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.

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.

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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. 

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The Continuity of the Fourteenth Amendment with the Founding

At a splendid conference at the University of the South last weekend, the most important underlying theme turned out to be the question of the continuity of the 14th Amendment with the rest of the constitution. Some scholars—indeed most– argued that the Reconstruction Amendments represented a second founding and a radical break with the past.

In contrast, I believe that there is substantial continuity between these two essential parts of our charter of liberty.  The 14th Amendment advanced and opened to all the commercial republic that was at the heart of the original Constitution. By their secession and actions leading up to succession, the South showed that it recognized that commercial dynamism and freedoms of the original founding would doom slavery. The Civil War just accelerated the realization of guarantees that flowed from principles implicit in the original Constitution.

For instance, before the War Southern states tried to gag discussion of petitions on slavery on the House floor and banish criticism of the peculiar institution from the federal mails, in obvious violation of constitutional guarantees. Slavery supporters also burned down abolition newspapers.  They tried to ban books that argued that the wages of Southerners who did not own slaves were decreased by the institution of slavery.  As Michael Kent Curtis noted, these acts allowed the North to reframe the debate about slavery as one about established constitutional liberties and the freedom of labor generally.

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Social Norms, Not the Constitution, Should Regulate Protests at Sport Ceremonies

President Obama weighed in recently on the controversy created by a football player refusing to standing during the playing of the national anthem at the beginning of a game. Colin Kaepernick, a San Francisco 49er’s quarterback, wants to call attention to his view that people of color are oppressed. The President supported him, saying Kaepernick was exercising his constitutional right under the First Amendment.  A  few days ago Jeffrey Toobin more specifically analogized this issue to a case in which the Supreme Court struck down a law requiring school children to salute the flag, because it violated their beliefs as Jehovah’s Witnesses.

The President’s and Toobin’s comments represent a characteristic bit of Progressive misdirection, failing to distinguish between legal and social norms. It is absolutely correct that the government has no right to penalize Kaepernick for his action. Expressive conduct up to burning the American flag should indeed be immune to criminal penalties. But no government official is threatening Kaepernick with official sanctions, although some politicians are exercising their own First Amendment rights to criticize his behavior.

The real question is whether Kaepernick is right to use the time for the national anthem for protest. A directly related question is whether his team or the NFL should tell him to desist and penalize him if he does not. That is an issue to be decided in light of his contract with his team and his team’s contractual relation to the NFL. It is one of private ordering about which the Constitution has nothing to say.

The optimal content of social norms cannot be decided by First Amendment case law.

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The Fed’s Independence from President Obama Is Much Exaggerated

Fed Governor Lael Brainard declared yesterday that the Federal Reserve “is designed to ensure that independence from the executive branch is absolutely the focus of the deliberations of the Federal Open Market Committee.” It is clear that her comments were a response to Donald Trump’s criticisms that the Federal Reserve was keeping interest rates artificially low to help the election of the President’s preferred candidate—Hillary Clinton.

One does not have to endorse Trump’s claims fully to believe that the degree of independence touted by Brainard is a serious overstatement. As Peter Conti-Brown has shown, the practical independence of the Fed falls far short of its design.

The seven members of the Federal Reserve Board of Governors are nominated by the President and confirmed by the U.S. Senate.  It is true that the full term of a governor is fourteen years and appointments are staggered so that one term expires in each even-numbered year The lengthy terms and staggered appointments are indeed intended to contribute to the insulation of the Board—and the Federal Reserve System as a whole—from day to day political pressures.

But governors almost never serve anything close to their fourteen year terms. The outside options are simply so lucrative that almost everyone resigns after terms far short of that. As a result, today every Governor of the Federal Reserve was appointed by President Obama. Brainard herself is Obama’s former Undersecretary of the Treasury, not to mention a candidate for Secretary of that department in the Clinton administration.  Would we think a Supreme Court was independent of the President if all its members were appointed by him?

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The Harvard Law Review and Three Laws of Preference

harvard law rev

The Harvard Law Review has announced that it has the most diverse intake of editors in its history when diversity is measured by race, ethnicity, and gender. In fact, according to an article in the Crimson, the demographics of the intake resemble the demographics of the Harvard Law School class. This development would indeed be a cause for celebration if it were not the result of preferences rather than merit selection.
Racial preferences began during my time at Harvard Law School and their first implementation occurred when I was an editor. My memory is that they were focused on African Americans and quite limited in number. Indeed, my impression was that they were used only when candidates were close to the cutoff in the writing competition. I say “my impression,” because like the very few other conservatives on the review I had no position of authority there.

