Judge Douglas H. Ginsburg: ‘I Don’t Think We’ve Had Any [Constitutional] Crises in My Lifetime”

Judge Douglas H. Ginsburg: ‘I Don’t Think We’ve Had Any [Constitutional] Crises in My Lifetime”


No civilized person wants to live in a society without a lot of privacy in it. Supreme Court nominee Robert Bork’s 1987 confirmation hearings changed everything— maybe forever. According to lawyer and Supreme Court blogger Tom Goldstein, “because they legitimize the scorched earth ideological wars that have since become the norm.” After the Senate rejected Bork, President Reagan turned to a 41 year old judge named Douglas H Ginsburg, a recent appointee to the Court of Appeals for D.C. who, unlike Bork, didn’t have a long judicial record for the Senate to pick over. It wasn’t to be. Yesterday the nominee for the U.S. Supreme Court admitted he smoked marijuana once in the 1960s and a few times in the 70’s that led to talk with drawl. I have today asked President Reagan not to forward my nomination to the Supreme Court. Ginsburg withdrew his name for consideration and Justice Anthony Kennedy ended up filling the vacancy. Over the next three decades, Judge Ginsburg built a reputation as one of the most influential and principled champions of originalism, a legal theory that emphasizes close adherence to the text of the law, and the explicit intentions of the legislators at the time laws are passed. Now a senior judge on the D.C. Circuit Court of Appeals, and a professor at George Mason University’s Law School, Ginsburg stars in the forthcoming PBS series, A More or Less Perfect Union,” his personal exploration of the history and future of the Constitution in American life. These documents are the charters of freedom and freedom is what the United States is all about. The Constitution is really perhaps the greatest secular document ever written. We don’t have a religion, you don’t have an ethnicity, we have a Constitution. It’s the law of laws. It’s idiot-proof and we
have tested that over and over again. I sat down with Ginsberg to discuss his
new show and its companion book, “Why the Impeachment Proceedings Against Donald Trump are in No Way a Constitutional Crisis,” his opinions of Neil Gorsuch and Brett Kavanaugh, whether it’s possible to rein in the administrative state, and why he has never regretted pulling his name for the Supreme Court 32 years ago. Douglas Ginsburg, thanks for talking to Reason. Glad to be here. Let’s talk about “A More or Less Perfect Union,” a personal exploration this is your
statement and about the Constitution what’s the controlling idea or the main
threat running through the series well it’s that the history of the
Constitution has been one of fits and starts in extending Liberty to more and
more people freedoms and protecting them fits and starts and occasional reversals
sometimes enormous reversals and the liberties that are protected by our
Constitution are fragile and easily lost what’s an example of you know a moment
of reversal and a fragile Liberty that was lost or or you think is most
imperiled right well though we’re the most extreme example of reversal and it
was the Dred Scott decision in which the Supreme Court made up a right to own
slaves and made it impossible for a former slave ever to become a citizen
which could only have expedited the course towards civil war and it was
totally fanciful I mean that when the Supreme Court as either excised
provisions from the Constitution or supplemented new ones of its own making
the results are not good the Constitution is better left as it was as
it was written today we see speakers being intimidated disinvited or shouted
down on campuses including public universities which are subject to the
Constitution and that’s that’s a very dangerous trend would you say just
speaking about the First Amendment or at which I guess it you know it’s both the
right of assembly but then also obviously free speech is our kind of
understanding of it now or what’s what’s imperiled that’s actually a fairly
recent understanding of the First Amendment of I mean free speech really
kind of broad-based going back to maybe the 50s or 60s where I mean there were
books that were censored politicians could sue newspapers for defamation
things like that well their First Amendment didn’t really
have its debut in the Supreme Court until the first world war and the Red
Scare the their suppression through the post office of magazines on the
left-wing magazines and that sort of thing so it did start a bit awkwardly in
the first few instances actually the censorship was upheld but rather quickly
became the most important assurance of our democracy that that we have and it
kept on growing you’re right that even in the 50s there were cases involving
local censorship indeed even later on for obscenity or pornography and but the
Supreme Court has really made it now I would say impossible to sanction someone
for speech or writing of any sort other than possibly graphics and I think
that’s a great thing do you feel an added sense of urgency to all of this
right now I mean is it is it because you’re at a certain point in your life
or do that you’re worried about the stuff going away or do you think the
country is actually in a perilous state well the country is always in a perilous
state or at least the Constitution is because liberties are inherently fragile
the normal state of human beings is not to be prosperous and and free the way we
are and once lost those things are very very hard to regain so there have been
other times in our history which were more perilous perhaps but it’s always a
concern always should be a concern and as I mentioned the example of what’s
going on now with with free speech that’s one but our politics have
similarly become censorious and divisive in a way that is not healthy for the
