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.

In Polarized Times the Administrative State Undermines Stability and Prosperity

The FCC is about to eviscerate the Obama administration’s rules on net neutrality. One of its reasons is that the elimination of net neutrality will provide incentives for internet providers to put more investments into speeding up the system, because the network providers, not the government, will make pricing decisions.  But how can internet providers be confident that they will reap the value of their investments given that any Democratic Administration elected in 2020 will almost surely bring back net neutrality?  And one of the Democrats’ arguments in favor of net neutrality will surely be that net neutrality gives content providers the confidence to invest in content. Wash, rinse and repeat!

The partisan vacillation about net neutrality show how the administrative state in our politically polarized time can be a powerful force for instability and therefore a hindrance to economic growth. Of course, the original conception of the administrative state made it a bulwark of stability, since its judgments rested on technocratic science.  But no one much defends anymore the view that administrative policies emerge from a transmission belt of science. Instead agencies use their broad statutory delegations to make substantially political decisions. And Chevron has effectively broadened those delegations, because it gives agencies the power to interpret the scope and content of these delegations so long as that interpretation is reasonable, even if it is not the best one.

The instability created by the administrative state contrasts with the stability in government that James Madison believed “essential to [its]national character.”

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Improve Federalism by Rewarding Interstate Movement

Chicago, IL and Toledo, OH interstate highway sign

One of the glories of our constitutional structure is competitive federalism. Under the original Constitution, the states had very substantial powers of regulation. But they were disciplined in large measure because they were forced to compete in a market for governance. If a state imposed too many burdens on their citizens through either taxation or regulation or failed to provide needed public goods, citizens could leave.

For competitive federalism to work well, the federal government, however, does need to facilitate it. Most important are the constitutional rights that ease movement. Article IV of the original Constitution requires each state to extend the privileges and immunities it extends to citizens within its state to citizens of other states. Presumably that right effectively guarantees free movement in, out and, within the state for out-of-state citizens since states universally grant that right to their own citizens.  The self-ownership assured by the Thirteenth Amendment eliminated a legal obstacle that African Americans faced travelling from state to state.   The First Amendment assures that citizens can hear about conditions in other states and compare it to their own.

But it is not only the Constitution but federal statutes that can make a difference to the vibrancy of state competition.

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Creative Tension, Not Crack-Up

Samuel Goldman has written a bracing Liberty Forum essay suggesting that the Right side of the political spectrum is split, perhaps hopelessly and irrevocably, between classical liberalism and reaction. The roots of the divide are deep and enduring but what brings the problem into bold relief is our political moment and, above all, the rise of Donald Trump. While Goldman’s essay has much that is valuable, I am skeptical of its dichotomy. The best reading of classical liberalism as a philosophy is to see it as more skeptical of the power of reason in ordinary politics than Goldman believes. Classical liberalism…

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Don’t Take the Benedict Option

Professor Goldman begins his Liberty Forum essay by urging a striking, but probably unworkable, reconception of the fundamental divide in conservative ranks. Rather than “the familiar distinctions between libertarianism and traditionalism, neoconservatism and paleoconservatism,” he proposes, it’s a conflict between “liberalism and reaction.” Reaction—meaning reactionary politics such as Trumpism—is, according to Goldman, not easily compatible with…

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Freedom Might Well Flourish Even If Conservatives Don’t

Samuel Goldman has written a wide-ranging and thought-provoking Liberty Forum essay on the current sorry state of American conservatism. This sorry state is especially sorry for those of us who, like Dr. Goldman, believe that classical liberalism is the best part of American conservatism. It is an assessment, he says in conclusion, which he hopes…

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Critiquing the Administrative State Is Natural

Samuel Goldman has made a stimulating contribution to our political discussions. “What is the Future of Conservatism?” is thoughtful and thought-provoking. In light of the feud between Never Trump conservatives and Trump-supporting conservatives, it is well worth pondering if Goldman is right that we are witnessing a conservative “crack up.” This concern is not new. He…

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The Politician Addressing a Law School Commencement is a Democrat

Above the Law performs the useful service of identifying the 2017 law school commencement speakers. It is surely not comprehensive, but it is long and likely representative, because the site solicits information as well as doing its own reporting.

Of the politicians and political appointees, current or former, who are speaking this year, 22 are Democratic elected representatives or officials appointed by Democrats. Two are Republicans. And it is clear that there is close to a rule for choosing Democratic speakers as opposed to Republicans, because the exceptions prove the rule.

You can be a Republican official and a law school commencement speaker if you are Vice President of the United States and your university has a very long established practice of inviting the newly elected President of the United States to be its commencement speaker at its university wide graduation. But because that President was in its view the unacceptable Donald Trump, Notre Dame invited Mike Pence to be the commencement speaker. Now I am not as confident as Above the Law that he is a speaker for the law school itself as well, but even if he is, it is on account of unusual circumstances.

The other Republican official speaking is Alex Acosta at the Florida International University College of Law. He is now Labor Secretary. Until April he had been Dean of the Florida International University College of Law.