But since then the number of “discretionary positions” to be potentially filled by preference has expanded first to ten positions and in 2013 when gender was added to race and ethnicity as a category to twelve positions or more than 25 percent of the intake. Moreover, last year in keeping with the student stirs on the HLS campus, activists complained about the review’s demographic makeup, no doubt putting pressure on it to make use of all the slots, regardless of performance.

This history at the Harvard Law Review illustrates three “laws” of preference.

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The Obama Administration Is Helping Raise Your Airfares

Last week American Airlines took two extraordinary actions that confirm that the airline industry has become an entrenched oligopoly.  First, American Airlines began a bizarre new advertising campaign. Its message: be a good flyer by showing consideration to your seatmates and maintain equanimity in the air. This advertisement makes little sense in a competitive industry. It does not tout low prices or any distinctive amenities of American that might help it gain market share.   An industry that implicitly coordinates on price and amenities, however, might benefit from the such an advertisement, if it got more people to fly generally.

Second, American Airlines gave a $13 million severance payment to its President even though he was joining a rival, United Airlines.  And the severance was not a matter of legal obligation but at its discretion. It is wholly against usual business practices to give gifts to a high level executive who goes to work for a rival. The more frequent reaction is to sue the official for endangering trade secrets. But again this course of action makes sense if American, United and other airlines are engaging in the implicit coordination made possible by oligopoly.  The President of American would then still working for a common cause. Why not maintain goodwill in those circumstances?

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A Labor Day Program for Freeing Labor


Nothing is more central to human flourishing than work.  Other animals expend energy to survive. But man evolved to make conscious toil for food and shelter. This aspect of our heritage is reflected in a psyche that for most still requires work for contentment.  Sigmund Freud was not right about everything, but he was certainly correct that love and work are the necessary conditions of a satisfied life.

While modern America has cleared out obstacles to love, however unconventional, it has put up more and more impediments to work.  Begin with the tax code. It raises most income from labor, not consumption. As a result, the government discourages work more than is required to run its operations. Nor can the decision to tax labor heavily be justified by concern about inequality.  For those who want their taxes progressive, a consumption tax can be made as progressive as an income tax.

Second, minimum wage laws prevent the least talented and able among us from participating in work.

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The Party of Limited Government is Naturally the Party of “Obstruction”

From my many friends who are Democrats, I hear a common complaint: the Republican Party is a party of obstruction while the Democratic party is much more accommodating.   Of course, the first reaction of most Republican would be to note the many not so accommodating actions of Democrats, from the attempt to filibuster Justice Samuel Alito to the refusal to negotiate any reforms in social security with the newly reelected George W. Bush. But such back and forth is pretty fruitless and may miss a more fundamental point.

It is not at all clear that it is rational for parties to engage in the same amount of obstruction.  The rational amount of obstruction depends on how easy it is to repeal the policy being obstructed. If it is easy to repeal the policy, it does not make sense to pay the political price for obstruction, because the policy can be  readily ended when the party comes to power.   But if the policy is hard to repeal, obstruction becomes a more natural course.

Thus, the real question on the rationality and justification for obstruction is whether the Republican and Democratic parties face the same political terrain for repealing the legislation they oppose.  And I do not believe they do, particularly when it comes to the creation or expansion of entitlements.

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Political Diversity at Universities Could Help Temper Polarization

The argument for ideological diversity on campuses is strengthened by the growing political polarization in society. Political polarization is costly, because citizens then are more likely to dismiss a policy position based on the identity of its supporters and opponents than on the merits. Polarization also makes it harder to reach compromises, and compromises are more often likely to lead to political stability than ideas with a more narrow range of ideological support.

One of the reasons for polarization appears to be that citizens today are more able to live in ideological and partisan cocoons than in the past. They can look at the websites they like and not at those that might challenge their views.   Cities and towns also sort themselves out more by political beliefs. Those opposing the predominant views of the their current residence are more likely to move to a more politically hospitable climate.  Apparently, Republicans and Democrats even choose to follow different celebrities although they do admire a golfer or two in common.

The most obvious place where citizens should learn to interact with ideological opponents and confront arguments that will challenge their views is the university. But this experience is less likely if the gatekeepers of ideas are almost uniformly of one political persuasion. And so many of our modern universities are ideologically monochromatic.

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