Constitution you are interested in in the legal doctrine called originalism
what is that and why is it so important well it’s a very simple proposition we
were given a written constitution and as Chief Justice Marshall said in
1803 the virtue of that is one can hold up a law or an executive action to the
Constitution and determine whether it was authorized because all of the powers
are listed there and we have pampered me we have with the supreme court’s
permission approval drifted very far from the Constitution we were given the
legislature the Congress has delegated enormous amounts of power to the
executive through creating agencies that are given a very broad mandate to
regulate quote in the public interest close quote to achieve clean water or
clean air or whatever the goal so the the they escape responsibility they have
this broad delegation and when things are inevitably made hard for some
portion of the citizenry and they want relief they write to their congressman
and the congressman says well I’ll intervene with the agency I’ll write
them a letter so they get the benefit of saying I voted for clean air and then
later on I helped you when your factory was in trouble this is not so yes so the
way the root of the issue which is the abrogation or abnegation of
responsibility by Congress to actually pass legislation that defines agents so
the agencies enacted in the last Congress 3100 and some regulations that
have the force of law and the Congress passed 118 as many laws so 18 out of
every 19 laws was basically passed by an agency not by democratically elected
members of the Congress not subject to bicameralism not subject to even
presidential signature so is originalism fundamentally about the administrative
state or well it’s certainly it’s certainly true that the administrative
state could not exist in the way that it does if we were true to the Constitution
I mean you’re one of the kind of scholars and I you know I guess both
architects but also proponents and practitioners of original
you know through your rulings on the on the court as well as your writings as a
law professor and scholar you know when did originalism start as a school of
thought and do youth has it been successful because in many ways it has
been I mean you guys matter in in legal discourse in a way that nobody was
talking about this 20 30 40 years ago so when did it start and is it working
there were earlier outcroppings and among academic lawyers but the real
demarcation I would say was in 1985 or 1984 when Attorney General Meese Akos 85
spoke to the American Bar Association and gave a talk called a jurisprudence
of original intent and justice Brennan answered that with an article in the
Georgetown Law Review talking about a living Constitution now original intent
was quickly realized I think that we don’t know what people intend we know
what they wrote and so it’s an original meaning not in public meeting what
people understood when they ratified the Constitution so the original meaning
versus a living Constitution what makes a Constitution living well what they
mean but justice Brennan meant with scholars since then mean is that it’s
quite adaptable by of course five out of nine justices of the Supreme Court to
meet the needs of their perceived needs of the moment and originalism is saying
adhere to the Constitution it can be amended if the if the contemporary needs
really cannot be met but the principles that are there are actually enduring and
are sufficient and I think almost every instance so you know in one of the
conversations that’s going on or problems that is gonna be faced in the
courts is having to do with anti-discrimination statutes that were
passed in the 60s saying you can’t discriminate against people based on
gender on religion on race it’s actually so sex okay sex yeah thank you yeah well
that’s important because what I was going to say is that now
you know one of the issues is should sexual orientation which nobody was
really thinking about back then should that be covered by anti-discrimination
statutes and with that from an originalist point of view would that
require a new law being written or is that seen as okay that’s kind of
embedded in the original meaning of what was passed well as to whether it’s
covered by the current statutes that’s something that might have welcomed
before my court I really shouldn’t address that as to as
to whether it should be and that at worst that would require another statute
it certainly isn’t a constitutional requirement to use you do you think I’m
one of the reasons why some people push back against originalism is I mean it
really does limit the power of the government you know whether it’s a
bureaucracy or Congress or whatever to just say oh now well we don’t have to
pass a new law we’ll just start doing that is part of the reason why people
push back on originalism is it would require people in Congress right now on
whatever the issue is to say yes we should be doing this or that and they
just want to escape responsibility well certainly that’s why a member of
Congress would push back because it’s lovely it being able to say I voted for
clean air and not have to take responsibility for the actual
consequences and I think there’s a misconception among others not elected
officials that that originalism would somehow leave some people unprotected by
the Constitution I mean that’s we’re not talking about a constitution that was
never amended we had the Civil War amendments which protect not only the
former slaves but everyone from racial discrimination it says persons it
doesn’t say all men are created equal it’s persons now that it still leaves
room for it for the Supreme Court to say in what dimensions is equal treatment
required because things that our difference that can be can be treated
