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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.

August 17, 2017|compromise, History, Obamacare, Spending, taxes, William F. Buckley

Does the Right Share the Progressive View of History?

by John O. McGinnis|26 Comments

The right and left wings of the Republican and Democratic Parties do not appear to have symmetrical tactics. The right, usually in the House but often in the Senate, refuses to compromise even when that refusal will generate a worse short-term result from their perspective. For instance, the right in the House has refused to vote for federal spending bills even if they were written by the Republican leadership. In 2012, the most conservative caucus refused to vote for a bill that would have limited tax hikes to those earning over a million dollars a year. And they have blocked some of the compromises that might smooth the passage of a partial Obamacare repeal and health care reform.

As a result, the Republican leadership has had to rely on Democratic votes for the budget, leading to higher spending. Without the leverage of the House bill taxes went up on couples earning over $450,000. The prospects for any substantial legislative reform of health appear dim.

In contrast, the Democratic left is willing to compromise. They all voted for Obamacare, even if it was not a single-payer plan. And I do not recall any substantial opposition to budgets passed in the Democratic Congress. What explains this difference?

August 14, 2017|Donald Trump, Jeff Sessions, Presidential Oath, Reagan Administration, South Africa Divestment, Take Care Clause

Why Attorney General Sessions Should Change Litigating Positions

by John O. McGinnis|7 Comments

The Department of Justice under Attorney General Sessions has been criticized for changing its positions in litigation from those taken by the Obama administration on such questions as whether Title VII prevents discrimination on the basis of sexual orientation. Some of the criticism has been on the merits of the new position, but others have complained about the wisdom or propriety of changing a position that the government has already advanced in court.

This latter kind of complaint is wholly without merit. The Department of Justice is not like a private litigant and should change positions to reflect the jurisprudential stance of the President and his new administration. Unlike a private client, the President has taken an oath to “preserve, protect and defend the Constitution of the United States,” and must “take Care that the Laws be faithfully executed.” Thus, as I have noted long ago, the Attorney General and his subordinates have obligations that no private lawyer has: not simply to prevail in litigation, but to advance the President’s interpretation of the Constitution and the laws made under it.

To the objection that President Trump, a non-lawyer, has no jurisprudence, the Attorney General and his subordinates should ask themselves what the President would do if he knew as much about jurisprudence as they do. With President Trump, they are substantially aided by President’s own actions. His list of potential Supreme Court justices were to a person committed originalists and textualists.

August 10, 2017|Disruption, Diversity, Google, Markets, sociobiology, Tenure, Travis Kalanick, Uber, University

Comparing the Ideological Bubbles of Google and the Elite University

by John O. McGinnis|9 Comments

Google and our elite universities appear to inhabit the same ideological bubble and intone the same diversity mantras. And that is not surprising, because almost everyone at Google is a product of the modern university and those at its HR department the likely product of its more PC inflected half—the humanities or soft social sciences. And Google must live within the world of mainstream media and government regulation, and these two sectors are also dominated by elite university graduates of the last quarter century.

But nevertheless the institutions and their employees operate under different constraints. Google is the elite university without tenure and the elite university is Google without market discipline. You might think that tenure is the more important obstacle to enforcing an orthodoxy like modern diversity policy. After all, a professor at an elite university would not be fired for making the largely accurate factual claims about the average differences in temperament between women and men that the Googler did in the memo that got him sacked.

August 6, 2017|dissenting opinions, judicial hubris, reason of law, Rule of Law, Ruth Bader Ginsburg, unanimity

The Indispensability of Judicial Dissent

by John O. McGinnis|11 Comments

Justice Ruth Bader Ginsburg recently noted that she sometimes refrained from dissenting in the cases she regarded as less important like tax disputes and saved her dissents for the big ones like those on gender equality. Unlike some of her other obviously injudicious remarks, her opinion on this matter may be widely shared among judges. When I asked a friend who had become a federal appellate judge what most surprised him, he said it was norm among his colleagues to suppress written dissent in all but important cases. He was troubled by the practice but felt pressure to conform.

