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.

The New York Times Gets Money and Politics Wrong


Nicholas Confessore’s long front-page article in Monday’s New York Times, “Rauner and his Wealthy Friends Are Remaking Illinois,” raises concerns about the power of rich individuals to influence elections. The article both subtly and overtly argues that rich people are using their money to overturn the kind of government citizens of Illinois want.  But it actually shows the importance of preserving the First Amendment right to push back against the ingrained biases of the government and the media, like the New York Times itself.

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The Crisis of Our Universities Is a Crisis of Left-Liberalism


The threat to free inquiry and free speech at our universities today flows from the ideology of left-liberalism. As measured by campaign donations and other indicators, the faculty and administrators are almost entirely on the left wing of the Democratic party. It is hard even to imagine that anyone but a left-liberal today could be appointed the head of any one of our top twenty universities.

Leftism and liberalism are in tension, because the former prioritizes equality while the latter prioritizes liberty.  Leftists focus on equality of result as opposed to equality before the law.  They are also enthusiastic about many forms of social engineering to reach a vision of substantive equality that is every changing.   Unlike those on the wholly collectivist left, left-liberals have traditionally been committed to preserving many of the tenets of liberalism– freedom of speech, belief, and the rule of law. But these liberal commitments often stand in the way of achieving their equality goals. Freedom of speech and belief empowers individuals to resist programs of greater substantive equality. The rule of law protects what leftists may regard as entrenched concentrations of power.

These tensions are playing out in the new wave of political correctness that is threatening our universities. 

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The Farewell Address Reflects Federalist Party Policy Rather than the Constitution

The Rosenkranz Debate concerned the truth of John Adams’ quotation: The Constitution is designed  for a moral and religious people and it’s wholly unfitted for the government any other.  My friend, Professor Robert George, relied primarily on George Washington’s Farewell Address for historical evidence.  There Washington, like Adams, claimed religion was important, if not essential, to sustaining the Republic.  For instance, Washington famously said,   “Let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.”

But Washington’s Farewell Address provides an uncertain guide as to whether the Framers of the Constitution thought widespread religious belief necessary to sustain it. As I noted in my opening remarks at the debate, the text of the Constitution does not support this view. It does not establish any particular religion or even require belief in a religion of one’s choice. It instead expressly prohibits all religious tests for offices under the United State Constitution.

Moreover, it is dangerous to rely too much on the words of politicians in political strife to establish much about the Constitution. And as great as George Washington was he was still a politician, and as powerfully stated is his Farewell address, it is in large measure a document reflecting the principles of the Federalist party.  His remarks on religion parallel one of key attacks of the Federalists on the Democratic Republicans–that they were deists, like the dreaded French Revolutionaries, or at least no friends of traditional religion. 

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The Constitution’s Design for Promoting Civic Virtue: Part III

This is the last in a series of posts excerpting my speech at the Federalist National Convention, arguing that only religious freedom, not pervasive religious sentiment, is necessary to civic virtue under our constitutional order.  Here I show that periods of greater religiosity do not coincide with greater constitutional fidelity:

One test of whether religion is necessary to preserve the constitutional order is whether periods of greater religiosity coincide with greater fidelity to the Constitution itself. And if we look at the course of American history, we do not find a high degree of correlation, let alone a causal connection, between periods of greater religiosity and fidelity to the Constitution. History also fails to show a positive correlation between secularism and constitutionality. Rather, it underscores the great dangers to our constitutional  order can come from either religious enthusiasm or secular utopianism. Both share an ecstatic approach to politics that finds the Constitution inconvenient, as its constraints protect a society generated by the spontaneous order of freedom. It is not that only that the Constitution can be preserved by the liberal order it encourages, but it can be destabilized by demands for government-enforced morality that is too encompassing.

In a very interesting recent book, The Evangelical Origins of the Living Constitution, John Compton makes the persuasive case that living constitutionalism—the theory that upends our written Constitution—has its beginning in the evangelism that originated in the second great awakening. These evangelicals and their religious descendants became unhappy that the Constitution as written facilitated such vices as alcohol and gambling by protecting interstate commerce and vested rights in property. They therefore promoted legislation that empowered the federal government, as opposed to the states, to regulate morals despite the limitations of the enumerated powers. They also wanted to destroy property used for immoral purposes despite the protection of vested rights.

The precedents set by this movement became key for progressive arguments. Just as the Constitution could be transformed to permit moral reform on a grand scale, so it could justify federal control of the economy.

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The Constitution’s Design for Creating Civic Virtue: Part II

This is the second part of a three-part summary of a speech that I gave last weekend at the 2015 National Lawyers Convention of the Federalist Society. The first part focuses on how commerce encourages civic virtue. The second continues by discussing how limited government aids civic culture and how the Constitution helps assure that religion will be helpful rather than harmful to that culture:

Besides encouraging a commercial society, the Constitution also sharply limits government. The federal government is limited by the enumerated powers. The states’ capacity to create large, intrusive, anti-commercial government is circumscribed by the right of citizens to exit. To take just a purely hypothetical example, if my home state of Illinois exacts large taxes in favor of small groups like public sector unions, many of its citizens will leave.

Limited government creates the space and indeed the need for the kind of private associations that Alexis de Tocqueville celebrated.  Varying in size and mission, these associations may concern self-improvement, mutual aid, or social welfare. As the Nobel Prize-winning political scientist Elinor Ostrom showed, these associations can help people develop bonds of social trust and maintain long-term relations of reciprocal goodwill, which can also help sustain a free society.