differently but that is just not a not a problem with originalism is originalism
inherently libertarian sense that it restricts the power of the
arbitrary power of the state or well we might agree is the arbitrary power of
the state it’s inherently libertarian to the the framers set out to protect some
liberties and the original Constitution and the Bill of Rights that were quickly
added and the Civil War amendments and other amendments protect those liberties
and embellishing that can only diminish them what is your sense you know in
talking about kind of the administrative state or the willingness of Congress to
just say okay you go you know we’re gonna pass a very we’re gonna pass a law
in favor of clean air you guys go figure it out Donald Trump Steve ban and his
former adviser said famously that Donald Trump wanted to deconstruct the
administrative state and yet at the same time I mean which in a way takes power
away from the executive branch because it’s like no Congress really is calling
the shots here at the same time that Donald Trump seems to be a critic of the
administrative state he also embodies a kind of imperial presidency it has he
been good in terms of winnowing down the administrative state first let me say
that the pen the Congress created to the extent we have an imperial presidency
it’s because of delegations by the Congress President Nixon was actually
within the law when he imposed wage and price controls on the entire country for
a brief period of time President Trump was in within the law when he imposed
tariffs the Congress delegated these huge authorities probably thinking they
would be used only in a true emergency which is not what’s happened that’s a
problem of the another problem of this constant delegation of authority and
escaping responsibility consider the Iran deal remember when President Obama
entered into this agreement with Iran did you hear any senators saying wait a
minute that’s a treaty we ought to be voting on that no I didn’t I don’t
recall anybody that’s because it’s easier for them to either agree with it
or nitpick or say well there’s nothing we can do about it the rounding out
their text it you won’t see I suppose so but you know they don’t they didn’t
stand up and say we need to vote on this one way or the other
do you feel and I’m just gonna make you uncomfortable as I can obviously you’re
very skilled at not being uncomfortable but do you think Trump’s Supreme Court
pick so far Neil Gorsuch and Brett Kavanaugh are
they are they good for your vision of the Constitution I think they are they
are likely to be I think we will be true to the to the text of the Constitution
Neil was a student of mine and of course at Harvard and Brett was my colleague
for 12 years on the court I’ve worked with him in a lot of things they’re both
very scholarly I think they’re both committed to originalism I certainly
hope so Justice Scalia was although he called
himself a faint-hearted originalist and did depart and an occasion or two but
that remains to be seen how with it whether we have the others again right
of growing and when you’re on the Supreme Court right and all sorts of
weird and wonderful ways well the growing seems to be always a tropism
pulling to the left and so that’s called growth by the new york times but it
might be called decadence by you know by someone else Brett Kavanaugh as your
colleague do you have any reason to question his his version of events about
sexual harassment I came out in his hearing I have no reason to doubt that
yeah here is a process question we want the
law to be transparent and known and all of that do you think as a matter of
practice Donald Trump did something that was kind of rare for presidents and that
he put out a public shortlist of people that he was considering for the Supreme
Court independent of who’s on that list or whatever is that a good idea or a bad
idea as far as I know it was the first time any presidential candidate has done
that and insofar as it informed voters about what they’re getting I can hardly
think it’s anything but a good idea presidential candidates make all sorts
of promises on which they can’t deliver and one of the things the president can
do is choose a point he’s not just for the Supreme Court or the courts
whole but for the administrative agencies for the departments that are
directly in the cabinet and directly report to the president and the more
people know about what the president-elect is actually going to do
I think the more informed their voting Congress is refusing to take
responsibility for a lot of what it does right the impeachment process is
something different than that and again this is independent of the particular x’
we throw around the idea that there’s a constitutional crisis always I mean that
gets bandied about a lot whenever anybody feels like their vision of
whatever they want America to be isn’t isn’t being pursued or followed does the
impeachment process as it’s kind of rolling out right now does that worry
you at all in terms of serious constitutional problems or is it
proceeding according to the way that it should be doing first of all I say it
seems that in recent years the United States is a country without problems it
has only crises if everything is inflated into a crisis by the news media
in fact I don’t think we’ve had any crises in in my lifetime as for the the
current events there are precedents about how this proceedings should be
handled and there’s a dispute now between the parties I guess in the
Congress as to whether those precedents are being followed or not that’s not
going to be justiciable it’s not going to come before a court and I certainly
shouldn’t be gratuitous Leo pining on it right yeah but if it were to come before
the court again I wouldn’t speak to it okay I thought it could I could have to
