Judge Douglas H. Ginsburg: 'I Don't Think We've Had Any [Constitutional] Crises in My Lifetime''
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- Опубликовано: 10 фев 2025
- Legendary jurist and champion of "originalism" who withdrew his name from Supreme Court consideration weighs in on Donald Trump's impeachment, Brett Kavanaugh, Neil Gorsuch, free speech, and his upcoming PBS series "A More or Less Perfect Union."
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Supreme Court nominee Robert Bork's 1987 confirmation hearings "changed everything, maybe forever," according to lawyer and Supreme Court blogger Tom Goldstein, because they "legitimized [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 United States Court of Appeals for the District of Columbia Circuit, who, unlike Bork, didn't have a long judicial record for the Senate to pick over.
It wasn't to be. After admitting that he'd smoked pot once in the 1960s and "on a few occasions in the '70s,"Ginsburg withdrew his name from consideration. 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 DC appellate court 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.
Nick Gillespie sat down with Ginsburg to discuss his new show and its companion book, Voices of Our Republic; why the impeachment proceedings against President 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.
Photo credits:
CreditKen Cedeno/SIPA/Newscom
Oliver Contreras/Sipa USA/Newscom
Music from filmmusic.io
“Lightless Dawn” by Kevin MacLeod (incompetech.com)
License: CC BY (creativecommons...)
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!
If the Iran deal regulated the actions of employees under President Obama's command, then it was legal.
Uhuh, the Patriot Act is totally not a constitutional crisis at all. Must be nice living under a rock for a lifetime.
It's not. It's a terrible law. It arguably violates the constitution, and some courts have arguably ruled incorrectly on it. It's not a total breakdown of constitutional law, though. A "constitutional crisis" is some situation that the constitution provides no remedy for. Throughout history, a true constitutional crisis is only resolved by something EXTRA-constitutional, such as regime change or war.
Yeah "constitutional crisis" does not mean "a bad thing" or a "very bad thing" or even a "end of the world thing", just a "no clear solution" thing.
@@Pants4096 In theory but in practice we all should know that no one in power will ever be willing to let go of their perks. So sure in theory this is not a constitutional crisis because there is a path for repeal but there is the reality that flies in the face of that. There is more to legislation than what is written in books, there is the human factor that needs to be considered as well.
@@Pants4096 Well, that was the language Ginsburg used, but for others, a crisis is any law that violates the constitution but it held not to. Without clear language in the constitution authorizing federal actions, the rights are reserved to the states and the people.
Federal firearms laws are completely unconstitutional, yet still upheld.
No right is absolute just so you know
@@brandonearley9624 Tell that to the militia.
@@W1Robur I don't get it. Which one should I tell?
@@brandonearley9624 The people. Our rights are inalienable and we will defend them.
@@W1Robur Should I tell every one then? That's quite a task!
Legalizing weed is driving up heroin use, what?
yeah the weed wasn't cutting it and now I'm doing hits of crack in between heroin shots
@@theycallme_nightmaster lol
Surprised by Ginsberg stating legalizing cannabis “to be a more complex question than I had thought”. As an originalist, one would expect him to say “it’s not an inalienable right to dictate what sovereign individuals are allowed to consume, so the authority cannot be delegated to government.”
We are a Nation of Law...Benders 🤣
@jcllings nah, they just dont even bother to fuckin write the law 🤣
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.
I wish you would have asked him about 2nd Amendment...and specifically on a ban for AR-15's...
@@sv8497 yea I don't need government permission and they can't stop guns now anyway and I can make my own and no one can stop me and there is a reason the prohibition didnt work and maybe back in the 50s they could have stop guns but not know and more know how to make guns and bullets so the government is a false sense of power and ill make all the ar15 I want
@@executiveorder7146 That is your right, provided it is legal. Just because you can make something has not always made it legal.
“Usually politicians start yelling S/e/l/d/o/n/ constitutional crisis during every..... campaign.”
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.
We would have to actually adhere to the Constitution for there to be a crisis.
Ding Ding Ding this guy BJ Chester hit the bullseye!
oh nooooo he injected mariwannas???!?!?!?
How many bags of marijuana does one have to inject before it becomes a gateway drug?
@@Watcher4187 Just 1, then you're all slumped over, shitting on the sidewalk and voting democrat. Shooting marijuana is _nothing_ to mess around with! 😂
Well, as a jurist, being a marijuana user did present major ethical and bias issues.
There are some assertions in this video about the Constitution that are just flat out wrong
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.