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Entitlement Reform Delayed Is Entitlement Reform Denied

Social secruity

The longer entitlement reform is delayed the worse entitlement reform will be. Indeed, delay increases the risk of no substantial reform and much higher taxes for supporting Social Security and Medicare.  As time passes and more baby boomers retire, the amount of money paid out for age-tested entitlements will grow, making the programs even less solvent. Even more importantly,  the larger number of recipients and those close to eligibility will form a voting block against decreasing benefits. People fight very hard, sometimes even irrationally, to hold what is theirs. I am getting closer to eligibility myself and while I am ideologically committed to reform, I sometimes feel the tug of my own interests in policy analysis.

And the elderly form a particularly powerful voting block.  It is costly to vote and thus the elderly vote in larger numbers than the young.  They have less exciting things to do than the young and more time on their hands.

But most of the best reforms to Social Security and Medicare would affect those already collecting these entitlements or those within hailing distance of retirement.

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Progressivism, Not the Internet, Threatens Democracy

Nathaniel Persily, a professor at Stanford Law School, wonders whether democracy can survive the internet. The immediate impulse for his question is the election of Donald Trump, who used social media to get around the established institutions, principally the mainstream media, that mediate between candidates and citizens. In particular, Persily fears that fake news circulating in social media empowers demagogues, of which a prime example in his mind no doubt is Donald Trump himself.

The essay is an exemplar of progressivism, because it puts its faith in institutions dominated by progressives to safeguard democracy rather than the Constitution. But to one who is not a progressive, Persily’s fears are unwarranted and his solutions are a source of concern. Begin with fake news. It is not a phenomenon of the internet.  Political campaigns in the early republic were vicious because of outrageous and often false charges in the partisan press.  Adams was said to be a monarchist focused on establishing a dynasty with his son;  Jefferson was accused of being an atheist. He was also alleged to have sired children with one of his slaves. That last bit of dramatic  information would have been labelled as fake news at the time by the self-designated great and good—the real fact checkers of any age–, but it appears to have been true.

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Uber Is a Force for Equality

Uber is a company under attack by politicians and the media.  Many politicians, like Bill De Blasio, want to restrain its growth to protect incumbent cab companies. Others want to undermine its business model by requiring that its drivers using its devices be employees rather than independent contractors. The New York Times recently ran a story clearly suggesting that the company is using unfair psychological tricks to keep drivers picking up customers.

These complaints lack merit. Protecting incumbents against new forms of competition is a classic harm to consumers. Uber drivers do not meet the traditional criteria for employees because, among other factors, the company does not control their hours or place of doing business.  And as Geoffrey Manne shows, the management innovations Uber introduces through the understanding the psychology of workers have benefits to consumers and drivers alike.

But the assault on Uber also ignores a hugely important effect of company and similar services: they reduce  inequality— which these same politicians and mainstream media argue is the most important issue of our time.  Uber improves both the material condition of the middle-class consumer and the lower-middle-class driver.  First, the consumer gets a service that starts looking more like having a chauffeur than a taxicab driver. For instance, he can summon a driver without previous notice and within minutes by pushing a button on his phone in the comfort of home rather than hail a taxi in a storm.

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Trinity Lutheran Church and Unconstitutional Conditions

The recent case of Trinity Lutheran Church v. Comer raises the question of whether a church can be excluded from a competitive process for awarding state aid—in this case funding rubber floors on playgrounds to protect children when they fall.

The most powerful doctrinal argument for the Church is that a decision in its favor treats the Free Exercise Clause like other constitutional rights.  A citizen (or other bearer of rights) cannot be forced to give up something provided by the state because he is exercising a constitutional right, absent a compelling state interest. As Justice Elena Kagan said at oral argument, “it is as strong as any constitutional principle that there is, that when we have a program of funding — and here we’re funding playground surfaces — that everybody is entitled that funding, to — to that particular funding, whether or not they exercise a constitutional right.”

Justice Kagan was describing the so-called unconstitutional conditions doctrine and she was correct that it is regularly applied across the range of constitutional rights. It is the pull of this doctrine and the felt need to make its application consistent that it is likely to move a very large majority of the Court, including Justices Kagan and Breyer, to rule in favor of the Church.

The arguments made in the oral argument against the doctrine of unconstitutional condition in this case are weak.  One was that the program at issue here was competitive rather than universal. 

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Google and Facebook Provide Innovations that Make Us More Equal

Seo Concepts (included Clip Path)

The New York Times publishes many silly opinion pieces on law and economics but a recent article by Jonathan Taplin, Isn’t it Time to Break Up Google, plumbs new depths of folly.  The title understates the breadth of its ambition: the author wants to break up or regulate as public utilities Facebook and Amazon as well as Google.

His unproven premise for acting against these successful companies is that they are monopolies.  For instance, he contends that Amazon has a monopoly in e-books. But it is not at all clear that Amazon has market power once the market is correctly defined: hardcovers and paperbacks provide substitutes that discipline prices for e-books.  Google has a large market share in online search but its competitors are only a click away.

But, more importantly, it is great mistake to break up or bring under comprehensive regulation companies simply because they are monopolies. There is a reason that our antitrust laws attack only monopolization, not the mere possession of monopoly power. As Justice Antonin Scalia observed in Verizon Communications v. Trinko, one of his great but less well-known opinions: “monopoly is what attracts ‘business acumen’ in the first place; it induces risk taking that produces innovation and economic growth. To safeguard the incentive to innovate, the possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct.”

The desire for monopoly gives life to the economy no less than the desire to procreate gives life to the natural world.

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