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.

Trump versus The Bureaucracy

After President-Elect Trump announced that he would separate himself from his business, the tweeter feed of the Office of Government Ethics (OGE) went berserk. It praised Trump for agreeing to divest himself of the ownership of his companies, a position which he had not announced.   OGE’s multiple twitter comments were often sarcastic, ending with exclamation points obviously intended to mock Trump’s own style.

To say that these comments were inappropriate is an understatement.  OGE lacks jurisdiction over Trump because the President and Vice-President are not covered by the conflict of interest rules on which OGE advises. And OGE helps presidential appointees with conflicts problems confidentially, reserving twitter for announcing new rules. Unless the director of OGE can get control of his agency, he should resign.

But OGE’s actions show what may be in store for the Trump administration from the federal bureaucracy: not only hostility but contempt. There are three problems President Trump faces.  One confronts any Republican President: the bureaucracy leans left.  Indeed, the average bureaucrat is not only more left-wing than the median Republican but also the median Democrat.

But Trump faces two additional problems.

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Trump’s First Achievement: Making Obama Not Great

One way of understanding American history is as a struggle between consequential Presidents who expand liberty and consequential Presidents who expand the state. On this view, most Presidents are frankly not all that important: their decisions are marginal and many are reversed or substantially modified.

If  so, Donald Trump’s victory had an important benefit for liberty, even if he himself is no classical liberal, because it prevented Barack Obama from being a consequential President on the statist side of the ledger.

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Scalia’s Successor Needs His Virtues

In addition to a commitment to enforcing the Constitution as written, the successor to Justice Antonin Scalia should possess two of his virtues.  First, he or she must unflinching in pursuit of principle even in the face of the rewards that often come from abandoning it.  The highest honors from our legal and academic establishment all go to justices who begin or  drift left. Justice Scalia, of course, was impervious to all such temptations.

But a justice also faces a temptation to decide law in favor of the policy preferences of the team who nominated him. Law, however, has no team, and Justice Scalia knew it. He wrote opinions in cases from flag burning to detention of enemy combatants that conflicted with the sentiments of many of his fellow conservatives.

And it was clear from the time  of his appointment that on the Court Scalia would be a member of only one party—the party of law.  In the academy, he showed his independence by dissenting on issues of central importance to his colleagues, like affirmative action.  At the Office of Legal Counsel in the Ford Admnistration, however, he even made allies unhappy by keeping the executive branch within the metes and bounds of the law.

Second, Scalia’s successor must be capable of pressing the intellectual case for following the Constitution as written.

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Deregulate to Undermine Political Correctness

Destroed  politic

Donald Trump has happily announced that his administration will be dedicated to deregulation. And one very important place to deregulate is higher education. Not only will discarding regulations make education less expensive but it will help temper political correctness.  Higher educational bureaucrats, not professors, are the worst offenders when it comes to forging the manacles for impressionable minds.  And bureaucrats are hired and empowered in so no small part by federal regulations.

The volume of regulation in higher education is truly astonishing. It is not only conservatives who object. Here is a 2015 summary by the bipartisan task force on higher education:

Focusing solely on requirements involving the Department of Education, the HEA contains roughly 1,000 pages of statutory language; the associated rules in the Code of Federal Regulations add another 1,000 pages. Institutions are also subject to thousands of pages of additional requirements in the form of sub-regulatory guidance issued by the Department.  . . . In 2012 alone, the Department released approximately 270 “Dear Colleague” letters and other electronic announcements—this means that more than one new directive or clarification was issued every working day of the year.

But classical liberal and conservatives have particular reason to object to these regulations.

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Classical Liberalism, Free Trade, and Accelerating Change

The 2016 election was a victory for the Republican party but it was hardly a resounding one for classical liberalism at least as historically defined. Classical liberalism, for instance, has reflected an enthusiasm for free trade along with other free markets. But Donald Trump ran the most aggressively anti-free trade platform of any major party nominee Democratic or Republican in the last century.

But rather than simply bemoaning the fact, classical liberals need to take account of it, because the anti-trade turn is a part of the greatest challenge classical liberalism has ever faced: how to address the ever faster rate of social and economic change. The freedom to make such transformations through technology and trade creates very substantial wealth but it disrupts people’s lives, making them less liberal and more eager for state protection than before.

There can be no doubt that such disruption was at the heart of Trump’s victory. ​

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President-Elect Trump’s Opportunity to Create a Lawful Judiciary

Law and Order

Donald Trump has the best opportunity of any President to create a judiciary that follows the Constitution as written.

