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.

How to Make the Bureaucracy More Accountable

Jeremy Rabkin has written a fine essay about the continuing relevance of James Q. Wilson’s 1989 book Bureaucracy: What Government Agencies Do and Why They Do It. I have been fortunate enough to benefit from Wilson’s analysis in my own writing on the Justice Department’s Office of the Solicitor General. His framework showed why the craft values of a bureaucracy often resist the President’s jurisprudential positions. But I want to use this brief essay to discuss a few issues that I do not believe Wilson sufficiently stresses, and to suggest corrective legislation that might be passed to rectify these distinctive problems…

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Bureaucracy and Some Bureaucracy Problems

It’s Bureaucracy’s twenty-fifth birthday. To celebrate, let’s state some basic facts that correspond with James Q. Wilson’s thinking. Americans want a lot from their government. We want more than we’ve wanted before. It doesn’t ultimately matter where these desires come from (rising standards of living? the inner logic of democracy? interest groups? politicians?). What matters…

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When They’re Too Good at Their Job . . .

The 25th anniversary of James Q. Wilson’s Bureaucracy: What Government Agencies Do and Why They Do It marks an appropriate occasion to reflect on the contributions of this work to our understanding of bureaucratic behavior and performance, and the extensive—and, at least in some areas, growing—presence of the administrative state in the lives of American…

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Falling Down

All the participants in this discussion seem to agree that James Q. Wilson’s book, Bureaucracy, still offers valuable insights, a quarter century after its initial publication. At the same time, we all seem to agree that Wilson’s book didn’t prepare readers for the scale of dysfunction we now see in the federal bureaucracy. We have…

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The Good Constitution and The Sixteenth and Seventeeth Amendments: A Reply to Rossum

We are very grateful to Ralph Rossum for his generous response. In particular, he is very kind to note that our “arguments are interesting, powerful, intelligent, and . . . original.” We also appreciate his emphasis on the power of the syllogistic nature of our argument for originalism. Rossum’s principal concerns center on the adequacy of the supermajoritarian process for constitution making. While he acknowledges its virtues, he observes that it gave rise to two amendments, the Sixteenth and Seventeenth, that he views as problematic. Rossum’s argument is a difficult one for us, because to be frank these are not our…

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Originalism: A Necessary Tool But Not a Constitutional Panacea

In their short contribution to this issue, “Originalism and the Good Constitution” John McGinnis and Michael Rappaport link together two conceptions that I think should be kept forever separate. As their provocative title suggests, they claim that the path to a good Constitution, capital C, lies through originalism. The central point in their argument is…

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Supermajoritarian Originalism

John O. McGinnis and Michael B. Rappaport’s essay, “Originalism and the Good Constitution,” is a précis of their book with the same title, published on October 7 of this year by Harvard University Press.[1] What follows is a commentary on this essay, not the book. McGinnis and Rappaport defend what they call “original methods originalism,” because…

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Original Methods Originalism Best Defends the Classical Liberal Constitution: A Response to Epstein

We are grateful to Richard Epstein for taking the time to reply, but are disappointed that he attributes to us positions we do not hold, indeed ones that are the reverse of our positions. We will first clear up some mistaken attributions and then consider in a spirit of engagement what might be a real…

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Original Methods Originalism Best Defends the Classical Liberal Constitution: A Response to Epstein

We are grateful to Richard Epstein for taking the time to reply, but are disappointed that he attributes to us positions we do not hold, indeed ones that are the reverse of our positions. We will first clear up some mistaken attributions and then consider in a spirit of engagement what might be a real difference in perspective. Epstein seems to understand us to say that any supermajoritarian process is likely to lead to good results. He thus begins his essay by observing that the existence of the Fugitive Slave Clause is a refutation of our position. But he completely misunderstands…

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Originalism: A Necessary Tool But Not a Constitutional Panacea

In their short contribution to this issue, “Originalism and the Good Constitution” John McGinnis and Michael Rappaport link together two conceptions that I think should be kept forever separate. As their provocative title suggests, they claim that the path to a good Constitution, capital C, lies through originalism. The central point in their argument is…

