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.

Unfunded Future Forgiveness

This weekend The New York Times presented an article about the current structure of student loan programs. Briefly: because of changes and tweaks to preexisting law, student loan payments are capped at ten percent of income, and debtors are eligible for nontaxable loan forgiveness on the balance after twenty years, or after ten years if they have a government or public interest job.

The enthusiasm of the Times reporter for this development slights three major problems with it. First, differential forgiveness could distort choices in the labor market, to the disadvantage of the private sector.

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Our Hereditary Candidates and Campaign Finance Regulation

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It is remarkable that four of the leading likely candidates to become the next President of the United States have had close relatives who were Presidents or were serious candidates for President. The dominant Democrat, Hillary Clinton, is married to Bill Clinton.  On the Republican side, Jeb Bush who is perhaps a slight frontrunner, counts both his father and brother among former Presidents.  Mitt Romney, the Republican nominee for President in 2012, is also the son of George Romney, a prominent candidate himself.  And Rand Paul is the son of Ron Paul, a perennial candidate for President.

In a relatively meritocratic nation, how can our candidates for President have such a hereditary cast? Perhaps it just happens that, of the 200 million adults in the United States, four of the best qualified candidates are close relatives of other Presidents or presidential candidates?  But there is a less happy answer: our campaign finance system provides advantages to the politically well connected and hardly anyone is as well connected as the close relatives of those who have been Presidents or have run substantial campaigns.

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Another Step Toward Neutral Principles in Campaign Regulation

This week the Supreme Court heard argument in Williams-Yulee v. The Florida Bar. The case is the sixth campaign finance case heard by the Roberts Court but the first to focus on judicial elections.  The Florida bar disciplined Ms. Williams-Yulee for sending a letter to solicit contributions for her campaign for election as a Florida trial judge. The bar found her solicitation to violate a rule of the Florida Code of Judicial Conduct that barred personal solicitation of campaign contributions.

A central doctrinal question in the case is whether the Court will apply its overinclusiveness/under inclusiveness test to these regulations.

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Old Complaints about New Technology

In this Sunday’s New York Times Book Review Leon Wieseltier has polemicized against the digital age. While beautifully written, its major propositions are either wrong or not wholly coherent.  All have been heard before in previous ages of technological change. While it is difficult to isolate all the sources of Wieseltier’s distemper, here are four in ascending order of their claim to be taken seriously.

1. Wieseltier claims that “the greatest thugs in the history of the cultural industry” (by which he means Amazon and the like) have destroyed bookstores and record shops. Similarly, journalists now earn less money because of competition from digital platforms. These complaints are the whining of producers displaced by competition that helps consumers. The Amazon and Barnes and Noble websites allow me faster access to a much wider variety of books than the independent bookstores of my youth. And unlike some of these stores, they do not discriminate against books on political grounds. Journalists have no greater claim to be insulated from competition than other professions. And again the web has given range to much more variegated opinion and analysis than the mainstream media of old.

Wieseltier’s complaint resembles nothing so much as those of French publishers of the late eighteenth century who complained to the National Assembly about competitors with cheaper means of production:

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Tradition, Technology, and Change in Downton Abbey

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Many critics have chalked up the craze for Downton Abbey to nostalgia for a time of simplicity and aristocratic elegance. But Downton Abbey resonates because of present dilemmas, even if they are set in the past.   It relentlessly focuses on a central, if not the central, problem of our time and of modernity in general—how to adapt social norms in ages of ever faster technological change.

Technological transformation is the major theme of Downton Abbey. The landed aristocracy is giving way to a new urban middle class whose wealth comes from industrialization. Because of downsizing, even the marriages of aristocrats must be lived at closer quarters and become more companionate, giving rise to a felt need for closer forms of courtship to assess compatibility.  Last week’s episode introduced the radio, which permits the King to speak to his subjects, but begins the process that Walter Bagehot feared would let light on the “magic of the monarchy” and so dissolve the majestic mystery that preserves the loyalty of the realm.

Major characters in the series embody very different attitudes toward tradition and change.

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A Partyist Solution to Partyism

Cass Sunstein has offered a new solution to advance good governance in a time of partisanship—what he terms an age of “partyism.”  Because a partisan world leads to gridlock in Congress, he suggests that executive agencies should continue to be empowered with substantial latitude to interpret their own statutes.  Indeed, Professor Sunstein argues that agencies should gain a “bit more” discretion to construe existing statutes since Congress will not be doing much updating.

