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.

The Successes and Failure of John Quincy Adams

The public career of John Quincy Adams poses this paradox: he was the greatest ever Secretary of State but only a mediocre President. As Secretary of State, he concluded the Adams-Onis treaty with Spain and the 1818 convention with Great Britain. Both were diplomatic triumphs, gaining Florida for the United States and resolving border disputes with both nations. He was the architect of the Monroe doctrine, the cornerstone of American foreign policy in this hemisphere until the present day. He articulated more eloquently than any other Secretary of State a preference for America’s soft power over military deployment. The United States, he said, “goes not abroad in search of monsters to destroy. She is the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own. She will recommend the general cause, by the countenance of her voice, and the benignant sympathy of her example.”

John Quincy Adams’ presidency was a disappointment.

Read More

For Constitutional Federalism, but not the Dissolution of Nation States

I am all for vigorous debate on the site, but I am sorry to say that Michael Greve has misunderstood my post. I do not think it would be at all sensible for Scotland or other nations to secede from their nation states for some of the reasons that Michael discusses. In particular, I do not agree at all that security threats in Europe have declined so as to  justify dissolution.   In my original post, I say they are perceived to have declined, but  expressly observe that Putin should be a “wake-up call.” I am sorry that I was too subtle, but my observation that Europeans regarded Ukraine as  “faraway country of which they know nothing” was a sarcastic reference to Neville Chamberlain’s comment about Czechoslovakia in 1938, showing that I agree that ignoring security concerns is indeed partying like it is 1938. I also made an essential  distinction in my post between dissolution of European nation states and federalism within those nation states.  

Read More

The Scottish Earthquake

The  effects of the vote on Scottish Independence, like the French Revolution, will not be contained within its borders. Whatever the outcome in Scotland, its referendum will reverberate across Europe, energizing the many culturally homogeneous peoples who view themselves as trapped within distantly governed and soulless nation states. The consequences will likely be the creation of more nation states within Europe and certainly more devolution to subunits within nation states. It is a revolution of both cultural solidarity and political subsidiarity.

The European Union, European peace, and the affluence and anonymity of the globalized market economy are the tinderbox for the coming conflagration.

Read More

Seizing the Opportunity to Revisit the Republic’s First Principles

On Monday Senator Harry Reid introduced an amendment, which would permit both Congress and state legislatures to prohibit the use of resources for political speech at election time. The Republicans did not vote to filibuster it but instead by a substantial majority agreed to open debate. Senator Reid then complained that Republicans were trying to “stall” the Senate from getting to other items on his agenda. Washington has reached a new high in legislative hypocrisy: criticizing the opposition for wanting to debate an amendment that you brought to the floor!

The debate is scheduled to last the week. And nothing is more important than having a debate that brings us back to the consideration of first principles. Political theorists since Machiavelli have been absorbed by the problem of preventing the decay and corruption of the republic as its founding principles gradually recede from public view. The most important safeguard against such decline is the creation of mechanisms that naturally ventilate deep disagreements and renew the citizens’ appreciation of their republic’s first principles. Floor time for divisive constitutional amendments is such a mechanism and this one illustrates three first principles on which our two major political parties disagree.

Read More

The Silver Lining of a Very Bad Proposed Amendment

This week, Senate majority leader Harry Reid will bring to the floor an amendment to the Constitution that would permit Congress and the states to target the resources that certain people use to speak about candidates and issues at election time.   A commentator recently complained that bringing this amendment to the floor wastes the Senate’s time, because the proposal has no chance of securing the supermajorities it would need to be passed and ratified. I nevertheless would welcome a prolonged debate.

My reason is not that I favor the amendment.  Giving Congress the power to send people to jail for messaging at election time seems to me the most pernicious effort to suppress free speech by the federal legislature since the Alien and Sedition Acts.  Prohibiting expenditures on political speech curtails the opportunity for citizens to make their voices heard and for other citizens to learn what their representatives are doing. And allowing members of Congress to determine the content of such restrictions turns the First Amendment’s charter of freedom into a delegation for regulation by self-interested regulators.