address it in court but it’s a it’s a dispute between political branches do
you you know as as somebody who is against who is generally in favor of
restraining government or and also the executive or how about preserving
Liberty okay very good that’s it’s a positive way of saying it right
when you look at the presidents who have been who have faced impeachment
proceedings Nixon resigned before he was technically impeach but it was in the
cards Clinton obviously happened Trump now it may or may not we don’t know if
it’s going to actually reach fruition but the idea
when when President Trump says or a president says to Congress I’m not going
to give you the information the documents I’m not going to cooperate
with something is that problematic I actually do have a case on that okay so
you’re seven members of the House Oversight Committee are seeking
documents from an executive agency because they would reflect on the
president right and is this the taxes tax returns or no it has to do with the
hotel okay they want some information right if the president the
administration has not given it the cases and argued and we’re now it’s
under consider because the Second Circuit just rule or is going to have
just ruled on a case about whether or not
Trump’s lawyers have to turn over tax documents related to questions about
funding of the 2016 campaign okay okay all right well different circle you must
be really hard when you don’t want to order at dinner you can just say you
know I might have a case that rolls in that say what I want I’m not sure
whether it’s the Second Circuit or the state court in New York you’re not
worried that right now any any thing going on in America you know in in DC
which is a very hyperbolic you know polarized environment there are real
controversies and wrote disagreements about what should be being done but
nothing has risen to the level of a true constitutional crisis well that’s right
and when it did when we had the president nixon’s resistance to turning
over and they’re finally turning over the tapes the crisis is you know is
resolved I mean what people are arguing about for the most part is about the law
right what is the law require as long as we’re arguing about the law we’re not in
a crisis because everyone’s got a view but ultimately they’re trying to follow
or invoke the law why do you think Congress or was there a moment where
Congress just said you know what we’re not going to do our job we’re gonna push
it over someplace else or was that a gradual and kind of
intermittent process and I guess as importantly how do we how do
we change that well the the real discontinuity occurred in the New Deal
when the Congress passed one after another regulatory statute bringing
large sectors of the economy under federal regulation I mean agriculture
transportation communication finance transportation and assigned to all the
regulations who these new newly created agencies and the Supreme Court upheld
that and so the that set the precedent and the Congress has continued to do
that in the 1970s it created under President Nixon created a number of
statutes that regulate not the economy but risk so the Consumer Product Safety
Commission the Occupational Safety and Health Act the Mine Safety and Health
Act the Traffic Safety Act Highway Safety Act rather the Environmental
Protection Act so these are our different in kind but they’re similar in
that there’s this huge delegation of authority the economic regulations been
almost entirely repealed it was realized that that was it was contrary to the
well being of the public it was anti-consumer and that’s something I’ve
heard you speak recently about that’s one of the great things about the D
regulations in the 70s is that you had people like Ralph Nader and Ted Kennedy
along with kind of right-wing free-market conservatives all saying
yeah this stuff isn’t working right yeah I mean the back basically it was
academics who demonstrated it empirically it just wasn’t working and
what we have now with risk regulation is a much more challenging matter because
you can’t just repeal it I mean there are real hazards out there then they
have to be dealt with and the question is how how to do it how best to do it
and with the environment is the classic example the problem is for the most part
absence of property rights and where the government can create property rights
the right to emit a certain quantity of pollution and no more and those can be
traded back and forth the problem gets solved in a much more efficient way than
saying you have to use this particular technology or equipment or what
are you worried in a broader sense that you know property rights are good
markets are good but right now we’re living in a moment where markets are
held in a pretty low standing by a lot of people partly because of the 2008
financial crisis partly because of a resurgence of a belief in socialism that
capitalism is kind of red and tooth and claw and it’s a nasty business and that
we have enough wealth that we can share is it is it a bad time if if markets are
the solution to many risk factors particularly environmental pollution is
this like the worst possible time to be kind of arguing in favor of markets for
remedy well it’s probably the most important time to be doing so generation
has grown up that thinks that all of this prosperity grows on trees it
doesn’t it had to be created in an environment that nurtured it and one of
economic freedom that’s the only way in which that can happen we know that at
least those of us who have witnessed what happened with socialism and it’s
happening again it’s happening in Venezuela and other places and
impoverishes and enslaved people and young people just have not lived through
that and don’t seem to be studying it in the serious way so it’s important that
