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.

New Policies Needed to Help Workers Displaced by Machines

Perhaps the biggest technology story of the year is also the most general—the recognition that machine intelligence is poised to displace more people in the labor market more rapidly than ever before.  Among many other treatments, two economists wrote a well reviewed book, the Second Machine Age, on the subject, the financial commentator Nouriel Roubini took note of the trend, and the New York Times recently wrote a long piece trumpeting the development. I wrote about  machine intelligence’s imminent invasion of the legal space. But this news is all around us. Google and others are developing self-driving cars. Self-service kiosks are replacing cashiers.

The cause of this development is the most important phenomenon of our age—the relentless exponential increase in computer power. Until a certain level of power is reached, computers cannot compete with humans. But once they get into a domain they can improve rapidly until they oust human competitors.

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Two Cheers for Increasing Contribution Limits to Political Parties

One of the criticisms of the Cromnibus is that it very substantially raises the amount individuals can give to political parties.  But this change was inevitable and generally positive. It was inevitable, because recent Supreme Court and lower court decisions have protected the First Amendment rights of citizens to band together for political messaging at election time. Without corresponding increases in the capacity to fund themselves, political parties would become a relatively less important political platform.

This development is also a positive one so long as it happens in concert with empowering electoral speech by individuals not connected with parties.

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Should We Fear Our Machine Overlords?

This year has brought renewed optimism about the prospects for strong artificial intelligence and new expressions of fear about its dangers. And some prominent people have expressed optimism and fear simultaneously. Stephen Hawking argues that AI is progressing rapidly, possibly leading to the biggest event in human history– the creation of  general machine intelligence that exceeds that of humans. Hawking also argues that creating more intelligent machines might also be the last such event because they will takeover.  Elon Musk, the entrepreneurial creator of Tesla and Space X, sees strong AI as a demon that we will unleash on humanity.

One might dismiss these concerns as the latest manifestation of a fear that goes back to the Romantic Era. It was first represented by Frankenstein’s monster, who symbolized the idea that “all scientific progress is really a disguised form of destruction.” But Hawking and Musk are serious people to whom attention must be paid.

On balance, I think the threat posed by autonomous machine intelligence is overblown. 

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Originalism and Big Data

Big Data makes the past more present. Recently, a website provided a virtual tour of a picture exhibition that Jane Austen saw in 1813. This site demonstrates how information technology, including big data, can make us closer to the past than ever before. Indeed, we are becoming in some sense closer to past than the denizens of the past themselves. Few people in 1813 attended this famous exhibition, but everyone today is only a click away from a virtual tour. This increasing capacity has large implications in subjects as diverse as literary criticism and constitutional interpretation.

For instance, another example of our capacity to get closer to the past would be our ability to map all the uses of a word (like commerce) at the time that word was used in a document (like the Constitution). Few people could attend the 1813 art exhibition but no one in 1789 could systematically catalog all the uses of a word.

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College Payouts to Politicians

Hillary Clinton has received substantial criticism because of the large fees she has gotten to speak on college campuses. But the universities are also worthy of criticism. What possible justification is there for universities to pay hundreds of thousands of dollars to any politician for a speech?  Universities aim to advance knowledge; politicians aim to advance themselves. Universities should value truth. Politicians are known for spin.

There is nothing wrong with welcoming politicians to campus. Students must use what they learn at college to critique the world, and politics is a worthy subject for interrogation. But the question remains why pay politicians to do it, when other aspects of college life in need of funds, such as instruction, facilities, and financial aid, are closer to the core mission of the university.

Such payments reveal two troubling aspects of the modern university.

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Chicago’s Foolish Decision to Hike the Minimum Wage

I live in Chicago, which is a badly governed city in the worst governed state in the nation. And it has just made another serious mistake, raising its minimum wage to $13.00 by 2019 and to $10 by next year. Ultimately, the new minimum will represent an increase of more than 50 percent over the present one.

Many of the criticisms of minimum wage are well known. For instance, it tends to increase unemployment and this effect falls most harshly on the least skilled. Moreover, earned income tax credits are a superior, targeted way of helping the poor. But there are some very unfortunate aspects of this decision that are peculiar to Chicago and the time in which we live.

First, Chicago is part of a much larger metropolitan area.

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Shale Oil is a Revolution of and for Liberty

The shale oil and gas revolution has been a principal cause of the recent drop in oil prices. This decline provides the equivalent of a tax cut for consumers.  It is to be applauded for that reason alone. But even more  importantly, it boosts our liberty and security as well by weakening the power of Russia, Venezuela, Iran and other nations heavily dependent on resource extraction.

It is not widely appreciated, but the rise of shale energy is in large measure yet another benefit of the computational revolution. Supercomputers find the right formations in which to drill, and smart drilling guided by computation makes the extraction of oil much cheaper. With advances in computation, these costs will continue to fall.

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Will the FAA Prevent Drones from Getting off the Ground?

Livraisons par drones

Drones provide a paradigmatic example of an accelerating technology. They first appeared in the 1950s, but improvements in computation and automation have made drones far more capable in the last ten years. During that short period, drones have already transformed our air force and are on the cusp of commercialization. More generally, when machine intelligence gets into a space, it relentlessly advances, shaking up the world and creating wealth and opportunities.

How the Federal Aviation Administration (FAA) chooses to regulate drones thus has implications for accelerating technology more generally. And, from what has been published about their proposals, the agency appears to be making a complete hash of the enterprise. Some reports say that commercial drone operators will be required to hold a commercial pilot’s license and thus have experience in manned flight. But the ability to pilot an airplane may be neither necessary nor sufficient to handle drones.

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The President’s Disregard for Constitutive Norms

Respect for our constitutive system can be as important as positive constitutional law.  Positive constitutional law is written and, if a plaintiff has standing, is likely to be enforced by the judiciary.  Our constitutive system, by contrast, is either unwritten or at least unenforced by the judiciary.  Order in this system is maintained by the statesmanship of the political branches.

Peter Schuck, a supporter of the President and proponent of immigration reform, has ably articulated the problems of the President’s executive order on deportations as a matter of positive law.  But whatever its positive legality, the President’s decision to defer the deportation of millions of undocumented immigrants does not respect our constitutive system.

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The Emptiness of Empathetic Judging

Dahlia Lithwick has recently complained that the Supreme Court is made up of elites. Hers is not the usual complaint of conservatives that the justices are writing their elite values into the Constitution rather than following the law. It is rather that the justices evince selective empathy—only for elites. According to Lithwick, we need justices who will decide in favor of non-elites on empathetic grounds.

If justices were to follow Lithwick’s advice, the rule of law would disappear. Particularly in disputes that rise to the level of the Court, both parties may deserve empathy. For example, Lithwick praises Sonia Sotomayor’s defense of preferences  in Schuette v. Coalition to Defend Affirmative Action. And surely minorities striving for success who may gain admission to elite colleges because of such programs deserve our empathy. But why don’t those who are denied a place because of their race deserve our empathy as well?  Feeling provides no plausible rule of decision.

In fact, because empathy tends to focus on the seen rather than the unseen, à la Bastiat, it can profoundly mislead us.

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