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.

Diversity Policies Favoring Minorities and Women Create Less Ideological Diversity

Professors at law schools are overwhelming left-liberal, as I made clear in a 2005 study published in the Georgetown Law Review. Just as it was said in the late nineteenth century that the Anglican Church was the Conservative Party at prayer, our law schools today are the Democratic Party at the podium.  The hard resulting policy question is whether law schools should adopt affirmative action for libertarians and conservatives to foster the debate that should inform legal subjects with a substantial political valence.

While I have not supported preferences of this kind, the strongest arguments in their favor are the existence of preferential policies in favor of race, gender, and ethnicity that are themselves justified as a way of creating a fuller debate. Indeed, one particularly powerful point—rarely if ever made made—is that the widespread intentional discrimination in favor of certain preferred groups in faculty hiring has a disparate impact on conservative and libertarians and reduces their presence at law schools. That is, since minority and female law professors are likely to be even more left-liberal than white males, the routine diversity policies of law schools decrease the number of conservatives and libertarians compared to a baseline of purely merit selection.

A new study of the ideological imbalance in the legal academy,  The Legal Academy’s Ideological Uniformity, provides hard statistical support for this proposition. It shows that minority and female faculty members are  indeed substantially more likely to be left-liberal than white males and be even more left-wing.  Racial and gender diversity does reduce ideological diversity.

Read More

A Tale of Two Nations and Economic Freedom

The New York Times ran two stories within two days about two very different nations.  One story noted that France was an unhappy place in danger of electing an extremist, Marie Le Pen, as President.  But the author found the plight of the country puzzling, noting that France has wonderful infrastructure compared to the United States and continued to have a culture second to none. He puts its misery down to the French fixation on the losses of past glories.

Another story focuses on the very different mood in New Zealand. People are happy there and many foreigners want to immigrate. The prime reasons given are its isolation from the rest of the troubled world and its social tolerance, as demonstrated by its legalization of same-sex marriage and acceptance of refugees. The photo accompanying the story shows Sikh men in colorful turbans against some pleasant New Zealand scenery.

The two stories show the weaknesses of the analytic powers of our elite media and its indifference to economic freedom.  The best explanation of France’s stagnant misery and New Zealand dynamic happiness can be found in the The Heritage Foundation’s Index of Economic Freedom. New Zealand ranks No. 3 and France No. 72 of the 160 nations surveyed in the economic liberty they permits citizens.  Given that most nations ranked below France are developing nations, New Zealand and France inhabit pretty different economic universes among developed nations.

Read More

The New Retirement Calculus of Justices

The new politics of Supreme Court confirmations  substantially affects the retirement calculus for justices. The elimination of the filibuster for Supreme Court nominations together with the much stronger possibility that a Senate controlled by one party will not confirm a Court nomination by the President of the other will change the date of many justices’ retirements.

Three objectives inform  the retirement decisions of Supreme Court justices. First, justices would like to preserve their legacy and thus would prefer to be replaced by a justice like themselves. Second, most justices want to hand back the seat to a President of the party that appointed them. This is secondary to the first objective and when their judicial views diverge substantially from the party that appointed them, as it did in the cases of Justices Blackmun, Stevens and Souter, they will resign during the Presidency of the other party. Third, they want to resign at a time when it will not cause institutional damage to the Court or inconvenience to their colleagues.

The death of the filibuster and the possibility of a blockade generally makes it much easier to meet these objectives if the President and the Senate are controlled by the same party.  First, the blockade can leave the Court short staffed, inconveniencing their colleagues. More importantly, the standoff between the President and Senate places the Court in a partisan cross-fire, harming its legitimacy.

In contrast, the absence of a filibuster gives a free hand to the party that appointed the justice if he resigns during a period of unified control of the Senate and Presidency by that party.

