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.

Same-Sex Marriage, the Political Process and Judicial Manipulation

There is a new meme circulating among journalists about the Supreme Court’s decision not to take certiorari in the same sex-marriage cases. According to the left-liberal Jeffrey Toobin, the Court’s decisions allow the “political process to go forward, one state at a time.” Or as David Brooks, a moderate conservative, said at greater length: “Sometimes, you just let the country have its way, and you don’t try to determine the shape of the country. You sort of modestly step back and let the country figure out what it believes. And I think they’re doing absolutely the right thing in just withdrawing and not getting too involved.”

Whatever one thinks of same-sex marriage (and I favor it as a policy matter), these claims completely distort the truth. The Supreme Court is letting go forward a judicial process that permits courts to invalidate traditional marriage laws if they think such a decision would best reflect the signals the Court itself has previously sent on the subject.  In contrast,  a political process would allow states—principally their legislatures and people—to make decisions about same-sex marriage, one state at a time.

The journalists’ claims are even more disingenuous because of the way the Supreme Court has set the stage for the lower courts.

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Eliminate Missouri Plans for Judicial Selection

It is election season again. And that means it is time for complaining about electoral campaigns against retaining justices who sit on state supreme courts. These campaigns are said to be inconsistent with judicial neutrality because judges are forced to take positions on jurisprudence. Big money is said to buy judicial favoritism.

I am no fan of subjecting judges to elections. In my view, the far superior system is one, like the federal structure,  in which the elected chief executive of the jurisdiction appoints judges for a term of years upon confirmation of a legislative body. But judicial elections are necessary, if the appointments are made according to so-called Missouri plans, an arrangement that permits  lawyers to create a power center of their own in the judiciary.  Indeed, while elections provide some corrective to the democratic deficit of those plans, they are an insufficient corrective, because voters do not  generally focus on judicial elections. The better solution would be trade the end of the judicial elections for the termination of Missouri plans.

The classic Missouri plan works like this:

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The Rise of Machine Intelligence and the Need for Judicial Protection of Occupational Freedom

Occupational freedom is one of the most pressing issues of our time.   The ever greater power of machine intelligence will disrupt more and more industries.  For instance, self-driving vehicles will cause many people  in the transportation industry to lose their jobs.  People in those industries will then look for new positions. But the barriers of occupational licensing have been increasing in the last decades, making it harder to move to new jobs.

The judiciary could be an important force against such irrational restraints on occupational freedom. That is the social background of North Carolina  Board of Dental Examiners v. FTC, a case that was argued before the Supreme Court yesterday.

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The Insights and Fancies of a Billionaire Entrepreneur

Peter Thiel’s new book, Zero to One, is ostensibly a self-help book for those who want to succeed at start-ups.  But any powerful self-help book flows from a philosophy of the world, and Thiel reflects his libertarian and transhumanist impulses.  Zero to One is thus far more interesting and more original than most business books.  But the book is also at times disappointing because, amid arresting insights, it contains overstatements and simplifications. And at the heart of the book is a paradox: Thiel believes that innovation is less than it could be, but he does not offer a convincing explanation of why the market for startups should be failing.

The specific advice to startups is the book’s greatest strength.

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Same-Sex Marriage, Social Movements, and Judicial Aristocrats

It now often said that social movements help generate modern constitutional law. Sometimes the claim is made in defense of living constitutionalism, because, according to many scholars, the influence of social movements shows that living constitutionalism has democratic roots and does not consist of rights simply minted by judges. While it is certainly true that social movements play an important role in living constitutionalism, they do not erase its democratic deficit, let alone assure that new constitutional norms reflect the consensus that the amendment process would provide. One reason for the continuing deficit is that justices write opinions to aid some movements and not others.

A case in point is the movement for same-sex marriage.

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Rules, Standards, and the Era of Computation

The increasing power of computation is the most important force of our age. In Law’s Algorithm, written with Steve Wasick, I apply information theory to demonstrate that greater computational capacity can change the optimal form of law.  Because such increased capacity allows law to be more easily discovered it encourages the use of bottom-up forms of legal ordering, like the common law and standards. These forms of law have advantages in permitting law to evolve as it is applied to new facts and situations. But in comparison to fixed rules they also have disadvantages, because their application is more uncertain.  As legal search and prediction improves through the computation, however, the degree of this disadvantage declines.

Consider a law that requires citizens to drive at a particular speed—a classic rule.

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Eric Holder and the Rule of Law

As Eric Holder leaves office, I want to remind readers of a decision that was a startling breach of legal regularity. It concerned the Attorney General’s core obligation to help the President carry out his constitutional duty “to take care that the laws be faithfully executed.”

The incident arose from a bill that purported to give the District of Columbia voting representation in the House of Representatives. 

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Constitutional Interpretation in Republican and Mixed Regimes

In republican constitutionalism, the people make a firm precommitment to a particular form of governance. Thus, they pass a constitution whose provisions prohibit certain actions in later periods.  This process of self-constraint can be seen in republican terms as an exercise in popular sovereignty.  In addition, if the constitution is originally enacted under a good process, such as one having relatively stringent supermajority rules, it is likely to improve the welfare of the people over the course of the nation’s history.   The distinctive interpretative method of republican constitutionalism is originalism:  the meaning chosen by the people when the constitution is passed binds the people at later times.

In contrast, living constitutionalism is the distinctive interpretive method of the constitution of a mixed regime, which includes an aristocratic element.

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There’s No Such Thing as a Constitutional Free Lunch

Constitutions are supposed to create a framework of good government that cannot be easily upended. As Justice David Brewer remarked, the Constitution is supposed to protect “Peter sober from Peter drunk.” Or to use the canonical analogy from classical literature, a good constitution functions like the ropes that prevent Ulysses from throwing himself into the sea in response to the sirens’ call.

Frequently, however, the United States Constitution is criticized for its inability to accommodate the current preferences of the people.

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A Government Agency Tries to Succeed by Failing

The Secret Service has a difficult and important job but, like other government agencies, it appears to use failure as an excuse to grow its powers. The Secret Service has recently suggested screening tourists in a facility blocks away from the White House to detect threats and enlarge the buffer zone around 1600 Pennsylvania Avenue.  The agency floated this proposal immediately after an event of breathtaking incompetence.  

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