they be rescued from that ignorant and to see that the the only solution is one
in which we have free markets and free people thinking about the the recent
past really I mean the end of communism you had mentioned the argument between
ed meese and justice brennan Nevada you know original intent versus living
Constitution you of course played a part in this history as well of a
hyperpolarized kind of political environment in 1987 you were nominated
to the Supreme Court not quite the president said he wouldn’t have me I
felt a yes yes okay that will get but in Robert Bork have been nominated gone
through a very fractious confirmation process was ultimately voted it was not
voted in or he was not his but the vote didn’t go his way you were nominated or
rather your name was put forward and then it came out
you are you openly admitted that you had smoked marijuana and that caused a just
a kind of freak app didn’t it and and kind of the way people talked about
things well very briefly and that it turned out that a lot of members of the
Senate and others came forward and said well I did that too and it was a while
ago as it was for me yeah there was the temper at the times and all is forgiven
so before we get to the larger legal framework what what does it say is it a
good thing in American society now that you know the three president you know
President Clinton Bush and Obama all have openly admitted to various kinds of
illicit drug use and whatnot and it hasn’t just it didn’t destroy their
careers they may not have been very good presidents but nobody was blaming it on
drugs are we in a better place in terms of discussion of kind of lifestyle
choices drug use things like that than we were 35 years ago I don’t know certainly I certainly don’t think we’re
at a better place in terms of of so many people using drugs right it’s at what do
you mean by that well apparently there are a lot of people who are using
illegal drugs that are harmful to their health and and and you know in states
that have legalized marijuana for one or either for medical years or more that’s
inconsistent with federal law I don’t know how an industry can grow can grow
up where if the federal government could start enforcing that law any day seem
like a rather perilous proposition I well I think that it hurts
the industry certainly right because it it can be wiped out
you know overnight are you in favor of reducing federal prohibitions on things
like marijuana cultivation and distribution and possession and states
that have made it legal well it’s that turns out to be a more complex question
than I had thought perhaps
many years ago my understanding is now that because marijuana legalized in many
of the western states the source producers have switched to selling hard
drugs heroin in particular because they’ve lost much of their or at least
their profits gone out of the marijuana well that’s not a happy consequence we
were certainly unanticipated no one that I know ever anticipated that but if you
look so if you look at the net consequences you have to take that into
into effect into account as well more people being addicted to heroin not good
when it comes to the larger kind of social political legal framework or way
that we talk about stuff the vorc hearings were some people say that was
the moment where America really in politics became hyperpolarized hyper
hyper tribe tribalistic or that was the starting point do you agree with that I
agree with it insofar as we’re talking about Supreme Court nominations that had
never been handled like that before there wasn’t a there wasn’t a hearing
the nominee wasn’t called to Washington to appear before committee until I think
sometime in the 1940s and when I think it was Justice frankfurter came down
he’d sat outside the committee room waited and then was told he could go
home so and that was before the era of television of course but the Bork
hearings really polarized the the process and in a way that each each of
the parties in turn seems to think they have to retaliate and it just escalates
and it’s become the most recent round it was just I can’t imagine how it could
get any worse but it likely will right well X because with each replacement it
seems like this stakes get higher and well people will we’ll try to think of
something even worse than accusing a nominee of rape you know when it turns
out to be fictitious now you by the way do you know that one
of the accusers said she’s just one of the attention hmm yeah so do you
withdraw do you regret withdrawing your name from
consideration not really I’ve had a good career on the circuit I I’d know I’ve
known almost all of the justices since then most of them pretty well and I
wouldn’t want the security concerns that they’ve have it’s really unfortunate
particularly the last 20 years of 18 years that that they have to be
concerned about security like that do you see that is partly reflecting
Congress again kind of withdrawing from doing what it’s supposed to be doing I
mean if Congress isn’t actually passing laws it seems you know the Supreme Court
becomes more important in many ways I think the Supreme Court became more
important because it discarded fidelity to the text and to started engaging in
moral philosophy instead of law and when you have 5-4 decisions on highly
divisive moral questions for which there is not a textual good textual warrant it
makes it very divisive what’s a good example of of that decision at that type
of decision well Roe versus Wade obergefell they get a marriage case I
don’t disagree necessarily with those outcomes but they’re not federal within
the federal authority so what should have happened saying in roe v wade well
i think about 12 state this was the height of the women’s movement her first
wave about 12 states I think had changed their laws a few probably had considered