Read More

The Court can Strike a Blow for Occupational Freedom

Next month the Supreme Court will consider an antitrust case that pits federalism against occupational freedom.   Over the last decade, individuals and companies who are not practicing dentists have begun offering teeth whitening services. In North Carolina a state board has told them to desist. What makes the case interesting under antitrust law is that the substantial majority of the board is elected by  dentists and dental hygienists—precisely the groups that stand to lose from this competition. The Federal Trade Commission challenged their action as a restraint of trade and the Fourth Circuit Court of Appeals sustained its decision.

Read More

Peter Huber May Save Your Life

Peter Huber’s The Cure in the Code  is likely the best nonfiction book in years if quality is measured by the potential to improve  important social policy. Huber compellingly shows how twenty-first century medicine can lengthen life and improve its quality, if only we can get rid of the twentieth century mindset of government control at the FDA and in the Obama administration.   Huber does not write as a political polemicist, but as scientist, demonstrating that the model of medical treatment and discovery on which current law rests does not comport with the revolutionary nature of modern molecular and genomic medicine.

Read More

The New Old Nobility

Aristocrats in the eighteenth and nineteenth centuries held tradesmen in contempt.  Although aristocrats recognized that businessmen (and they were almost entirely men) provided a few useful services, they also saw merchants as money grubbers who lacked both an appreciation for the higher things in life and insight into the rural lower class that lived near aristocratic estates. As a result there was general agreement among the high born that the business class should not enjoy an equal share in setting the political and social norms of the nation.

Aristocrats tried to enforce the distinction between themselves and those in trade in various ways. The Court around the monarch was their preserve.  The families of peers married largely among themselves. They jealously guarded the prerogatives of the House of Lords. And they believed all such exclusions were in the interest of the nobility of the nation, not just the nobles themselves.

When academics and the press write in favor of regulating campaign contributions and outside expenditures, they remind me of nothing so much that attitude of the nobility of Old England.

Read More

The Conflict between Obama’s Immigration and Economic Policies

President Obama would like to legalize the vast majority of immigrants who came into this nation illegally. Indeed, his commitment is so strong that he appears to be considering suspending deportation and giving work authorization to a large number of them this fall. But the President’s immigration policy is in tension with his economic policy.  Labor market restrictions and other burdens on companies – imposed and proposed – make it less likely that these immigrants, most of whom are relatively unskilled, will be able to find steady work.  As a result, they are less likely to be assimilated into American society—a harmful result not only for immigrants but also for the rest of us.

For instance, raising the minimum wage makes it harder for the least skilled workers to find jobs, particularly in age when it is increasingly possible to substitute technology for unskilled labor. The President’s advocacy of a much higher national minimum wage is especially harmful.  Many of the immigrants live in low cost jurisdictions, like Texas, where the distorting effects of a high minimum wage are the likely to be greatest.  The disproportionate effect on low-cost-of-living states is no accident. The President was elected largely by states with higher costs of living, where the additional costs often stem from onerous regulations.  These states want a national minimum wage to stem competition from lower cost jurisdictions.

Read More

The Constitution as Law Nested in Other Law

I am late to the party discussing whether the Constitution is best understand through the prism of “popular” or “elite” meanings.  There have already been fine contributions by Ilya Somin, Timothy Sandefur, Mike Ramsey and Mike Rappaport.

As Mike Rappaport has noted, he and I believe the Constitution is a legal document and thus legal rules will tell us how to determine meaning, including what degree we should look to evidence from popular as opposed to more technical meanings. I just wanted to add that there is substantial evidence from the Constitution itself that is was to be interpreted with legal rules. In that sense, it often cannot be understood without an elite sensibility, assuming we understand lawyers to be elites.

As we note in our article, Original Methods Originalism: a New Theory of Interpretation and the Case Against Construction:

The Constitution defines itself as the “supreme Law of the Land.” The fact that the Constitution was a legal document was not simply left to implication by the enactors but was set forth explicitly in the Constitution itself.

There are also specific indications in the text of the Constitution that the document would be interpreted according to legal rules. We provide some examples in our article. I want to add one more.

Read More