My friend is right to feel uneasy. It is a bad practice. First, it smacks of judicial hubris. It is often difficult to be sure how important a decision will be in the long run.. The fabric of the law is complex. For instance, the development of minor exceptions to a doctrine can eventually lead to pressure for its overthrow. Even cases that are minor to Supreme Court justices can have large ripple effects.

August 3, 2017|Bob Natelson, Fourth Amendment, Gary Lawson, Geoffrey Miller, Language of Law, Laura Donohue, Michael Ramsey, Natural Born Citizens, Necessary and Proper Clause, original methods, Originalism

Originalist Scholarship Relying on the Language of the Law–Part II

by John O. McGinnis, Mike Rappaport|17 Comments

In our last post, we provided some examples of recent scholarship that rely on the view, which we have defended, that the Constitution is written in the language of law. They are not consistent with the view that the Constitution is written in ordinary language. In this post we provide some other important examples.

Scholars have even shown the language that looks most ordinary is better understood as part of the language of the law. The Fourth Amendment provides: “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The word “unreasonable” is sometimes used as an example of a vague word in ordinary language that renders the meaning of a constitutional provision indeterminate. But Laura Donohue has argued that the word “unreasonable” should be instead read with the legal meaning of “against the reason of the common law.” As a result, the Fourth Amendment does not incorporate some free-floating reasonableness test, but a set of specific prohibitions of searches that violated the common law.

July 31, 2017|Due Process, Eighth Amendment, John Stinneford, Language of the Law, Michael McConnell, Nathan Chapman, original methods originalism, Ryan Williams

Originalist Scholarship Relying on the Language of the Law–Part I

by John O. McGinnis, Mike Rappaport|12 Comments

We have recently written a paper arguing that the Constitution is written in the language of the law. In particular, the language of the Constitution includes terms, like “Bill of Attainder,” that are patently technical, and terms, like “good Behavior,” that are latently so in that they have both an ordinary and legal meaning but are better interpreted according to the latter. It also includes legal interpretive rules, including those that tell readers when to understand a term in its legal sense or its ordinary meaning sense.

The Constitution’s legal language is significant. Theoretically, it shows that original methods originalism is the correct form of originalism, because the Constitution’s legal interpretive rules are crucial to cashing out its meaning. Practically, the richness of its idiom provides resources to address otherwise unresolvable interpretive questions.

Striking confirmation of our thesis comes from modern originalist scholarship. Much of the best of such work depends on reading the Constitution as written in the language of the law and is inconsistent with reading it as written in ordinary language. In this post and the next we will provide some examples.

John Stinneford has provided a new interpretation of the Eighth Amendment by reading the Clause in the language of law.

July 27, 2017|Central Banking, employment, Entitlements, Growth, Ray Fair, Spending, taxes

Democratic Accountability and the Economy

by John O. McGinnis|6 Comments

Ray Fair, a fine Yale economist, has the best economic model for predicting the outcome of presidential and congressional elections. The model has the virtue of simplicity, weighting incumbency, length of time a party holds the Presidency, and news about the economy on growth and employment relatively shortly before election. It has not been perfect in predicting each party’s share of the two party vote, but it has been good–good enough to be taken seriously outside the academy. The New York Times in fact devoted a whole interview to him, sadly marred by the seeming inability of the interviewer to understand why, Fair, despite being a Democrat, used his model to predict a Republican victory!

But the relative success of his model makes one doubt how strong is democratic accountability for the economic performance of government. Few, if any economists, would say that the news about growth and unemployment shortly before an election is a good proxy for that party’s economic stewardship. Business cycles are not in the control of the government. And perhaps more importantly, the most important policies a government undertakes likely take longer than a few years to bear fruit. Thus, the tax cutting policies of the Reagan era may be largely responsible for the prosperity of the Clinton years as businesses and people invested more.