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The Constitution’s Design for Promoting Civic Virtue: Part I

At the Federalist Society Convention I had a debate with my friend, Professor Robert George, on a famous quote by John Adams: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” In the next three posts, I will excerpt my speech. And then I will add a postscript on Washington’s Farewell Address. Here is the beginning:

John Adams famously said “Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” His claim assumes that we can afford to have the limited government created by the Constitution because the people are already possessed of an abundance of virtue—indeed crucially virtues fortified by religion. But the Constitution itself reflects a very different faith: that a people blessed with a constitution like our own are likely to develop the virtues of self-restraint and social trust needed in order to thrive.

Religion can certainly help actualize virtues but so can other kinds of culture and practices. And the Constitution is premised on the enlightenment view that its very design can create the necessary virtues for civic life from elements of human nature, including raw self-interest.  The constitutional structure thus maintains itself and does not necessarily depend on any religious system.

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For More Privatization and Less Unionization at the TSA

I travel a lot and one of most unpleasant problems I encounter is the TSA. The lines are frequently long and the employees on occasion discourteous. But the most annoying aspect is that I have very little confidence that its procedures are well designed to keep us safe or that its personnel even assiduously follow these procedures. Over the summer confirmation of my fears came in the form of Homeland Security’s revelation that in over ninety percent of the instances, a “red team” designed to test security got through with some sort of dangerous contraband. Such failures should force us to reconsider the structure of TSA.

What the agency most needs is more private competition. Currently few passengers go through private screening. If the agency put more private contracts out for bid, the government could incentivize better results.   The contracts could include clauses that would reward companies for passing the tests that the government run screening has so miserably failed. More competition would also aid innovation and efficiency over time.  A centralized bureaucracy is unlikely to come up on its own with the all best ideas. At first, the government could continue to centralize various aspects of security, like background checks of screeners. But even those could be outsourced as if contractors could show that they had better methods.

The government should also reconsider unionization of TSA screeners currently employed by the agency.

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Public Meaning Originalism Is Not Indifferent to Evidence About the Intent of the Framers

On this site Frank Buckley yesterday made a series of puzzling assertions about originalism. First, he says that “original meaning originalism” (which I believe most people call “public meaning originalism”) “dispenses with an examination” of what the Framers intended. At another point he states that public meaning originalism “collapses” into original intent originalism. These statements are in some tension with one another, but neither is accurate.

Few, if any, public meaning originalists believe that public meaning dispenses with examining what the Framers intended. What the Framers intended to do with words they wrote is often good evidence of what the public meaning was, particularly if they made their intent manifest publicly, as in the Federalist Papers. That is why almost all originalist scholarship of the public meaning variety regularly consults such materials.

On the other hand, the original intent does not collapse into public meaning. For public meaning originalists, the Framers’ intent does not constitute the public meaning conceptually and it may not even provide powerful evidence of that meaning if it were not known and contrary to other evidence of what their words would have meant. Moreover, there is ample other evidence from materials at the time that bears on the meaning of the words and phrases in the Constitution, such as newspapers and dictionaries of the time—material also regularly cited by public meaning originalists.

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The Sharing Economy’s Political Power for Liberty

It is rare that an election in San Francisco brings good news to the nation, but last Tuesday voters there defeated a referendum that would have interfered with Airbnb by limiting the number of nights people could rent out rooms in their homes. While this victory is good on policy grounds, it is even better for what it tells us about the capacity of the sharing economy to mobilize small businesses and consumers against onerous regulations.

Small businesses and consumers tend to lose out in politics, because they are diffuse groups where the gain for each individual from engaging in politics to shape regulations is small and the cost of organizing is high. In contrast, large businesses and labor unions are more concentrated interests and as a result  have more leverage. In politics concentrated interests tend to win out over diffuse groups.

Such concentrated interests stood to gain substantially from restrictions on Airbnb. Hotels are competitors of Airbnb and so are the labor unions of hotel workers. Generally owners who want to rent out apartments for short stays and their customers would be no match for these interests. But Airbnb lowers the cost of organizing, because it is internet based. This organizational ability levels the playing field. The sharing economy is the porcupine of politics with ample quills in the form of participating consumers and small businesses for defense against government regulation.

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Why Campaign Finance “Reform” Would Make Politics More Like Academia

The Republican debate on CNBC confirms that campaign finance reform would boost the progressive agenda, because it shows the depth of bias in the free media. The questions of reporters–even those who worked for a business news network– tended to be premised on the need for one government program or another to solve a social problem.  As William McGurn noted, in the Democratic debate reporters do not grill the candidates with questions from a small government perspective. And CNBC reporters are not the exception; studies show that media reporters lean strongly left.

It is the capacity of the media to shape the political agenda that puts Republicans on the defensive during campaigns. It is only at election time when citizens have more motivation to listen that independent political messages can puncture that progressive agenda control. That is the reason that Progressives want to reduce such messaging. Campaign finance reform magnifies the power of the agenda control that the media has the rest of the year.

One of the best comments in the debate was precisely to this effect, although it was not said in the context of a debate about campaign finance reform. Marco Rubio stated that the mainstream media was a ”Superpac for Democrats.”

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