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Free Association, Not Safe Spaces, on Campus

Many universities are now in the business of creating “safe spaces.” The concept is not well defined but includes establishing actual physical spaces that will be reserved for some group, generally a group that a university defines as a minority. But some of these same universities also impose so-called “all comers policies,” in which no group is permitted to exclude anyone even from its elected offices on the basis of their beliefs. Thus, for instance, Christian groups would have to admit atheists even as potential leaders.

But policies that create safe spaces are in substantial tension with those that require clubs to accept all comers. A group of Christian evangelicals might well believe that it may be more effective in its mission if its members shared its basic beliefs. It might also make its members feel more comfortable discussing them, if  the organization did not have opponents in its midst.  That is not to say that a restrictive charter creates the ideal form of such an organization: some groups of evangelicals might well welcome embrace debate at every turn and benefit from the intense scrutiny of every argument.

One of the virtues of allowing groups to make such decisions is that a community would no doubt get a range of distinctive spaces for speech generated by different trade-offs between mission and openness. Another is that the university would respect many different forms of diversity that bubble up from below rather than just those that conform to its official line on what kind of diversity matters.  Most importantly, a university that is dedicated to creating places where people can feel comfortable, but does not want to be in the business of creating official restrictions on speech in student life should also be pleased with the self-organization of overlapping spheres of debate.

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The Legitimacy of Trump’s Victory and the Limits of Democracy

NEW YORK, NY - NOVEMBER 08:   (Photo by Spencer Platt/Getty Images)

Some already seek to delegitimize Donald Trump’s decisive victory in the Electoral College, on the grounds of his failure to win the popular vote. But in the close elections where the results of the Electoral College and the popular vote diverge, the popular vote result has no electoral significance because the candidates did not try to win the popular vote. If they had tried to get the highest popular vote, they would have campaigned entirely differently. Donald Trump would have campaigned more in Texas to increase his vote and Hillary Clinton would have campaigned more in California. They would have run their television advertisements in different places. And perhaps fewer citizens would have voted, because many more would have thought their vote was unlikely to change the large national count.

Given the less than 200,000-vote margin separating the candidates, we cannot be certain who would have won the popular vote had the candidates been aiming for a popular majority. As I said in a similar discussion of Bush v. Gore, “paying attention to the popular vote this context is like suggesting we should pay attention to the total number of runs a team got in the World Series rather than the number of games won.”

A second myth to delegitimize the Electoral College and thereby Trump is to claim that the Electoral College advantages the small states.

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The United States Must Not Become a “Normal Country”

Peter Thiel gave an interesting speech endorsing Donald Trump. Many people are very unhappy about the endorsement. I am ambivalent about this aspect, because it is beyond my poor powers of calculation to determine which of the worst pair of major party presidential candidates in American history would do the most long-term damage to the republic. But I disagree strongly with the theme of his speech—that what American needs is to become a “normal country.”

What Thiel seems to mean is that America should resemble most other nations, which are less interventionist in foreign affairs and whose citizens see themselves as acting out of interests rather than some set of unique principles. Becoming a normal nation in this respect would not only represent a change from America’s historic role in the world but be against our long-term interests.

The United States is a very unusual, indeed extraordinary nation, because it is founded on principles rather than ethnicity or conquest. And its principles were mostly fine classical liberal ones. That has made it look and behave very differently from other nations. For instance, it has not had as large a welfare state as other industrial nations or even a socialist party. One of my greatest fears is that this election is making it more “normal” in this respect.

The Republican standard-bearer is not trying to trim our burgeoning entitlements; the Democratic candidate, now influenced by the socialist Left of her party, wants substantially to increase them. Insofar as citizens see themselves as part of a “normal nation” rather than one dedicated to principles of liberty, the United States will decline, as the ever-larger entitlement state creates economic stagnation and a war of all against all.

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The Value of Tradition in a Post-Enlightenment Age

In my last post, I discussed how the Enlightenment gave a boost to liberty by making progress central to the aims of society and the scientific method central to its processes. But these new developments, in turn, raised serious questions about the value of tradition.  If past is to be surpassed, tradition becomes less revered. If the scientific method is prized, less formal ways of knowing, like tradition, become devalued.  Finally, progress continuously changes society, making traditional practices a less good guide for a future that is ever accelerating away from the past.

Thus, ever since the Enlightenment, tradition has to struggle for its place as a contending category for social organization. Nevertheless, it still has relevance. Here are three important remaining functions for tradition, ideas that have been distilled for me in my discussions at the Tradition Project.

Tradition as a Buffer. Even assuming that other methods are better at bringing out progress, progress itself has costs. It destabilizes society, and sometimes alienates citizens who do not feel they have a place in the world progress has created.  Thus, even as society progresses, it must respect traditions to avoid social upheaval. Edmund Burke, the greatest defender of tradition in Modernity saw this value, among others, for tradition.

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