At the ronalreagan president ial Foundation Institute it is my honor to have judge ginsburg with us was the chief judge on the dc circuit 2001 through 2008 and on the court working with the Reagan Administration top bar and Harvard University of chicago columbia we are excited to talk about this project you have been working on. Amazon video series more or less perfect union. So what was it that made you want to do that . Thank you for asking. This is addressed to a crisis in our Education System in the us now. And those that have been neglected graduating each year from high school never exposed to how the Government Works what the constitution says and the National Values are and simply we cannot have that functioning democratic republic with a completely ignorant population but we are headed in that direction. I am doing is part of a broader reaction to that with Civics Education Sandra Day Oconnor started the ball rolling him and to create educational materials and to distribute so we will reach about 1 Million Students per year as long as the issues are permanent and i think that will be a long time. So to hasten the movement to restore the basic Education System in the last year theyve done just that the two legislatures and two governors and hopeful there wl be many more. On board ten years the very first percent interview is Justice Oconnor and he talked quite a biabout how important it was. One of the students got up and ked how do you reconcile your personal any when you make a decision for the Supreme Court . She looked athe audience and said bring me my first. They brought it up on stage and said reconcile with this and got a copy of the constitution which was a beautiful moment which is one of the reasons why when we were watching the series it is very important. The framers anticipated this problem how to make judges loyal to the law and the solution was Lifetime Appointments no reduction of salary ever. And with that competing value left behind to have those reasons to do so . Absolutely. Has we come into this the day after the election so wasnt decided and we are in a country that many would argue is polarized as it has been between those political ideologies and in your introduction to the bulk you wrote the consistent sense of the constitution of American Life and those that the us has been since the moment of its founding the constitution is what unites us. So given the context of the current political moment those that are sheltered from the politics of the moment, how do you see the constitution helping restore around this set of ideas . We are still committed because thats what we argue about so what does it mean and how should it be applied or changed . And that intense partisanshi and division you talk about was with us from the ginning. Utah history if i recall in the early American Republic was even more partisan and divided and we are right now or at least as mh so. Newspapers ran against one candidate. And outrageous claims made from each side against the other. s and it has been that way pretty mh maybe not every year throuout history its nothing new certainly lived through it as recently as one year ago wh the intent to impeach President Trump was a spectacle of civics because people in the senate and house arguing about . The meaning of the impeachment clause what is the Impeachable Offense in 1789 . That is the question they are arguing about. They dont have to agree as long as we argue about that the republic is safe otherwise were in real trouble. And you do such a great job of this in the series of picking up the idea of the country has been a battle of those ideas since the very beginning and the convention itself was battle itself in 1787. And the important aspect is the product of several important compromises the legislatures make compromise or one compromises to get anything don done. That is something we have become less good at im afraid thats what makes a policy work but in Court Somebody wins and somebody loses with the legislature it is politics and trading but we accepthat we agree to li by. Absolutely. So with the discourse with a clash of ideas in short form so the federalist and anti federalist longform philosophical essays that make the case for the constitution the first place. Created in the daily newspaper that was the medium of dissemination so it was longer than two days offense generally more persuasive and more elegantly written but also addressed to the public was put out on the convention by real people and meant to be understood by the people it was not meant to be something not to understand clearly it helps to study the structure and the purpose you could get that by reading it if you have a lawyer to read the mortgage to your house sorry the ddl need one to understand the constitution. If you need a house likely the document will be five or ten times as long that sets up the legal system of the United States. It is relately brief handwritten five large pages of parchment. I love the video scenes a view talking with the reenactors engaging with the founding that this is engaging and to the founding of the country to highlight the phrase that using this example quite a bit and that is what doctor franklin emerges from the convention and says do we have a republican monarchy . He says in public if you can keep it to believe in the importance of civic learning is the focus of our work, in some ways is that constant battle of ideas how we keep the republic . T is well put the public through elect officials whether t adopt this or that law without initiative in california of where you are and by a large the leglature makes the laws the framers did not anticipate tt the Constant Exchange of views and oposals that keeps the vibrant and contemporary. In the constitution and where they shouldnt any way it with that interaction from the representatives. Lets get into it because there are certain parts what you wanted to go out with marbury versus madison and the concept of judicial review. Why is it important for folks to know . It is foundational 18 oh three with chief Justice Marshall we have a written constituon what the framers agreed to and with the people ratified and agrd to. When the Legislature Passes a la that Congress Passes a law they take it and hd it up against the cstitution and say is this authorized . Ift is not then it is normal and void. It is emphatically t duty of the judiciary so Congress Passes the laws and then to enforce the lawnd so to determine if that is consistent. Whenever somebody goes to Court Challenging something unconstitutional they are asking for judicial review and for a court to review the action of the congress or executive against the constitution. Is interesting i think of the blind lady of justice to look at this balance in the founding of the country and on one hand you have the judicial system balancing the case for the constitution and the three branches in theory are designed so no one branch has too much power. Importantly is the phrase to check and balance each other. So to give you an exampl example, all we can do is issue a judgment of a piece of paper what the law is and thats it we dont have the power of the purse or the sword we depend on