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.

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A Government Distracted from its Core Functions Loses Trust

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The Senate Judiciary Committee held a hearing on free speech on campus last week. During the question and answer period Senator Diane Feinstein complained that public universities, like Berkeley, could not be expected to assure that unpopular speakers were heard on campus. They simply did not have the resources to protect them.  One witness, Eugene Volokh, the UCLA law professor, pushed back,  lucidly arguing that universities must protect unpopular speakers, because permitting agitators to prevent speech gives them a heckler’s veto.

Feinstein’s question points up one of the greatest problems of governance today. Our public institutions often do not deploy the resources to protect their core mission, because money is wasted instead on matters that are outside that mission and indeed undermine it. The University of California is a perfect example.  As Heather Mac Donald has noted, the university keeps spending millions of dollars to hire bureaucrats devoted to various aspects of  diversity. Yet these kind of bureaucrats frequently poison the atmosphere for free and open debate on campus. And dispensing with them would pay for more security that could protect Berkeley’s core mission of free inquiry.

Maintaining law and order is the government’s most essential function.

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Why Trinity Lutheran is the Most Important Case of the 2016 Term

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Courthouse Building

Trinity Lutheran v. Comer was the most important case of this Supreme Court term both because of its effects on educational policy and on the future character of the American polity.  There a six-member Court majority held that Missouri could not prevent a church from competing for public funds for rubber mats to make its preschool playground safer for children.   The Court held that the government cannot withhold funds for an essentially secular project simply because the potential recipient is engaged in religious exercise. As I previously suggested it would, this case extended to free exercise rights the doctrine of unconstitutional conditions previously applied to other constitutional rights.

As the Chief Justice Roberts noted, the only practical result of the denial in this particular case would have been “in all likelihood, a few extra scraped knees.” Nevertheless, the future consequences of this holding are likely very substantial. There are 37 states that have restrictions on state aid to institutions which are engaged in religious exercise.  State Supreme Courts have often interpreted these prohibitions to prohibit school voucher programs and other forms of assistance for education by religious institutions.

But this case will sweep many of these decisions away.

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The New Left’s Dangerous Old Antitrust Ideas

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The course of antitrust law in American history has proved a barometer of good governance.  In the New Deal, the Roosevelt administration lurched from one policy to another, united only by the injury they did to the economy.  Sometimes that administration broke up companies simply on account of size and at other times permitted actual collusion by competitors on prices.  In the Warren Court era, both the Department of Justice and the Court itself prevented mergers, even though they were economically beneficial. In Brown Shoe, the nadir of all antitrust law, Chief Justice Earl Warren invalidated a merger between two relatively small shoe companies in an extremely competitive market because he concluded that it might become part of a merger trend and because it would make the companies more efficient at selling shoes!

In contrast, since the Chicago School revolution in antitrust was empowered by the Reagan administration and sustained by its successors, antitrust law has become quite sensible. It has intervened only when needed to protect the welfare of consumers, preventing collusion or mergers that would likely keep prices higher than in a free market. The consumer welfare standard of modern antitrust has also offered relatively clear rules of conduct derived from microeconomics, thus protecting the rule of law and curbing government discretion over business.

But ideas percolating on the left threaten this sound consensus and an oped in the New York Times yesterday exemplifies the danger. Lina Khan, who was the policy director for Zephyr Teachout, the radical Democratic candidate for New York Governor in 2014, complained about Amazon’s recent purchase of Whole Foods.

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Liberalism’s Identity Problem

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This week Tim Farron, the leader of the British Liberal Democrats, resigned  because he found his Christian faith incompatible with leading his party. Apparently, the problem was that while he agreed with the Liberal Democratic position that homosexual relations and same-sex marriage should be legal, he also believed, like many Christians, that homosexual relations were wrong.  Many party colleagues found the combination of these two positions intolerable.

But this kind of combination traditionally defined the essence of liberalism, supposedly the guiding light of Farron’s party.  Liberalism was exactly the view that government had no business regulating actions or beliefs unless they could be demonstrated to cause concrete harms to a third party. As a result, liberals have supported legalizing all sorts of matters that they may have believed immoral or imprudent. In my view, the best test for a liberal is the willingness to tolerate behavior of which he morally disapproves.

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Why Federalism Advances Fusionism

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I am strong advocate of liberty in society.  Nevertheless, I don’t think of myself as a libertarian. First, many libertarians tend to engage in more reasoning from first principles and less reasoning from experience than I think wise.  While in general individual freedom in a great social good, it is hard to define a priori the exact boundaries for freedom of  a given society.

Moreover, while people do have rights, they also exist at a particular historical time and are to a degree constituted by social traditions. It is not, of course, that all these traditions are excellent and should be retained, but their too rapid elimination on the basis of abstract principles can disorient citizens as well as invite backlash against freedom.