12:10 actually I push back on originalism (at least Scalia’s kind) bc often times the people who champion it are often rabidly religiously conservative. So take the 14th amendment’s equal protection and due process clauses. They’ll say that that provision strictly applies only to matters of race (particularly of black Americans) and to nothing else. So if you have a facially irrational and unequal law, such as homosexual conduct statutes, they’ll still say those are constitutional because that matter wasn’t considered nor tolerable at the time of ratification.
I would rather the text of the constitutional law be observed, not antiquated notions nor ideological/religious agendas.
And I have to disagree with him on Obergefell, again. 5th amendment’s guarantee of liberty and the 14th amendment’s guarantee of equal protection are pretty clear and even the constitution itself recognised that not all rights are or can be enumerated. Those two notions taken in conjunction ought to mean that Obergefell was correctly decided.
Nick! I was waiting for your question about whether the drug schedule is constitutional or not... But you failed to ask it!
Great video, thanks for posting
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.
With those three felonies, a day no law enfarcement officer has an excuse for letting hard criminals run free but they got to have the rabid dogs roam the world so you will 'need' them.
@@Barskor1 Even lawyers and judges can't follow all the laws and regulations we have now. Cops aren't lawyers they only know what they are told by their superiors. For example: in some places cops are allowed to return respect and kindness, in other they are ordered to go out and make their quotas and act like complete a-holes. Half the time the prosecutor is interfering in department matters. You see, the innocent poor can be railroaded while real criminals an afford a decent lawyer. So an ambitious prosecutor wants to fast track any easy wins to get their numbers up. This is supposed to be illegal but no one is allowed to arrest them.
In order to maintain statehood though, the Constitution made it clear there were certain laws that must be followed and that taxation was legal with proper representation. That is why we have 3 separate but equal branches and the reason the House and Senate both have to approve legislation to make it a law.
@@oldrepublican4121 That is why I don’t believe in deferred immunity. We need all citizens to live by the same laws and treated equally under the law regardless of if your attorney is a public defender or Ben Ginsburg.
♥️✝️♥️
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.
He seems to ignore the 9th amendment when it comes to individual rights and talks about enumerated rights like the 1st amendment, yet the 9th amendment was put in to remind people that the enumerated rights aren't the only natural rights people have. If originalism is an excuse to not recognize any rights that aren't enumerated then it does not seem in line with libertarianism.
lots of Ginsburg's surrounding the supreme court.
Yeah, and -bergs and -steins...
America is no longer ex-european, its jooowish
@@rronaldreagan Well, a lot of Jews immigrated from European countries overran by Communism and Fascism.
@@easyenetwork2023 but communism is literally their invention. They have always had a disproportionate role in commie governments....and thebsecond movement you justify them for, is literally a counter movement to their marxist invention from europeans to defend themselves from it
This guy illuminates the gap between the reality on the ground and some illusion born by his generation.
"When did orginalism start?"
.....uhhhh the late 1700s? lol
More... I need more
It’s good to hear an actual scholar of law!
le appeal to authority.
Cyber Lich The constitution is the authority...
@@Lejmej Only when it's actually upheld.
Cyber Lich Then it’s vital to uphold it...
Unfortunately the constitution is not idiot proof. At the end of the day if everyone chooses to ignore the law it doesn't really matter how hypothetically idiot proof the system is. Practice and hypothesis are different animals.
This dude claims that legal weed drives up opium cultivation. Huh?
Well, if cartels and terrorist groups can't make money because everyone grows their own tegridy legally, it's reasonable that they would switch to a different cash crop. However, even if this is true I believe it's still a weak argument against the decriminalization of cannabis.
@@se7enspac3s well that's my guess but if they made it all legal on a small scale it would distroy the cartels and lots of criminals and laws has not stopped any drugs and if that money was used for treatment it would be more effective and even in super max prison you can get any drug you want but yea I think that argument is stupid that weed and heroin and I don't do either of them
@@se7enspac3s The other problem is he used weed while a professor which creates an ethical conflict and possible bias in favor of marijuana legalization. Not to mention, had he been caught using marijuana, he would have been fired:
*The Act of 1871, changed everything, in particular the original July 4, 1776, **_"Constitution for the united states for America"._*
I learned a new word today! YAY en.wikipedia.org/wiki/Bicameralism
i presume Ginsburg voted for Ron Paul..
It is clear he is a libertarian and his documentaries are supported by the Scaif foundation. Very biased in that direction. Reason is a libertarian outlet.
The better Ginsburg
He has a good plan! take heroin(and all drugs) away from the drug dealers... Legalize all drugs!
That won’t make them safer necessarily though.
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...
You are a heretic and apostate to the religion of the State what say you in your defense!?