July 23, 2017|affirmative action, Chiris Eisgruber, Formalism, Multiculturalism, Originalism, political diversity, Political Polarization

Why the Academy Will Remain Mostly Unwelcoming to the Right

by John O. McGinnis|14 Comments

Chris Eisgruber, the President of Princeton University, recently expressed concern that universities are perceived “right or wrongly, as blue dots” in a politically divided America and thus said that universities must be concerned with political diversity. Some other university leaders have also cautiously suggested that the academy may put out the welcome mat for the right. Nevertheless, there is reason for doubting that political diversity will be increased or discrimination against conservatives and libertarians ended in the elite university setting. The causes of political imbalance and of discrimination are entrenched and are unlikely to change soon.

July 19, 2017|AlphaGo, Artificial Intelligence, China, Elon Musk, Friendly AI, green cards, Michael Polyani, Watson

Accelerate Rather than Regulate Artificial Intelligence

by John O. McGinnis|3 Comments

Elon Musk is a visionary entrepreneur but a bad social planner. Over the weekend he addressed the Governors’ Association and called on their members to sponsor regulatory bodies to direct the development of artificial intelligence. He argued that AI is the “biggest risk we face as a civilization.” But our AI policy should be the opposite of what Musk supports. Federal and state governments should not regulate AI, but should help accelerate it. That is essential to our national security and offers the best hope of stopping malevolent AI, not that I believe the risk is as great as Musk apparently does.

Musk’s central premise is correct: AI is now making huge progress. In 2011 IBM’s Watson beat the best players at Jeopardy, showing that AI can now play in the more fluid world of natural language, not just in games with very formal moves. Just this year, Google’s AlphaGo beat the world’s best Go player. This is startling development, occurring long before most predictions. Unlike chess, Go does not have clear strategies that can be programmed: even great players have a hard time explaining why they move as they do. Google did not program in strategic heuristics, but learned from 30 million Go games and simulations of games how to play better than champions. Thus, as Andrew McAfee and Erik Brynjolfsso note, the victorious program reflected Michael Polyani’s famous paradox about humans: We know more than we can tell. And this kind of data mining can give AI an intuitive, not a formally rule-based judgment in many other areas. Lawyers, beware: the machines are coming!

July 17, 2017|Free Speech, Masterpiece Cakeshop, Same Sex Marriage

The Expressive Society and Masterpiece Cakeshop

by John O. McGinnis|3 Comments

Until my own wedding five years ago, I had never recognized how many modern craftsmen and craftswomen considered themselves artistes. Our wedding photographer labored over angles, like a film director, to make the pictures a joint production of our day and her style. And even the wedding cake maker in our interview with her said she wanted to capture our “spirit” as a couple in her design. I reflected then that in a wealthy society even many people who make material things think they are ultimately are in the business of creating meaning, where they mix their expressiveness with their clients to make art in the workaday world.

Our expressive age provides the social context for the Masterpiece Cakeshop, in which a cake baker couple is challenging an antidiscrimination law that requires them to bake a cake for a same-sex wedding ceremony. Mark Movsesian has written an excellent post, in which he is doubtful about the success of such claims because they run afoul of the egalitarianism of American society–a feature first noted by Alexis de Toqueville. But America is also dedicated to free expression. And just as egalitarianism has increased over time to embrace the equality of same-sex and traditional marriage, so has the breadth of expressive activity. Thus, the First Amendment question in Masterpiece Cakeshop sets up a clash of two powerful currents coursing through America–equality and expression. And to make the clash even more striking, Justice Anthony Kennedy, often the swing vote on the Court, is both the creator of constitutional rights for same-sex couples and the most stalwart defender of free speech.

Machiavelli's Common Good

by Mark Blitz
Machiavelli’s Politics is aptly named. Catherine Zuckert’s new book concentrates intently on Niccolo Machiavelli’s judgment about how best to govern political communities in the ordinary sense—places such as Florence and…

The Unbridled Faith

by Donald Devine
With an estimated 40,000 Protestant denominations worldwide, how is it possible to compress such a subject in a single book, even in 500 pages on the 500th anniversary of the…

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