Michael Greve offered his own excellent demurral to Professor Sunstein’s solution. Here are two additional points of critique.   First, empowering agencies is not neutral with respect to partisanship because bureaucrats lean to the left.  Second, empowering agencies is not neutral as an ideological matter.  The progressive agenda itself needs substantial discretion to continue the effectiveness and political endurance of much centralized regulation.  In contrast, conservatives and libertarians are more sympathetic to market and other forms of decentralized order that will take hold even if federal regulation cannot be updated.

There is substantial evidence to support the first point that most federal employees lean to the left of Republicans.

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Free Speech is not a Vanity

In March the Supreme Court will hear a case in which a Texas group is appealing the state’s refusal to style vanity license plates that include an image of the Confederate flag.  The plaintiff’s argument rests on First Amendment rights:  because Texas allows other citizens to choose images for license plates, the state is violating the right to free speech by suppressing this group’s preference.   Another license plate case is being hammered out in the lower courts in North Carolina. There the ACLU is suing on behalf of a plaintiff who wants a pro-abortion vanity license plate, given that the state permits pro-life licenses.

One might think that these cases should be decided the same way, but Corey Brettschneider and Nelson Tebbe suggest otherwise in a characteristically thoughtful oped in The New York Times.  The authors argue that messages on license plates are a mixture of private and public speech.  Thus the Court should balance the private interest in free expression with the public interest in permitting the government to control its own messages.  They conclude that Texas can suppress the vanity plate bearing an image of  the Confederate flag but that North Carolina must permit the pro-choice sentiment because the Confederate flag is a symbol contrary to the constitutional values of equal protection of the law, while pro-abortion sentiments endorse a legally guaranteed constitutional right.

I respectfully disagree.  Although the government has no obligation to provide the opportunity for messages on vanity plates (and if I were a legislator, I would not vote to have them), it should not discriminate among messages based on their content once it opens up this space.  

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The Corrections Officers’ Union is the Enemy of Prison Reform

The one crusade of Mayor Bill de Blasio with which I sympathize is his focus on reforming New York City prisons. They are in a disgraceful condition. Prisoners are not infrequently raped and some die because of the neglect of guards. They are sometimes unjustifiably beaten. But de Blasio is discovering a roadblock to reform—the correction officers’ union. This is a source of great cognitive dissonance to him and his left-liberal supporters because public sector unions are supposed to be an essential part of the progressive coalition.

A New York Times editorial nicely captures the dilemma. The Times tries to solve it by pretending that various malefactions of the corrections officer union are due to its nefarious leader, Norman Seabrook. It even runs an unflattering picture of him next to its critical editorial.

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Constraining the Adminstrative State in the 114th Congress

Today Republicans will take control of both houses of Congress, and the House of Representatives will have more Republicans than at any time since the New Deal. Given their party’s emphasis on limiting federal government, it is important for these lawmakers to consider transformations of administrative procedure that bring back some limits.  In the long run structural reform can be more powerful than discrete policy changes.

Since the New Deal, administrative government has become a dominant force in political and social life. Executive branch agencies– not Congress– are responsible for most of the federal obligations imposed on individuals and companies. To be sure, executive agencies are operating under statutes Congress passed, but these delegations are often broad and, in some cases, almost unbounded. Moreover, the Supreme Court has permitted agencies to put their own gloss on  the ambiguities in their statutes and even on the regulations that they write. This kind of executive power undermines democratic accountability and liberty,  particularly because bureaucracy generally has inherent tendencies to expand government.

But Congress can cut back on the enormous discretion of the administrative state. Here are four measures that the new Republican Congress should consider:

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Social Media Complement Social Life

In an era of technological acceleration, gauging the effect of new technology on our lives is ever more important. Thus, I welcome Justin Buckley Dyer’s skeptical take on the influence of social media on social life, even if I am largely skeptical of his skepticism and even in greater disagreement with his views on technological progress in general.

Dyer suggests that social media will distract people from making the real connections with others essential to human flourishing. My first reason for doubt is the lack of data. Do people have fewer real friendships because they have more “friends” on Facebook? To be sure, Dyer is not at fault for not supplying a quantitative analysis. Even though our computational age is more amenable than ever to empiricism, we do not have the data to answer that question. Moreover, to answer it, we would have to quantify true friendship—a process that Dyer might well think would defeat the entire enterprise.

But even in the absence of complete information, we can see that social media can be a complement to rather than a substitute for conventional friendship.

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