Read More

Why Many Universities Make Free Speech a Low Priority

,,

My friend Heather Mac Donald is the latest speaker to be prevented from presenting on a college campus—this time at Claremont McKenna. Heather’s talk was to show how policing saves citizens’ lives, including those of African-Americans. Heather is the one of the most eloquent speakers I know. It is outrageous that some students prevented her from speaking. But perhaps not surprising: they fear that she may persuade their fellow students that it is some of their preferred policies, not the police, that are the greater danger to minority communities.

After the suppression of Heather’s talk a Vice-President at Claremont voiced bureaucratic regret in the manner that has become familiar after similar such incidents across the country. But it is generally a mistake to believe that university administrators at these universities or many others will do what it takes to defend free speech and thus free inquiry at their institutions of learning. The best evidence of the low priority they place is that students who prevent talks are almost never disciplined, let alone expelled or prosecuted for their interference. As Robert George reminds us every day, no has yet been held accountable for the assault on Charles Murray and his host that occurred at Middlebury. No one has yet been disciplined for the recent violence at Berkeley over a speaker either.

Three reasons combine to make actual protection of free speech a low priority on colleges campuses. The first is the tendency to treat students as simple consumers rather than as participants in the university community with duties that are no less important than professors.

Read More

The Confirmations Wars are not Partisan, but Principled

It is frequently observed that the confirmation process for justices is becoming more partisan, but this characterization is incomplete, even misleading. The classic kind of congressional partisanship occurs when parties rally around  or oppose policies or nominees of the sitting President, simply by virtue of his party.  And if the President takes a different position or nominates a person of different views for the same role, partisans of his party tend to happily fall in line with the new world their leader has created.

But both Republicans and Democrats have views on the appropriate role of judges that transcend the vicissitudes of presidential leadership. When George W. Bush nominated Harriet Miers, it was Republicans who scuttled her nomination, fearing probably correctly that she lacked the depth of understanding to maintain what they believed was a lawful jurisprudence. The jurisprudence favored by Republicans has been working itself pure for decades and now embraces originalism in constitutional law and textualism in statutory interpretation, but that accepts a relatively large role for precedent.

The Democratic judicial philosophy has also become clearer.  At first, it was focused on protecting precedent in general, most importantly that of Roe v. Wade. But now that the Supreme Court under Chief Justices Rehnquist and Roberts have made many decisions, such as Citizens United, that flout Democratic policy objectives  Democrats no longer exalt precedent but empathy as well as good results for their preferred minorities and “the little guy”as opposed to corporations.

The  confirmation hearings on Neil Gorsuch exposed this jurisprudential chasm.

Read More

The Constitution’s Creation Is Compatible with Reading It as a Legal Document

Mary Bilder, a distinguished legal historian, has written an oped arguing that the historical context and drafting of the Constitution shows that originalism is not a suitable interpretive approach for its text.  Larry Solum has already asked her five probing questions about her understanding of originalism.

Here I want to focus on her historical claims and in particular her denial that the Constitution should be interpreted as a legal document.  To be sure, not all originalists believe that the Constitution is written in the the language of the law, but Michael Rappaport and I do.  Bilder’s exposition of an originalism that follows the Constitution’s legal meaning begins by attacking a straw man.   She writes: “Originalism reads our Constitution as if it were a modern technical contract written by experienced lawyers or a contemporary statute written by a team of legislators and staffers, parsing and perfecting every word as they wrote it.”

The Constitution is not a contract or, as Chief Justice John Marshall noted, a code, but that does not mean it cannot be a legal document, interpreted with legal rules appropriate to a constitution, as were state constitutions at the time. And Mike and I have recently shown that text of the Constitution—its legal terms and its presupposition of legal interpretive rules– provides powerful evidence that it was written in the language of the law. But even if Bilder does not consider the text relevant historical evidence— which would be a strange position for a legal historian—her arguments from the context of its drafting are weak.

First, a team of lawyers was in fact responsible for perfecting the language of the Constitution.

Read More

Is the Democrats’ Decision to Filibuster Gorsuch Irrational?