a knot on the rest were yet to do so got to consider and decide what to do
and similarly with with same-sex marriage the states were going along the
Iowa Supreme Court held that it was a matter of a constitutional right under
the Iowa Constitution and at the next election I think three of the four
judges in that majority were not re-elected because the people there
disagreed with that it was coming out different ways in different states and
that was not an untenable matter but most important it was a process that was
legitimate there’s a lovely book by Marianne
Glendon called divorce and abortion or abortion divorce in Western law and it’s
a comparative study of 23 countries and 22 countries resolved the abortion
matter by statute and one by judicial Fiat and you don’t see demonstrations
all over the place in those 22 countries because when there’s a legislative
resolution it’s not somebody wins and somebody loses which it is in court its
compromise is necessary can I ask from a libertarian perspective
either from my love my understanding of libertarian perspective we wouldn’t say
or you know in a way you’re saying okay these really tough moral issues or
cultural issues are being worked out abortion gay married or same-sex
marriage and you know part of what you’re saying is that it’ll be worked
out through legislatures so we need to give it time
to kind of find its way but then you know you think about if it was free
speech you wouldn’t say well you know what Iowa wants to ban certain types of
free speech well you know we’ll let that go because you can you can move to
Minnesota and have free speech or something but it’s not because of
federalism and being able to move from one state to another it’s because free
speech is specifically protected so it is I mean when when things are
enumerated they’re enumerated for a written constitution you know that
question so something like abortion something like marriage these just don’t
right I mean they are not something that should be decided by the federal
judiciary for the most part not decided on the merits no they should have been
should’ve said this is this is not a matter to which our Constitution speaks
the Federal Constitution go home and deal with your state legislature what or
the state courts how would I and I think we have a sense of it but how would if
if you had been on the Supreme Court how would a Ginsburg court have you know
have been different than the one that we’ve that we’ve encountered for the
past you know three or four decades well I think I’ve just told you at least
a couple of important examples here’s some here’s another one about it about
ten years ago in a case called kylo against New London the city decided to
condemn property in order to turn it over to a developer for revitalization
of the downtown area or the neighborhood and missus kilo didn’t want her property
taken for that it went to the Supreme Court and the court the the relevant
provision of the Constitution says the property may be taken for a public use
with just compensation and a public use was pretty well understood that meant a
highway a post office a school of public use and the Supreme Court said well this
is a public purpose that’s good enough it’s a public purpose we know that
because the public body this town council voted for it
well that’s rewriting the Constitution it doesn’t say a public purpose and
that’s an interesting decision because it’s not simply you know kind of
conservative versus liberal say about 40 states very quickly either by statute or
Court decision said we’re not doing that so we wouldn’t if your property is
secure but so that might not have happened or it might not have had to
have happened had you been on the Supreme well I certainly wouldn’t have
agreed with it I don’t remember for his 5’4 I think it probably was you know to
bring it back to your forthcoming series on the Constitution Oh more or less
perfect Union personal discovery part of what’s interesting is that you talk to a
lot of different types of people both you know kind of professional thinkers
on the Constitution but then regular people what you know in going through
that you know are you are you optimistic that you know that we’re in pretty good
shape or are you really like oh my god this is like we’re just screwed here
well I wouldn’t have made the effort if I thought it was goodness and I wouldn’t
have made the effort if I thought it was needless right so I think there is I
want the public at least the public television on a part of the public to be
aware of a debate that’s extremely important
to our Republic it’s a debate that occurs in law schools and on courts and
need more public engagement more public awareness I don’t think the public would
support some of the creativity that they’re fact that they’re getting from
the courts are some of the lassitude from the legislature if they were more
familiar with it you know what is it beyond your series is there a go to text
or book or document or movie that you know thick I’m glad you asked that
there’s a companion volume called voices of our Republic which has things that
people have written about the Constitution or said mostly for the book
but some of them are a few historical quotations justice O’Connor
Justice Ginsburg Justice Gorsuch and and I think a couple of others have all
contributed to the book with their thoughts and there’s some material about
the making of the series in there as well
so we’re optimistic that that will help get the the message across just as the
TV show does that this is an important topic as Randy Barnett says in the show
the only living Constitution is one that’s followed but that names been
appropriated well we will leave it there talking with Judge Douglas Ginsberg
thank you so much thank you an extra heavy appreciate it for a reason I’m
Nick Gillespie