Read More

Supermajoritarian Originalism

John O. McGinnis and Michael B. Rappaport’s essay, “Originalism and the Good Constitution,” is a précis of their book with the same title, published on October 7 of this year by Harvard University Press.[1] What follows is a commentary on this essay, not the book. McGinnis and Rappaport defend what they call “original methods originalism,” because…

Read More

The Good Constitution and The Sixteenth and Seventeeth Amendments: A Reply to Rossum

We are very grateful to Ralph Rossum for his generous response. In particular, he is very kind to note that our “arguments are interesting, powerful, intelligent, and . . . original.” We also appreciate his emphasis on the power of the syllogistic nature of our argument for originalism. Rossum’s principal concerns center on the adequacy of…

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Originalism and The Good Constitution: A Discussion

Originalism 2

Originalism—the view that the Constitution should be interpreted according to its original meaning—has been an important principle of constitutional interpretation since the early republic. Today this theory has prominent adherents on the Supreme Court in Justice Clarence Thomas and, at least in “faint-hearted” form, Justice Antonin Scalia. Heller v. District of Columbia recently featured both majority and dissenting opinions that were wholly originalist in style. Legal academics across the political spectrum espouse some version of originalism. Nevertheless, originalism continues to be plagued by challenges, the most salient being how it is to be justified. But originalism is also confronted by many…

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Originalism: A Necessary Tool But Not a Constitutional Panacea

In their short contribution to this issue, “Originalism and the Good Constitution” John McGinnis and Michael Rappaport link together two conceptions that I think should be kept forever separate. As their provocative title suggests, they claim that the path to a good Constitution, capital C, lies through originalism. The central point in their argument is…

Read More

Supermajoritarian Originalism

John O. McGinnis and Michael B. Rappaport’s essay, “Originalism and the Good Constitution,” is a précis of their book with the same title, published on October 7 of this year by Harvard University Press.[1] What follows is a commentary on this essay, not the book. McGinnis and Rappaport defend what they call “original methods originalism,” because…

Read More

Original Methods Originalism Best Defends the Classical Liberal Constitution: A Response to Epstein

We are grateful to Richard Epstein for taking the time to reply, but are disappointed that he attributes to us positions we do not hold, indeed ones that are the reverse of our positions. We will first clear up some mistaken attributions and then consider in a spirit of engagement what might be a real…

Read More

The Good Constitution and The Sixteenth and Seventeeth Amendments: A Reply to Rossum

We are very grateful to Ralph Rossum for his generous response. In particular, he is very kind to note that our “arguments are interesting, powerful, intelligent, and . . . original.” We also appreciate his emphasis on the power of the syllogistic nature of our argument for originalism. Rossum’s principal concerns center on the adequacy of…

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The Legal Historian as Entomologist

American Legal Thought

The law school curriculum is now full of interdisciplinary subjects. Law and economics may dominate but almost other every social science is well represented. These perspectives offer innovative methods to analyze the effects of law and inform the content of legal reforms. But long before the rise of this alphabet soup of interdisciplinarity, law and history were a well-established combination, providing an important part of legal education and an essential element of legal science. The early salience of legal history for the study of law is all the more reason to welcome the splendid volume, Law’s History: American Legal Thought and…

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Common Law Constitutionalism: Tradition v. Interpretive Process

James Stoner’s essay on the common law and the constitution provides a very valuable perspective on our founding document.  Stoner is wholly correct that the common law concepts are often essential to interpreting the Constitution.  Nevertheless,  I want to raise a note of caution about using the common law method  of interpretation as applied to the federal constitution.   My position can be readily summarized:  yes to common law concepts in the Constitution and the rules forged by the common law that were expected to be applied to its interpretation, but no to a common law method of constitutional interpretation. Let me…

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Peeling Back the Common Law: Reflections Stirred by James Stoner on the Common Law

We were not aware at the time that they were twilight years, that time just before Roe v. Wade was decided, when statutes on abortion were sustained in the courts and only occasionally struck down.  That is in part why Roe v  Wade came with a jolt of surprise.  In one case, just a year…

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