John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor 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.

Graduate Student Unions Undermine the Ideal of a University

Fall College Campus. University student dorm with autumn leaves

It is hard to suppress schadenfreude about the recent ruling of the National Labor Relations Board giving graduate students the right to organize labor unions.  Elite universities are united in their opposition, but these same institutions are dominated by left-liberals who want to expand the reach of unions in businesses. Most of their professors approve of increased regulation on everyone but themselves. The NLRB is giving them a taste of their own medicine.

Universities are in fact a much more hierarchical world than most businesses with a vast gulf in compensation, prestige, and autonomy between tenured professors and everyone else.   If critical university theorists were as much in vogue as critical race theorists and radical feminists, we would be treated to endless papers on the oppression of university hierarchies. But for some reason universities don’t produce such advanced thinkers.

Nevertheless, given the baleful effects of this ruling, we should contain our glee.  First, the university is not the factory floor, and graduate students are essentially students, not employees. Teachers are mentors of students, not their bosses.

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Admit More Talented Immigrants

Immigration offers many potential advantages both for immigrants and for United States citizens.  Many immigrants increase their human capital just by coming to our shores, because our superior laws allow them to earn more and retain more of what they earn. Many also gain more opportunities for collaboration with our highly educated work force. Still others escape from oppression and benefit from the freedom to practice their religion and avoid forms of state sponsored, invidious discrimination.

Our citizens gain advantages from immigration as well because most immigrants contribute to greater economic growth and many become forces for innovation.  Welcoming people who choose to embrace our ideals can at its best also help renew the American project.  Nevertheless, immigration can impose some costs, both to particular citizens and to the nation as a whole. Here are four categories of costs, two of which have grown with the decline of limited government and of our own confidence in American exceptionalism.

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A Campaign for a Seamless Rule of Law

Justice Statue

In this year’s presidential campaign, it would be a wonderful contribution to the republic and perhaps a winning move to run credibly on a rule of law platform. This kind of platform is to be distinguished from a “law and order” one, because it emphasizes that in a well-ordered republic that government must enforce order only through law.  And this slogan also underscores that the problem we face is not simply or indeed mainly lawlessness on the streets, but lawlessness in government. Respect for law must begin at the top.

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The Constitution Constrains Rent-Seeking Without Eliminating Politics

Greg Weiner, in a characteristically thoughtful post, suggests that libertarian constitutionalism wrongly eliminates democratic politics from the polity in favor creating a republic of reason where rationality is judicially determined. While I am not a libertarian, but a classical liberal, I think that the correct reading of the U.S. Constitution does impose important constraints on the politics of rent-seeking. But it does not suppress politics so much as redirect it.

Professor Weiner correctly observes that many libertarians want to use the Constitution to prevent rent-seeking. The provision commonly referenced for this purpose is the Fourteenth Amendment. Note first, however, that the Fourteenth Amendment’s provisions apply only to the states. Thus, under a proper reading of our Constitution, the federal government may countenance rent-seeking within the scope of its enumerated powers. The difference between the strictures on states and on the nation may comport with the greater confidence that the extended republic will not be dominated by particular factions.

Moreover, at least under the appropriate reading of the Fourteenth Amendment, the restrictions on state legislation are relatively modest.

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The Wonders of Consumer Welfare: An E-Reader Story

OLYMPUS DIGITAL CAMERA

In these days when capitalism is under renewed attack and appears particularly unpopular among many of the young, defenders of classical liberalism need to tell stories as well as recite statistics.  One of the great fables of capitalism in general and free trade in particular is I, Pencil. This short essay shows how markets create a delusively simple implement only by facilitating  complex cooperation among far flung peoples. It is also important to dramatize the wonder of consumer surplus, showing how goods give more value to most consumers than the amount they pay.   Economists rightly stress that consumer surplus tends to…

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Standards v. Diversity in Law School Accreditation

The ABA has generated a revealing debate between those who want to strengthen law schools’ accreditation standards and advocates of diversity. Given the many recent stories about law students burdened by huge debt and yet unable to pass the bar, the ABA is considering requiring law schools to get 75 percent of their students to pass the bar within two years to retain accreditation.. Put aside for the moment arguments that we should not require graduation from an accredited law school to take the bar—arguments with which I have some sympathy. Assuming states do accredit law schools, it hardly seems like a draconian requirement that a large majority of their graduates be able to pass the bar

But a variety of schools and groups have objected that this requirement will threaten diversity, because minority candidates from lower ranked schools fail the bar at substantial rates.  This argument seems a desperate one.

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Why Libertarians Should be Originalists

Richard Primus has argued that it would not make sense for a libertarian to be an originalist. But his arguments impose an unreasonably high standard for a libertarian’s choice of interpretive method, and reflect, like another recent post, a misunderstanding of originalism.

First, he says that the Constitution does not entrench libertarian principles as such.  True enough. Libertarianism is a philosophy of the twentieth century. The key provisions of the Constitution are from the late eighteenth and mid-nineteenth century. But for a libertarian  who wants to decide which constitutional interpretive philosophy should be instrumentally useful (to be clear that is not I), it should not matter that the Constitution does not perfectly capture libertarianism.  Instead, the question should be whether an originalist view would move constitutional law today toward  more libertarian results than plausible competing interpretive theories. And here the answer is yes.

First, the original Constitution sharply limited the scope of the federal government and constrained it through the separation of powers.

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A Libertarian Ticket Hostile to Elements of Liberty

Presidential Candidate Selection

As a classical liberal, I regard libertarianism as I would a wilder, younger brother. Libertarianism is younger because it is largely a product of modernity, while classical liberalism is more rooted in the 18th and 19th centuries. It is wilder, because it posits that the public-good function of the state is more limited and the externalities less frequent than I and other classical liberals believe. Yet the philosophies are close kin: they both see that the state poses a perpetual danger to its citizens, only disagreeing at the margin on when it is necessary to relax the strictures on governmental action. And at least with the most sensible libertarians and classical liberals, these disagreements are largely empirical.

Thus, in a race where the Republican candidate for President is careering away from classical liberalism and the Democratic candidate is flirting with the socialist elements of her party, a classical liberal might find a natural home in the Libertarian Party. Sadly, however, the Libertarian ticket has taken some important positions hostile to liberty. Begin with religious freedom.

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Modern Progressives as the New Iconoclasts

Progressivism was born in no small measure from opposition to the rule of law, because it wanted to overthrow the Constitution by means other than the amendment process, if necessary.  But today progressivism’s opposition to the rule of law is not confined to the Constitution.

The latest example comes from Yale, a bastion of progressivism.  There a dining hall employee purposely destroyed a stained glass window that depicted African Americans picking cotton, because he found it offensive. Initially, Yale fired him and referred him for prosecution. But after protests from professors and students, Yale declined to prosecute and is in negotiations to reemploy him. The protesters celebrated his act of “civil disobedience.”

The support for this act of vandalism and Yale’s pusillanimous climb down are misguided on many levels.

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The Welfare State’s War of All Against All

welfare state

I prefer to call the “welfare state” the transfer state, because that characterization leaves open the question of whether a government which engages in large-scale transfers of money from one group to another actually increases human welfare. I am skeptical, mostly because the transfer state is always in danger of creating a polity dominated by faction. It can in fact sustain the war of all against all—the very phenomenon that the state is supposed to prevent.

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