North Dakota Law

Updates from the University of North Dakota School of Law.

Professor Michael McGinniss Participates in Academic Colloquium on Authority of Law and the United States Constitution

On April 12 and 13, 2024, Michael McGinniss, Professor of Law and J. Philip Johnson Faculty Fellow and former Dean of UND School of Law, participated as an invited discussant at an academic colloquium in Boston, MA sponsored by the Federalist Society and the Liberty Fund on Authority of Law and the United States Constitution.

The colloquium was conducted over the course of the weekend as a series of informal moderated discussions, composed of 12 invited discussants and one leader/moderator, Georgetown Professor John Hasnas. The invited discussants included six law professors (UND Law Professor McGinniss and others from Harvard, George Mason, Boston, Brooklyn, and incoming to Notre Dame Law Schools), an instructor in philosophy, four law students (from Harvard, Yale, and Chicago), and one lawyer. The moderator and discussants were provided a set of readings–law review articles, book chapters, and other materials–to study in advance of the colloquium that provided its substantive backdrop. The general topic introduction for those materials stated:

The object of this colloquium is for serious thinkers in law, legal philosophy, and legal education to explore how theories of law and its authority affect downstream institutions. It will give special, but not exclusive, focus to questions about the authority of the United States Constitution, which is the locus for much of the broader contemporary debate. That debate goes back millennia, and one theme of the colloquium is to explore how “old” ideas do, or should, set the terms for modern consideration of the nature and purpose of law.

Is the rule of law a good thing? That may seem like an odd question, but it is at the heart of much of modern academic work in law and political theory, as well as a live issue in actual governance. Is law a vital tool for social cooperation and organization, or is it a weapon “for one’s enemies”? If the former, how close does any particular legal order need to come to a specified ideal in order to be legitimate? If the latter, what is gained by calling something “law”? While these questions may seem to some people to be too abstract for serious concern, their answers determine the content of legal education, legal practice, and ultimately social organization.

The sessions of the colloquium focusing on the United States Constitution addressed subjects including the foundations for its authority and “[w]hat is the best response to those who contend that the Constitution is irredeemably tainted or profoundly undemocratic and should either be replaced or subordinated to ordinary politics?); contemporary challenges (e.g., “Can defenders of law and order engage constructively with critiques that treat law as merely a form of politics or a function of power, whether from the left or the right?”); and the authority of original meaning for interpreting the Constitution (“Does the authoritativeness of any given interpretive approach to the Constitution ultimately turn on first principles of political and/or moral theory, such as a commitment to popular sovereignty? What is the strongest argument that the Constitution is, structurally, best suited to an originalist mode of interpretation?”).