65 Comments on "Judge Douglas H. Ginsburg: ‘I Don’t Think We’ve Had Any [Constitutional] Crises in My Lifetime”"


  1. I have no respect for judges. They don't know how to read. The 1st amendment says that "Congress shall make no law…abridging the freedom of speech or of the press"

    How much do you want to bet that this "originalist" jackass supports laws against sharing military secrets or copyright law?

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  2. And yet there is hate speech law taken to ridiculous level of banality. The more you let people show their hate the more they isolate themselves with it. It's only when lefties start stifling the free speech of hate groups that they gain attention and that leads to the media spreading their hate for them. Thats not really a problem for them since it was the left that started the Kkk to begin with.

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  3. Please call this number as many times as you can. They tried to scam me by saying my daughter was in a car crash. That scam. They still answer the number as legal aid. Please call and call and call until they disconnect the line and are unable to scam others. 833-251-9265. Give them hell.

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  4. Uhuh, the Patriot Act is totally not a constitutional crisis at all. Must be nice living under a rock for a lifetime.

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  5. We've had plenty, just nobody has fought against them. See NSA, Prism, Iraq, creeping gun regulations, etc…

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  6. Many many liberties and freedoms have been lost and are currently being lost. Constant ever present surveillance of your life and you data being collected and sold are a big one. Government never stopped growing.

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  7. Most of the non-military part of the government has no other purpose but to seize power from the individual states. At one point the non-military part of Federal Governments was less than 10% of it's total spending in a peacetime training cadre only setting. Enforcement and investigation was entirely the purview of the US Marshals Office. Now we have between 5 and 25 agencies handling the same items and the Military is about a third of the total spending and at constant readiness. Some of them are enforcing policies and levying fines that no one voted on, and no one advertises. You may have committed 3 felonies today without your knowledge.

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  8. Since 1913 …America has been destroyed
    Prescot Bush becomes a Senator after being a Traitor
    Trying to over-throw the Government to establish a Fascist Dictatorship

    JFK CIA Assasination + 9-11 + ISIS + Censorship + Epstein's Pedo Web

    Monsanto spraying a toxin on
    Food so millions of Americans get cancer

    7 vaccines in 1970's
    Now over 50 vaccines

    No more an actual national border

    Elite have
    Destroyed America
    $ Trillions in wages given to China

    Making
    China rich + powerful
    As Americans suffer poverty

    $22 Trillion Debt
    Will eventually be $100 Trillion
    To bankrupt America ..so as to grab all the Federal Lands

    Little Bank Mafia
    will then own almost
    30% of the American Home Land

    Now, I must admit
    I am a Canadian …in Canada

    But since I am a Nice Canadian …I care about America

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  9. We've never before had a Deer Leader who hates a majority of Americans, hates on California because it doesn't like its politics, loves Putin/Erdogan/Kim, believes the press is fake news and the enemy of the people, thinks congress has no right to investigate him, etc. There's no crisis in the darkest of terms, but can you imagine any president actually arguing before the courts the he is immune from even criminal investigation?

    How about Congress that gives the power to declare war over to the executives? Or a Congress that gives the Executive branch the power to regulate, in which unelected, non-legislative branch personnel create rules, enforce the rules and adjudicate the rules? Or a Congress that refuses to balance it's budget, ensuring taxation without representation for all in the future? Or one that conflates "common good" with handouts to individuals; wars with other nations that never attacked it; permanently standing armies in foreign countries; mass incarceration coupled with loss of voting rights for life; mass surveillance and collection of our communications; TSA searches; border patrols 100 miles inland asking for papers?

    Forcing people to purchase private health insurance is another example of a constitutional crisis in that it suggests that government can force you to buy things you don't want from private enterprises that help draft these laws with corrupted donor dollars. There simply is no constitutional right to force citizens to purchase anything from private enterprise. They can tax and give us benefits, but they cannot force us to buy from a business just to be a citizen.

    To make alcohol illegal, a constitutional amendment was required; not so for "Schedule" of drugs where they are made illegal without even a vote.

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  10. Patriot act,stop and frisk laws, warrantless searches,Child protective services,adult protective services,red flag laws. Makes me wonder if he smoked more than weed only on a few occasions…….WTF!!!!!!

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  11. If belief in constitution isn't a religion, then can anyone explain what, other than the written claim it applies to us, proves that it applies? If it's backed up by a mere claim that it's true, isn't it just the same as Bible or any other "sacred" writing? Makes sense unless you ask for the evidence…

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  12. "everything is inflated into a crisis by the media"
    that's because the hysterical media is both hysterical, and an enemy of the people.
    As the audio visual arm of the DNC, they're no longer fulfilling the purpose of the 4th estate anymore than Pravda does in Russia.
    They're partisan political hacks who do what they're told by the DNC. Their hysterical squealing and mewling about how we're all going to die, and it's the end of the world has turned those NPC's who ONLY watch the hysterical media into panicked deranged mental wrecks.

    They are the enemies of the people.

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  13. The Constitution was written for white land owning men. It’s ridiculous to think that we shouldn’t update it.

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  14. GWB was installed by the Supreme Court rather than letting the votes be counted. Pretty big constitutional crisis right there.

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  15. Reason… Living in a fucking fantasy world….

    Remember what Reason was like when Obama was in office?….

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  16. Highwaymen in uniforms confiscating cash from poker players driving out of Vegas because they're an easy target then tying their money up in court at their legal expense may be considered unconstitutional.
    Picking people up at random while bicycling under the excuse they're eyes are wandering over the neighbourhood even though they're dressed like well off millennials and not likely casing the area for a quick score then searching their belongings without consent maybe considered a violation.

