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.

Obstacles to Raising Children: A First Time Father’s Reflections

My first year with my first born daughter has been an occasion for both personal joy and melancholy public reflection. Governments, both state and federal, created an obstacle course for raising our child.  And for many other children the natural obstacles have been exacerbated by bad social norms, most particularly norms against rendering judgments about how people’s living arrangements affect children.

To begin on a happy note, however, the first year has reminded me once again of the transcendence of individual genius.  The classics of children’s literature are antic marvels of cheer and cleverness. Reading the best of them allows for adult pleasures as well, because like all great works they offer different line readings and different interpretations.  For instance, if one gives Sam the resonant voice of God, Green Eggs and Ham becomes a parable of reconciling man to God’s creation.

But the government was a constant frustration, making it difficult for a working couple who wanted to comply with its laws and yet provide personal care for their child. Hiring a nanny requires one to calculate social security, withholding, buy unemployment and workman’s compensation insurance, and obey various federal and state regulations. Quite apart from the absurd nature of some these laws, their intricacy defeated this lawyer from doing the compliance work himself and required the additional expense of hiring an outside service. No wonder that agencies referring nannies all told me that very few of their clients even attempt to follow the law. In this context, complexity makes the law self-defeating.

Read More

The Founders Were Better than Trump and Clinton

Alan Taylor, a historian from the University of Virginia, has written an op-ed in the New York Times arguing that Americans wrongly disparage Donald Trump and Hillary Clinton in comparison to the Founders. Instead of recognizing their similarities to this year’s candidates, Taylor says that we treat the Founders as mythical giants. But, according to Taylor, they were as divided and divisive as  these nominees. And the Founders tolerated a society with less sound norms than our own. Moreover, we should just accept that Founders did not resolve the “core principles of our government,” leaving it up to us to fight about them.

This op-ed is misleading and flawed in many respects. It exaggerates the differences in principle as opposed to politics among the Founders. It does not give credit to the Founders’ principles for being a primary cause of the improvement in social norms in America. And its claim that the Constitutional text does not settle core governing principles is a conventional and undefended cliche of the academic Left.

First, while the Democratic-Republicans and Federalists had strong political differences, their respective appointees to the Supreme Court were united on  the constitutional principles of creating a strong but limited federal government whose focus was creating a commercial society. That justices of different parties agreed on so much after deliberation is strong evidence that there was substantial, even if not unanimous agreement, on core principles.

For instance, Chief Justice John Marshall and Justice Joseph Story hardly ever diverged on the resolution of constitutional cases, despite being appointed by  John Adams and Thomas Jefferson respectively.

Read More

Why a Republican Senate Would Be Best for the Rule of Law

There has been a lot of discussion in the blogosphere about what candidate would be better for the rule of law—Hillary Clinton or Donald Trump. At City Journal I recently pointed out that both candidates pose some legal dangers.

But whoever is elected President, there can be no doubt that a Republican Senate would be best for originalism and thus the long-term prospects of the rule of rule. Begin with the election of Clinton, because that is the far more probable outcome and thus should be counted most heavily in the calculus.  She would nominate justices who are outright hostile to the meaning of the Constitution.  At the Presidential debate she said nothing about wanting justices who would follow the law, just judges who have empathy and who would follow her litmus tests of being in favor of Roe and against Citizens United. That latter comments were too much even for the Washington Post.

Even more importantly, she comes from a progressive movement that is dedicated to transforming the Constitution without going through the amendment process. As I said in my City Journal essay:

Read More

Scalia Failed to Create a Rule of Law for Precedent

My co-blogger, Mike Rappaport, has opened up a discussion about the flaws of Justice Scalia’s jurisprudence.  I think this is an important subject. Despite his mistakes, Justice Scalia was a great justice. But precisely because of his greatness, his errors, unless noted and analyzed, may hold back progress in the jurisprudential theories he championed.

In constitutional law, I think Justice Scalia’s greatest systematic mistake was his treatment of precedent. One of his most famous statements on the  original meaning of the Constitution was one in which he argued for following precedent:  “I am an originalist, not a nut.”  Unfortunately, his argument for precedent here does not seemed to be based on the Constitution itself, or tied to any rule.  It is merely a maxim of prudence. Overruling some cases could be too disruptive to entertain.

