the meaning of the Constitution.

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A Classical Liberal Constitution Welcomes Immigrants

Immigration of the right kind is a great benefit to a nation run under principles of liberty. If the immigrants obey our laws and work productively, they will add to the nation’s wealth.  If they assimilate to the nation’s creed of liberty under law, they strengthen its power throughout the world, because their  former compatriots take heed of their success and that example may encourage more liberty in their home nations. And not only do the citizens of the welcoming nation benefit, so also do immigrants. The value of their human capital rises as soon as they set foot in a nation of free markets and the rule of law.

The way to encourage citizens to embrace immigration from abroad is to have a constitution that limits welfare programs and precludes ethnic discrimination. Without such commitments, citizens may rationally worry that poor and even work-shy immigrants may come and eventually vote themselves higher levels of benefits, even at the expense of long-time citizens and their descendants. Without guarantees against discrimination, citizens may also worry that ethnic groups who still feel solidarity based on previous ties, will try to organize government benefits on the basis of ethnicity, impeding assimilation.

And now I can reveal that once there was a nation that had a constitution with the pre-commitments needed to facilitate a sound immigration policy. It was the United States after it had ratified the 14th Amendment. 

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