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March 29, 2012

Spotlight on public law: Prof. John McGinnis

by dan rodriguez

I am pleased to turn the spotlight on our cherished colleague, John McGinnis, who is being named to an endowed professorship — George C. Dix Professorship in Constitutional Law — this spring.

John McGinnis will publish two books in 2013—one on improving our democracy for the future and another on preserving the benefits provided by the past in the form of our Constitution.  The first book, to be published in January of 2013 by Princeton University Press, is entitled Accelerating Democracy: Matching Governance to Technological Change.  Continuous technological innovation driven  by the exponential increase in the power of computers creates a restless world of relentless change.  Accelerating Democracy offers a program to adapt democracy to this new world by placing democracy itself within the domain of information technology.   The book shows how new information technologies, like empiricism, prediction markets and dispersed media, can combine to help solve a problem as old as democracy itself—how to help citizens better evaluate the consequences of their political decisions.   If, as the book recommends,  legal reforms take advantage of these new technologies, we can retain and improve the best of the model of governance we have—a politics that seeks to be informed by expertise and social-scientific knowledge—while shedding the arrogance and insularity of a technocracy.  The essential message is that society’s capacity for learning must be increased to match its pace of change.

The second book, to be published in the fall of 2013 by Harvard University Press and written with Michael Rappaport, is entitled Originalism and Good Constitution. Originalism is undergoing a revival in the academy and this book will be in the thick of the debate.  It offers a new justification for following original meaning, arguing that originalism leads to constitutional interpretations that are likely have good consequences for today.  Its key insight is that our supermajoritarian constitution making process likely leads to the entrenchment of good norms and is better than any other process than can be devised for forming constitutional provisions.     And since constitutional provisions are good by virtue of the consensus support they received, their continued beneficence depends on giving them the meaning that gained the consensus.  The book also shows why this justification leads to a particular kind of originalism—original methods originalism—the view that the Constitution should be interpreted according to the interpretive methods the enactors deemed applicable. Following the original interpretive rules remains faithful to the way enactors would derive meaning, which is part of their understanding of what would make the provisions beneficial.   The book thus argues that original methods originalism  provides a way of resolving ambiguities and vagueness inherent in our fundamental law.

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