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 Cuomo Pink Slip and the Cuomo Tax

I cannot remember a time when New York’s Governor and New York City’s Mayor taken together pose a greater threat to the liberty and prosperity.  Last week each proposed a dreadful policy. Governor Andrew Cuomo succeeded and Mayor Bill de Blasio failed. The different outcomes tell us a lot about what makes some statist proposals more likely to take effect and how to resist them.

Cuomo got his Labor Board to hike the minimum wage to fifteen dollars an hour for fast food workers throughout the state. I will not repeat my general arguments against substantial minimum wage hikes. But even advocates of minimum wage concede that such sector specific wages will distort the labor market and create a less efficient mix of businesses.  Moreover, any law that requires paying someone at McDonald’s in Troy, New York fifteen dollars an hour while someone working in Home Depot in New York City nine dollars is patently irrational given the wildly different average wages and cost of living in the city and upstate.

For his part de Blasio proposed capping the growth of Uber in New York City ostensibly because the extra cars on the road were causing congestion, but in large measure because the taxi companies are some of his biggest supporters. Even if New York streets were becoming more congested it is not economically rational to single out Uber. There is no reason to believe that the customers they serve are getting less benefit from driving around New York than those who drive themselves.

What is interesting, however, is that City Council shelved this proposal.

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Demand a Politics of Innovation

2016 is shaping up as an election in which one of our parties will emphasize the need for growth and the other will call for greater economic equality. These concepts are often seen in substantial tension with one another. In my view, however, if the government encourages innovation we can have both growth and greater equality in the relatively short run.

As I wrote in yesterday’s Washington Times for the celebration of Liberty Month:

In this age of accelerating technology, there is no more important policy than to encourage innovation. Innovation is the primary source of economic growth. New innovative businesses, like Google and Uber, transform our lives for the better. And innovation builds on innovation, compounding growth from generation to generation. As the Nobel Prize winning economist Bob Lucas once said: “Once one thinks about exponential growth, it is hard to think about anything else.”

Innovation in the modern era also tends to make us more equal. Innovation creates a stream of new ideas that are rapidly enjoyed by the great mass of people. Material goods are scarce, because individuals can by and large not enjoy the same material simultaneously. But ideas can be enjoyed by all. To be sure, some innovations are patented, but these patents expire. And, as better innovations come along, the old patents rapidly become less valuable. That is one reason that smart phones have so rapidly become available to people of modest means. Thus, the greater the supply of innovations, the great the common pool from which almost everyone can benefit quite rapidly.

We thus need to ask all Presidential candidates what they will do to promote innovation.

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School Vouchers are a Victory for Liberty

The last hundred years have witnessed a great struggle between state control and more libertarian forms of social ordering. Now that socialism—the hard-edged way of state control—has been largely discredited, a softer edged way—government control over primary and secondary education—is perhaps the most important fault line in this battle.

Thus, it is very welcome news that in Hart v. State the North Carolina Supreme Court last week upheld a school voucher program. The plan would provide $4,200 to parents with income at 133 percent or below the poverty line to send their children to a private school of their choice. The case turned on the state rather than the federal constitution, because happily the Supreme Court has already upheld school vouchers against an Establishment Clause challenge.

I am not an expert in North Carolina constitutional law, but one argument in particular interested me. The dissenters in the case contended that the voucher program did not serve only public purposes, because the private schools did not have to comply with government standards to assure that students “would participate and compete in society” by receiving a sound education. The legislation did require that schools receiving vouchers require attendance, meet certain health and safety standards, and provide periodic standardized testing.  But these requirements were not enough for the dissent.

What was remarkable in my view was that the dissenters dismissed the capacity of  parental choice to promote education accountability and indeed excellence.

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Antitrust versus Market Dynamism

Businessman jumps the obstacle

Antitrust regulation of monopolies and mergers is largely a second-best policy. In a nation open to trade with well functioning capital markets and without regulations that burden incumbents and exclude entrants, monopoly prices are hard to sustain. Like a dinner bell, they are instead a signal to others to come and get some juicy profits. These profits not only encourage existing firms to expand their operations but also entice entrepreneurial individuals to enter these markets. But if regulations make markets less dynamic, the price mechanism won’t work nearly as well. Regulations can make it harder for new firms to enter and for incumbent firms to expand.

In applying its merger policy, the Justice Department should take more account of the relevance of economic dynamism — or the incentives to enter and exit markets — and thus of the regulatory landscape companies face. While I am not privy to all the details, two recent cases make me doubtful that it is doing so. In one, DOJ approved the merger of American and US Airways, and in the other, it sued to prevent Swedish- owned Electrolux’s proposed takeover of GE’s electric appliance business. But the airline merger took place in a marketplace burdened with regulations that make competition sluggish, while there seem to be few regulatory barriers to vigorous competition in the appliance market.

The obstacles imposed by government to competition from both new entrants and established players in the airline market are manifold.

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Ivy Honors and the Justices

Honorary degrees are the highest symbol of recognition that universities can bestow. And the Ivy League retains the greatest reputation for excellence in American higher education. Thus, it is of more than a little interest that these institutions find excellence overwhelmingly in justices on the left of the judiciary.

Of the fourteen honorary degrees bestowed by Ivy League institutions to living Supreme Court justices twelve went to those on the left of the Court. Justice Ginsburg is the champ: she has an honorary degree from every Ivy League university except Cornell and Cornell does not award honorary degrees. And she is by some political science measures the farthest to the left on the Court. Justice Sonia Sotomayor has two such degrees (Princeton, Yale) and Stephen Breyer, John Paul Stevens and David Souter have one each (Penn, Princeton, and Harvard respectively). While I am not knowledgeable about all foreign judges, the two I did recognize from the Ivy lists, getting two honorary degrees each, were Albie Sachs of South Africa and Aharon Barak of Israel—two of the most famous left-leaning jurists from abroad. Indeed, some of Barak’s opinions make those of William O. Douglas seem modest and lawful.