As a result, I have been more attracted over time to “fusionism,” a combination of classical liberalism and traditional conservatism popularized in the modern era by Frank Meyer, which I see as giving a priority to liberty but offering respect for tradition. And tradition and liberty can be complementary as well as in dialectical tension.  Under political structures conducive to liberty tradition offers some rough empirical guidance on the appropriate contours of freedom and constraints on imprudent changes during periods of political passion.  And it provides a bulwark against destabilizing social change.

And nothing better expresses the essence of fusionism than sound federalism. 

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The Political Economy of the Conservative Party’s Near Defeat

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Row of tree voting booths

The British election reveals the coming clash between the old and young in much of the West.  The social welfare state naturally creates divisions between groups with immutable characteristics like age as each group maneuvers to get a larger share of money from the state before it runs out.  This sad truth was at the heart of the Conservative Party’s lost majority in the last election.

The young voted almost two thirds for Labour, despite the fact that party was led by Jeremy Corbyn, who was regarded by his own parliamentary party as an unelectable tribune of left wing protest and had as its shadow chancellor, John McDonnell, an open admirer of Lenin and Trotksy. To be sure, the young do not remember the real costs of socialism of either the hard Eastern European kind or the softer British variety.  It would almost contribute to the net happiness of Europe if a member of the old Soviet bloc remained to be a negative exemplar for everyone else.

But even with its compromised leadership the Labour party knew how to exploit the fault line between the old and the young created by the modern welfare state.  Much of the budget of Britain, like other Western democracies, goes to pension and other benefits to the old for which those younger are largely paying. But given longer life expectancy and lower birth rates,  young people fear that they will never get similar benefits, because the well will have run dry by the time they become eligible. Thus, they are energized by the Labour Party’s promise of free college tuition.  That promise can be cashed in now, unlike the illusory ones of state pensions four decades hence.

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Universities Abandoning Political Neutrality Harm Free Inquiry

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Many presidents of universities, including my own, have committed their institutions to supporting the Grand Coalition on Climate Change.  The founding statement of the Coalition criticizes President’s Trump decision to pull out of the Paris Agreement on Climate Change and offers support for various policies by state and local governments to pursue the objectives of that agreement.

It is a serious mistake for universities as institutions to criticize or support controversial political initiatives, let alone become part of political coalitions.  Universities must stay of out of politics and refrain from policy endorsements that are by their nature political. By maintaining their institutional neutrality they can best foster debate and further the progress of knowledge about controversial issues of the day. Universities are brokers of knowledge. To be honest brokers, they must eschew politics.

Wading into politics imposes two kinds of costs.  The first is a chilling effect on debate and free inquiry within the university.

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How Liberal Universities Could Liberate Speech

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Drew Faust, the President of Harvard, is concerned about the plight of free speech on college campuses and hers in particular.  She says all the right words about the importance of free speech to a university. But her suggestions about how to secure it are vague  and anodyne. For instance, Faust exhorts  those at the university to be “generous listeners.”  For a college President, that is a bit like a preacher exhorting his congregation to oppose sin.

It is easy to be a generous listener when you are listening to people who agree you with you.  But the ideological and partisan homogeneity of Harvard makes generous listening to sharply dissenting views harder, because it is easier to regard them as irrational or evil when none of your friends and colleagues share them. The problem is a structural and institutional one and cannot be solved by sermons.

Thus, if Faust were serious about free speech and free inquiry on campus she would announce some initiatives to make sure that conservative and libertarian voices punctured the campus bubble. A school as wealthy as Harvard could announce a speaker series to bring in a serious conservative or libertarian scholar once a week to speak to the entire university on an issue of public policy or political philosophy.

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Harvard President’s Weak Analysis of Free Speech Problems

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Drew Faust, the President of Harvard, devoted her commencement speech to free speech at Harvard and universities in general. First, she defended its centrality to a university’s mission of free inquiry; second, she asked why it had become such a contentious issue in recent years; and third, she made suggestions to strengthen it for the future. She deserves credit for the vigorous defense in the first part of her remarks at time when many university Presidents are missing in action. But the rest of her speech was shallow.

For instance, she suggested that it is the decline of religious, class and ethic homogeneity that has led to a renewed debate over the value of speech: “Once overwhelmingly white, male, Protestant, and upper class, Harvard College is now half female, majority minority, religiously pluralistic, with nearly 60 percent of students able to attend because of financial aid. Fifteen percent are the first in their families to go to college.”

Here she substantially exaggerates the homogeneity of the Harvard past, at least the past of four decades ago when I was a student.

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Is French Cohabitation Coming to America?

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In France the President cannot appoint a cabinet of his own choosing, if the legislature is controlled by a majority of the opposition party. Instead, cohabitation results, where the prime minister and most of the cabinet members reflect the views of the party with a legislative majority as much as they do the President.  Thus, newly elected President Emmanuel Macron is running very hard to get a majority for his party, En Marche!, in the French General Assembly in the coming legislative elections.

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