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  17. Any law against gun ownership of any kind, The Patriot Act, Forced government licensing (including driver's licenses), The war on drugs, Centralized banking, The Income Tax, etc etc…

    All of these things are government crimes against us, the people who are supposed to be free…

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  18. There hasn't been any constitutional crises because the interpretation has been so fluid and adaptable that the paper constitution has not served any particular barrier to the federal government's actions. There might have been some decisions made on originalist grounds, but they are embedded in a body of stare decisis and living constitution decisions that render US constitional law a confusing morass.

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  19. Did I hear any Senator saying “Wait this Iran deal is a treaty we should be voting on this!”??? Why yes, yes I did hear MY senator RAND PAUL say that exact thing!

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  20. The controversy over marijuana use is always cited as the reason for his withdrawal. But at just about the same time that issue broke, it was also reported that Judge Ginsburg's wife, a doctor, had performed an abortion (or abortions) as, I believe, an intern. I'm going from memory here. It is my understanding that many Republican senators lost confidence in Ginsburg as a reliable anti-Roe vote and that combined with the marijuana use (that didn't exactly reassure conservative senators as to his conservative bona fides made his confirmation doubtful. Ironically, I think those senators would have been much much happier with Ginsburg than Kennedy since Kennedy was the 5th vote to preserve Roe.

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  21. We the people have to know th difference between lawful and legal….two
    different things…we also have to know our so called governement
    is A CORPORATION….A corpoaration does not make laws. They
    creat ordinances, regulations, and stautues…none that deals will
    people BUT their employes. MOST of us believe the USA corpoartion's
    by laws apply to us today. Not our fault we were taught to believe this.
    Now we are realizing the damage done to control all of us.

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  22. OK this guy said that marijuana legalization causes more drug dealers to sell heroin therefore creating more heroin addicts. That is the single most retarded thing I've ever heard come out of a human's mouth. All credibility lost.

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  23. The campus is covered… The kids don’t have to agree and can use their own first amendment rights to speak against those people who they disagree with… If the klan or nazis or communists showed up at your school or business would you want them around you at all? This guy needs some common sense…

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  24. This is a continual rosy picture painted by people living in a dream world. They think as long as they walk around insisting the constitution has protected us that it will be so. All the while ignoring the constant attacks on the 1st, 2nd, 5th, and 14th amendments.

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  25. It's scary that this leading proponent of the Constitution does not seem to know that we are not, nor were ever intended to be, a democracy.

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  26. Protecting the public from the greed of Capitalism worked wonders for the common man. Not until Capitalism betrayed America by exporting its economic might to the unregulated, slave labor markets of the Third World, thereby destroying the American MIddle Class, did this originalist garbage stand the slightest chance. This originalist garbage is nothing more than neofascist blaming the progressive 20th Court for the crimes of multibillionaire class. Furthermore, perhaps the most destructive US Supreme Court jurisprudence was written by the Court's "originalist", Justice Scalia only months prior to his mysterious death. Indeed, Scalia's alleged originalist holdings created the conditions that gave us the fool in the White House who is tearing our imperfect union asunder.
    This Appellate Judge and his originalist garbage is not even close to the revolunionary intent of the Founding Fathers. Indeed, both Franklin and Jefferson, who was serving an Ambassadorship during the writing of the Constitution's final draft, openly advocated an entire revision of the Constitution every 20 years or so. The basis for Franklin and Jefferson's position was to adjust the document to the changes in society and the economy time would bring. Their fear was the accumulation of great wealth into the hands of a few oligarchs and the pernicious effects of that concentrated wealth on the freedom, liberty, and rights of the majority. So, this originalist garbage is the opposite of the Founders intent, and the proof of that is the current condition of the American economy and the social redress ion into a divided union that is similar to the conditions that existed just prior to the Civil War. A war allegedly fought to free enslaved human beings, but which was actually fought over the South's loss of representation in Congress and the dominance of the industrial North. If you can't solve a crime, just follow the money.

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  27. Free markets, you're free to bribe any one to make a $, then shut down your competitors, oligarchs don't solve problems.

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  28. Freedom is enshrined in the Constitution, oh, wait you're a hippy or black? Well then fuck liberty, we will make up drug laws and keep you down. We need these wars.

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  29. This is the absolute best thing I've watched in quite a while. It got a little QVC A at the end, but they played it off well.

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  30. Nick! I was waiting for your question about whether the drug schedule is constitutional or not… But you failed to ask it!

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