Against all this celebration of left-liberalism, Brown and Yale did give honorary degrees to Sandra Day O’Connor, the swing justice of her day and a moderate conservative. But no Ivy League University has ever awarded such a degree to anyone sitting now on the right of the Court. What makes this performance even more obviously ideologically driven is that these academic institutions have neglected the one who has had the most academic influence—Antonin Scalia.

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Creating a More Decentralized and Market Driven Democracy

accel

Princeton University Press had just published a new paperback edition of my book, Accelerating Democracy: Transforming Governance Through Technology.  It argues for using the tools given by our new computational technology to help democracy adapt to our accelerating rate of social change.

The basic insight of the book should be congenial to friends of the classical liberal tradition in political thought. It is to deploy decentralized mechanisms that modern technology makes possible to improve self-government. For instance, the internet greatly facilitates betting pools, called information or prediction markets, which permit people to bet on the occurrence of future events. Such markets already gauge election results more accurately than polls. If legalized and modestly subsidized, they could also foretell many policy results better than politicians or experts alone. We could then better predict the consequences of changes in educational policy on educational outcomes or a stimulus program on economic growth. In short, such markets would provide a visible hand to help guide policy results. Unfortunately, while such markets are a public good, our government now impedes them at every turn.

The internet today also encourages dispersed media like blogs to intensify confrontations about contending policy claims.

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How to Hold a Legislative Leader Accountable

I live in Illinois, the worst governed state of the union. And the consequences have been severe. Our fiscal position is the last in the union and we are at the bottom for ease of doing business. Thus, in the current state of taxation and regulation, there is no prospect of climbing out of the fiscal hole. And unless there is radical reform, Illinois is in terminal decline. It does not have California’s climate or New York’s Stock Exchange to break its fall.

There is bipartisan blame to go around. Governors of both parties for decades have been willing to sign legislation to provide unfunded pensions whose bills would come due when they were safely in retirement. Politicians of both parties have all declined to take on public sector unions and other special interest groups that have made the state uncompetitive. But even if fault must be laid at the door of both Democrats and Republicans, there has been one man who has been the power in Illinois politics for three decades and thus must be held most accountable—Michael Madigan, the Democratic speaker of the House for all but two years since 1983.

The accumulation of immense power in one legislative leader is a practical problem for democratic accountability in  a system of separation of powers.

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The Continuing March of AI Through Law

Last month I had the pleasure of presenting a paper at the International Conference on Artificial Intelligence and Law. It was fifteenth such conference held every two years.   Artificial Intelligence and Law thus is a discipline that is already thirty years old. Because of the exponential increase in computation (doubling in power about every 18 months), the theoretical advances made over the years at such conferences are now yielding practical results.

In this initial post, let me mention the most interesting practical application of AI to law at the conference– A Legal Citation Recommendation Engine. This program embeds a research mechanism within Microsoft Word. As a lawyer types his or her brief or memo, the program suggests case law and other material relevant to its arguments. Thus, the program acts as real-time, imbedded virtual legal research assistant.

The inventors of the product hope to distribute a prototype by next year. The program seems relatively rudimentary now. But at their beginning speech-to-text programs were also rudimentary and made many errors in transcription even when I used my PC and an excellent microphone. Now I use such programs to dictate all e-mails into my smart phone even with ambient noise.

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The Euro Crisis and the Return of Culture

I well remember being almost persuaded by Francis Fukuyama’s wonderfully argued The End of History and the Last Man. The book suggested that the West and perhaps the world had reached an endpoint where democracies constrained by the rule of law and powered by market economies would dominate. If so, the future looked happy. The synthesis of the principles of democracy and economic liberty would lead to a peaceful prosperity where the chief excitement might come from the relentless doubling of computer power.

At least so far, however, The End of History has collided with history. Much of the Islamic world has not gotten the message. To be sure,  the fall of the Soviet Union has led to many ex-communist states with an admirable commitment to law and the kind of economics that gains long-term prosperity.   But there remains Russia, where democracy seems incapable of sustaining a loyal opposition, the state looms as leviathan, and the economy has large elements of a kleptocracy. Readers of Russian history should not be surprised. Richard Pipes has long argued that since the 15th century, Russian culture has been marked by disdain for rights of property and an enthusiasm for a patrimonial regime with little separation between state and economic and civic society.

But nothing better represents the failure of Fukuyama’s thesis than plight of Euro and the Greek crisis. The Euro was the monetary representation of history’s end in the birthplace of the West.

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Progressivism, Purposivism, and Historical Contingency

For its lay audience City Journal asked me to explain the King v. Burwell decision, which permitted federal exchanges under the Affordable Care Act to receive subsidies. Within its brief compass, I made two points.

First, I suggested, contrary to some conservative commentators, that the majority opinion did not demonstrate that Chief Justice Roberts was unprincipled but that instead the decision followed from a principled purposivist theory of statutory interpretation. I showed why the theory was wrong: like Mike Rappaport, I believe the meaning of the provision was clear and neither purposivist nor intentionalist interpretation should be allowed to defeat a clear meaning. This analysis of Roberts’ opinion comports with my more general view that four justices labeled conservatives are often fractured, because they are more legalists than ideologues, whose different interpretive methods lead to different results that are sound under their principles even when the principles are unsound.

Second, I noted that the effects of purposive interpretation are generally friendly to progressivism because it allows judges to choose overriding purposes that advance progressive goals that were not written into law. But let me be clear that any aid that purposivism gives to progressivism is not a reason to reject purposivism, just an effect of that interpretive method.

Here is an analogy.

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