And to my knowledge, he never provided any further analysis of how to tell us when cases were too disruptive to be overruled and when they were not, let alone whether this was a sensible rule for evaluating precedent, even if it should be thought of as a rule.  As a result, he is open to the criticism that he picked and choose among precedents he liked (or at least could live with) and those he hated.

Thus, for instance, he would never acquiesce in the fundamental right cases, like Roe, but he was willing to follow and perhaps even extend cases, like Wickard v. Filburn.

Read More

Substantive Due Process Is Ready for Takeoff

Clinton appointments to the Supreme Court would endanger constitutional governance in a variety of ways, but one of the most substantial is the creation of rights nowhere to be found in the actual Constitution.  Sadly, the stage has been set for great expansion of such rights by Justice Anthony Kennedy’s Obergefell opinion. It, of course, constitutionalized same-sex marriage.  More importantly for the future, it destroyed the doctrinal restraints on substantive due process—the Court’s minting house for new rights.

Previously the Supreme Court had sharply restricted the rights that could be found in substantive due process. In Washington v. Glucksberg, the Court rejected the argument that the  right to assisted suicide could be found in the Constitution.  The Court read its precedents to require strict objective criteria for the identification of a specific fundamental right: it must be “deeply rooted in this Nation’s history and tradition.” By that strict standard, the right to assisted suicide was a non-starter,  because laws against the practice had long existed.

But same-sex marriage could hardly be termed a right “deeply rooted in the Nation’s history and tradition” either.  In effect, Kennedy said so much the worse for Glucksberg. One reason he gave is that the right to abortion declared in Roe v. Wade itself had  itself not met the Glucksberg test. But the right of  abortion had persisted in Planned Parenthood v. Casey not because Roe was substantively correct, but only because it was a precedent. Thus, Roe hardly should be taken as generative model for substantive due process.

Read More

Legal Correctness, Not Popularity with People or Elites, is the Measure of Fairness

I generally like Adam Liptak’s reporting on law, but a recent story poorly frames the question of the stakes in state judicial elections. Liptak reports on two studies that suggest that elected judges are less likely to rule in favor of rights for homosexuals and become harsher on criminal defendants the closer the proximity to an election. At the end of the article he suggests that making judges more accountable to the people is thus in tension with “the utmost fairness,” quoting Chief Justice Robert’s desideratum for the judicial system.

But I hope and believe that what the Chief Justice means by fairness are decisions that follow the law. It certainly should not mean decisions that the left likes. The studies Liptak reports tell us nothing about whether elected judges decide cases more accurately than appointed justices or whether they do so more or less so in the shadow of an election. The inference being made is that public pressure distorts justice. Maybe so. But the important question is whether it makes judicial decision making more or less accurate.

Judges may want to skew their decisions to maximize their chances of reelection. But judges who do not face elections may also want to maximize personal advantages. And the most obvious objective to be maximized is their reputation and that reputation is decided by a subset of the people— lawyers and elites.

Read More

The Contours of a Compromise on Illegal Immigration

The next administration and Congress need to reach a compromise on immigration. The continuing battle on the status of illegal immigrants is leading to enormous political divisions and fueling the identity politics of multiculturalism on the both the left and right.  For me the compromise must reflect four imperatives. First, it should recognize the reality that we cannot deport millions of people without turning ourselves into a temporary police state—harmful not only to illegal aliens but to our citizens. Second, it should make sure there is a substantial penalty for those who broke the law.  Third, the compromise must secure the border of the United States against further such immigration on a massive scale and contain a trigger to verify that security has taken place before those who broke the law benefit from the compromise. Fourth, the compromise should make it easier for highly skilled immigrants to come to the nation, because welcoming more such immigrants will benefit America, not least by continuing our tradition of assimilating talent from overseas.