The threatened filibuster by the Democrats of Judge Neil Gorsuch seems irrational if its purpose to help create a Supreme Court more friendly to Democratic commitments. Almost everyone expects the response by the Republicans will be the so-called nuclear option by which they use their majority to end the filibuster rule for Supreme Court nominations. The Republicans believe that filibustering a mainstream judge in the first year of a President’s term is illegitimate. Given that in 2013 the Democrats eliminated the filibuster for lower court and executive appointments, they will also regard themselves fully justified in taking a similar action themselves.   And the Republicans will be acting within their constitutional rights: as Mike Rappaport and I have shown, the Senate majority must have the authority to change supermajority rules by majority vote.

The elimination of the filibuster leaves the Democrats in a worse position for the rest of President Trump’s term.   The most obvious reason is that they then cannot filibuster the next nomination— the one likely to fill the seat of Justice Ginsburg or Justice Kennedy.

Read More

Rights Should Not be Restricted on the Basis of Appearances

A Nebraska Senator has introduced a bill to require photo identification for voting, not because voting fraud is an actual problem, but because Nebraskans perceive there to be such fraud, whether it exists or not. The New York Times wrote a recent story about various Republican state legislators who are taking up this new rationale for voter identification legislation. The reporter’s implicit message is that such a justification is flimsy. And I tend to agree. If voting is a fundamental right protected by the Constitution, legislation should burden its exercise only to address actual harms, not some people’s impressions of reality.  Thus, the legality of these laws should turn on the question of actual voter fraud and the utility of voter identification in curbing it.

But the Times reporter never mentions that the Supreme Court itself has justified campaign finance law on a very similar perception rationale. Since Buckley v. Valeo, legislatures are permitted to regulate campaign expenditures and contributions, which the Court recognizes as protected by the First Amendment, if doing so is needed to avoid corruption or the “appearance of corruption.”

Why should perceptions justify restrictions on free speech rights and not voting rights?

Read More

The Paranoid Style and Senator Whitehouse

conspiracy

Richard Hofstadter wrote a famous essay, The Paranoid Style in American Politics. It is about the recurring tendency of our political actors to allege that there is a vast and powerful conspiracy against the public interest. The Masons were alleged to be at the center of the conspiracy early in the nineteenth century, the Catholics later in the century.

In his opposition to Judge Gorsuch, Senator Sheldon Whitehouse embraces this style of argument. In his  opening statement,  he asserted that there is a “machine” that helps conservative Republicans get on the Supreme Court and then write amicus briefs to show them which way to rule. He endorses the characterization of the Roberts Court as a “delivery service” for the Republican party and right-wing ideology.  How different in terms of respect for judicial independence is calling the Supreme Court a “delivery service” from referring to a judge as a “so-called judge?” Senator Whitehouse claims that this “delivery service”  continually offers up cases against the public interest, protecting gerrymandering, money in politics and the rights of corporations against the people.

Like all conspiracy theories, it has a simplicity about it. But its simplicity is delusive because the world is a more complicated place.

Read More

Bitcoin’s Creation of Order without Law

Concept Of Bitcoin Like A Computer Processor On Motherboard

Modern fiat currencies depend for their value on confidence in the laws of the states that issue them. Some nations, like the United States with its established central bank, inspire substantial confidence relative to nations that may debase for their currency for political objectives. But no nation can absolutely insulate its currency from political manipulation.

That is what gives Bitcoin the opportunity to succeed as a currency. But what gives users confidence in Bitcoin? It is precisely the fact that the rules regulating its currency do not depend on the currency law of any nation state. Bitcoin provides an example of order without law or at least without currency law.

Order without law is not unknown to society. Social norms often regulate behavior without the benefit of formal law. Rules of etiquette tell people how to behave at table without causing offense. Coordination rules help people walk down the street without bumping into one another. In a major work, Robert Ellickson showed that social norms, not law, governed responsibility in a community of cattle ranchers and farmers for the damage caused by cattle straying on the range.

But while order without law is possible without software, software can improve on the enforcement of that order. The beauty of Bitcoin’s design is that its mechanism for enforcement can not only be more powerful than the informal mechanisms that enforce social norms but even more powerful in some respects than the formal mechanisms of law.

Read More