I disagree with Ginsberg's views as expressed on "A More or Less Perfect Union." He should have been more up-front that he is a libertarian originalist extremist. Commerce is interstate; most products are sold beyond state borders, and pollution does not respect borders. Wasn't interstate commerce what the constitution enabled, as said in your first episode, Mr. Ginsberg? Speech that incites violence is not free; libel laws exist. So freedom of speech is not absolute. It's true that members of antifa broke windows at UC Berkeley to protest a right-wing ideologue's appearance on campus who incites violence, but that does not mean antifa's behavior is legal. But now antifa is blamed by Trump for all the riots it had nothing to do with. Congress passes laws, which require regulations and bureaucracies to carry out. It is not true as you said that once enacted, regulations are not repealed; not by a long shot. We have had 40 years of deregulation under Reagan's neo-liberal rule. Immigrants have rights under asylum laws and equal protection laws. Obama's executive order protected them when the congress did not do its duty. The second amendment would not have prevented Black Codes, unless the blacks were prepared to start a war. Legal action was needed and didn't happen. The Constitution must be interpreted according to the needs of the time; we don't live in the year 1787. That doesn't mean it is a matter of whim; it is a matter of applying the law. Your program is underwritten by Republican and libertarian individuals and groups. Being a Reagan appointee, your views are not liberal, but reactionary.
Paraphrased from Ginsburg: "With marijuana competition the big drug pushers got pushed out of that market into heroin. So we have more heroin addicts." Really? They weren't selling heroin before? And people switched from MJ to heroin cause what? Customer loyalty? For the most part I like Ginsburg but this rationale is like "It's against federal law therefore it must be harmful." At least until it gets repealed.
Venezuela? And they “failed” as a socialist state unrelated to our market attacks upon that state?
Our vicious “sanctions” and seizures of their bank accounts have had no effect upon their economic state?
Really? JWC
When you peg government income on the price of oil AND do not maintain the infrastructure for that oil you kind of shot your self in the genitals when the price crashes.
Barskor1:
Crashing prices are one thing. Having them-and a bunch of other prices and markets maliciously manipulated is a totally different thing!
Read the book “confessions of an economic hit man.”
Oh, and shoot your television.
JWC
@@jaywarrenclark6263 Other markets were manipulated by the USA Such as? I know the Venezuelan government loves to fix their own nations prices and how that wreaks havoc on their economy seriously they are their own worst enemy.
Barskor1:
Just find a country with valuable recourses: gold, oil, lumber, coffee, etc
You’ve got it backwards. Just find one they and corporate interests haven’t tinkered with.
This is my last word on this. I gave you the name of the definitive book. Go read it!
How depressing that we got Kennedy in lieu of this guy!
Why can't the Constitution be applied to private companies?
Because it's the defining document of our Federal government. It was never intended to limit individual action, but rather to narrowly construe the scope of federal authority.
@@marshaul oh ok was just wondering why not extend those protections as we become more capitalistic in nature, it feels like we have micro governments that are restricting the rights we thought we had, i know it's weird to think this but yeah
It's like feudalism at work
@@cornholiothefirst2018 I'm sorry i don't understand. What do you mean?
PhantomZero I think he is expressing a negative opinion of capitalism. But he can clarify if I or you are wrong. :D
I think the title should read i dont think we have a constitution...
10 sets of law in USA! Who's your daddy?
Reason... Living in a fucking fantasy world....
Remember what Reason was like when Obama was in office?....
The irony...
Jesus Christ! He admits that we are in an “Administrative State” and gives the figure of 19 to 1 laws made by bureaucrats instead of duly elected representatives! And yet there has “never been a Constitutional in his lifetime?!
With such a softy bordered set of criterion the nation would be openly Fascist or Communist before he would react!
And he’s on the High Court?
And he’s an “originalist?” If he is, just what does he use to define its opposite?! Jesus!
*was idiot proofed, those amendments like 17 and 19
OK Boomer
Judge admits he had one toke in the 60s and he's done. Wow
Badder Ginsburg probably took weed daily before her secret death in early 2019.
They had to stop him at all costs. If it wasn't marijuana it would have been something else. Ginsburg knew it and knew he'd never make it. And to be honest, it worked for the left and they got Kennedy instead. Imagine how many 5-4 rulings would have gone the other way if Ginsburg hadn't withdrawn. That's why it was so important to stand up to the lefties and get Kavanaugh confirmed.
He is judge, following the law should matter. Do as I say not as I do does not work for judges usually and bring a SCOTUS Justice makes you extremely important and powerful for the rest of your life. Why do you want a stoner helping run the country?
@@driver8M3 Kennedy is a still Republican.
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.
I think it was a crisis when we had a supreme court justice declare that the Constitution is a living, breathing, document. It's meaning doesn't change with the times, it's codified law.
How do you declare originalism if that was not written into the Constitution?
I think he is lying