First, ultimately the compromise will have to provide a legalized status to many aliens who entered illegally so long as they have not violated other laws. Catching all those who have come here illegally is impractical.  It would also require a law enforcement presence so heavy as to affect adversely many law abiding citizens, particularly those who share the ethnicity of immigrants who have come here illegally. Moreover, since many of those who came here illegally have had children born here who are citizens by virtue of the 14th amendment, mass deportations would result in the tearing asunder of children from parents.

Second, the legislation should make it clear that coming into America illegally was wrong.  Fines will not prove adequate to make this point either expressively or practically.

Read More

A WSJ Ranking of Law Schools Would Improve Legal Education

The Wall Street Journal in partnership with the Times Educational Supplement has just released a ranking of colleges. It provides a useful corrective to the more famous rankings by U.S. News and World Report, because it focuses more on the student outputs rather than inputs. That is, while U.S. News heavily weights the credentials of incoming students, such as the SAT scores and high school grades, the Wall Street Journal weights the outputs, like student satisfaction and salaries earned at graduation. This ranking system also appears to take a more quantitative approach to the quality of the faculty, relying less on reputation and more on actual research output.

It would be hugely beneficial for legal education, if this consortium were to undertake similar rankings of law schools. It would undermine the unhealthy power of US News’ ranking of law schools, which, as with colleges, focuses more on student inputs than outputs. For instance, US News’ only reliable student output measures are bar passage rates and employment statistics. These are blunt measures: a job paying $40,000 counts as much as one paying five times much. In any event, they count for only a relatively small part of the total ranking.

It is true that US News also assesses the reputation of the school among judges and practitioners, but that reputation at least partially reflects their views of law schools at the time they were students with the result that there is only glacial change over time.  And the reputation of faculty as determined by law professors  is similarly backward looking and difficult to change.

As a result, law school deans are more obsessed with student inputs than outputs as the key to improving their US News ranking, even though it is outputs that count for students and it is outputs that educational institutions are in the business of improving.

Read More

Clinton’s Idea of Justice Is My Idea of Theft

It is a theme of fiction: when someone dies, people line up to steal from him or her—estranged relatives and strangers alike. The deceased cannot protect himself. This is a reason that we should expect that death may be a time for the state to work some injustice too.

Thus, we should begin with a healthy suspicion of a tax levied at death. Hillary Clinton’s recent call for a 65 percent federal tax on large estates signals to Bernie Sanders supporters her Leftwing bona fides, but it should signal to the rest of us her lack of a sense of justice. When one adds in taxation from states like New York, the government could then confiscate more than four-fifths of a decedent’s property.

To be sure, our basic intuitions about justice are often hard to justify, but there seems to be a large difference between taxing people’s income at a reasonable rate and taking a large portion of their assets. We think of income as a flow, into which the government may dip, whereas assets constitute a fixed bedrock that is wholly our own.

Our difference in intuition about assets and income might suggest that all estate taxes are unjust. But one plausible justification for sound estate taxes is that they can be a proxy for other uncollected income taxes.

Read More

Deregulation Is Best for Competition, but Antitrust Can Be Second-Best

Over at our sister site, the Library of Economics and Liberty, David Henderson has a post taking some issue with my view that the Obama administration’s antitrust division should not have agreed to the US Airways/American Airlines merger. He argues that the better course is not to block the merger and instead to permit the building of more airport landing slots and allow foreign airlines to fly between U.S. cities.

I agree entirely with these deregulatory measures. Indeed in prior posts, I have called for some of them. But the soundness of such policy proposals does not advance the case for this merger. The Justice Department has no power to deregulate airport construction; such zoning is controlled by state and local authorities. Even foreign airline entry is controlled by another agency: the Department of Transportation. By law and competition theory, the Department should take the world as it finds it.

As a matter of law, the antitrust merger guidelines tell competition regulators to consider ease of entry as part of assessing whether an industry is too concentrated to permit a given merger. And these guidelines make sense. If entry is easy, concentration of incumbents becomes less relevant, because they remain price takers, deterred by fear of new competitors from raising prices above competitive levels. But when entry is difficult, that crucial discipline is absent.

More generally, antitrust regulators cannot assume a world that does not exist, because that premise makes the perfect the enemy of the good. 

Read More