congress to fund the judiciary we depend upon the executive to enforce our judgments. Its as simple as that we can pass the laws we can pass the laws is dependent on the executive to impose those in the judiciary to interpret those they fall to the executive they can do anything unless appropriated. Nothing. The judiciary has blossomed into something much more influential because of so many disputes brought because theyre asked to resolve many more legal questions than anticipated and de toueville ticed that entering the united state and his grandiose as compared to what it was at theime , wasnt drawn in influence or importance preiently to the other branches. The whol government is much greater not jt in size but in terms of what it takes in the framers could have possibly anticipated. On natnal federal government that is a state and local funcon is unimaginable and some of those encrchments are perfectly legitimate and others are probably based but that is what we have. The state of North Carolina why should they know about this . Nothing really changed to the South Carolina case decided 19 oh five and in 1835 i say nothing change but it was understood and enforced by the courts the constitution meant but always meant the meaning of the constitution doesnt change, the words dont chang change, the meaning doesnt change. We have lost that is unifying principle from the 1930s that created a debate right now with the courts and the law schools how should the constitution be interpreted . Not understood by those who voted and agreed and ratified and then what else the alternative of the living constitution basically means whatever the judge thinks the goal contemporary problems but the judiciary is a nondemocratic branch we are not elected. We are appointed and the power is circumscribed and should be. But to say the judges can update the constitution according to what they think is required is to assume a role that belongs to the congress nonetheless it has happened. If you want to roll the first tape you can see how it was framed. The written constitution is all that matters we the people is how it starts. Im afraid too many people worship the constitution we are being ruled by people who haveeen dead for 200 years. How should we interpret t words of theead . Versus a living constitution . A ritualism is simply the proposition the meaning mus remain the same until properly changed. Its very hard to disver the origina meaning because it doesnt givthat much guidance. We believe the is some objective mning or corre answer. Ielieve that if thats true i see the point of having a writtenonstitution in the first place. I believe the constitution. There will be circumstances we have to interpret the meaning of a word i happen to be fairly limited in how far im willing to go. A ritualism does not say stick with that through article five of the constitution specifically contemplated and should be amended. The problem is it is extremely difficult. It ivery hard. The best way to think about a written constitution is a starting point not the ending point. Of course we do our best to understand what they meant at the time. But for all of the debate on issues it is a starting point spirit the livg constitutionalist it can be whateverou wanted to be in ct only the living constitution is one that is followed. It has nothing to do is to judicial review because at all modern cases it is not clear. We are on a blank slate figuring out what the constitution should be. It evolves slowly and the time it needs. We all agree it should be updated what we disagree on is who does the updating. That is what the political process is for with those difficult questions. The last people you want to change the document our judges so that the judiciary is not allowed to add to or subtract from Supreme Court is not t constitution the constitution is the cstitution. The idea should be followed is consistent with the law of the land the supreme law of the land the alternative is forever uncertain no more stable or reliable them popular opinion at the time morays and opinions change but words do not. So setting that up you said between 18 oh three in 19 oh five there is not much difference how we look at the constitution even though there are big changes in the way the world works look at the 18 hundreds with the role of the executive like George Washington a different president they are in washington so you come down on the side of regionalism so explain why that so we should look at the dument. I think Justice Kavanaugh captured it there are times when it has toe updated we e 27 amendments the first n were passed in the two years it was ratified the other 17 havcome a long in the last 104 years and because sometimes very important matters arise, there is a widespread view t constitution needs to be amended. It was meant to be hard it takes two thirds of the house and two thirds the senate and three quartersf the states, 38 states have to agree. It is reservedor very important matrs. That we have to dide if it is important enough to change the constitution. Womens suffrage is extremely important and that was disenfranchised and became an franchised that was extremely important to ensure equal protection of the law for all persons. Now the constitution took another 100 years basically to be reality, but overwhelmingly the consensus is it should be so if you have the constitution being revised by judges five out of nine justices they have no democratic policy they dont know what the people would prefer him putting their finger on popular opinion because that can be extremely difficult to justify it can often be nothing more than a tyranny of the majority tyranny of the minority so then to decide the case of ferguson, the word im looking for the case in which they said equal protection clause at that time if the state provide separate but equal facilitie facilities, we had to live without for 75 years separate but equal cannot be equal and it took a lot of Supreme Court cases generations of the minority or of the racial minority to live in the inferior circumstances to be relegated to the second best of everything schools and hotels and everything. So the whole point of the constitution is to protect the minority not a racial minority but the minority opinion on a topic to prevent the majority from terrorizing the minority. The court is no better than congress or Public Opinion and we have no guarantee against the majority. Majorities voted hitler into power. Majorities kept slavery. Majority has to be reined in by the constitution. It seems for those folks who make the argument of the living constitution that this process is too slow. And we live in an age now people want something and they want it insttly by want to hear a song i could pull it up at all have to go by the music. Not only to slow but i dont like the way it is i would have to convince a lot of people to get it changed its easier to convince five justices on the Supreme Court and 38 states to change the law if they succumb to that temptation that invites further efforts like that. Do you feel there are efforts to circumvent that process . In the video you talk about the incredible growth of the regulatory agencies and you make a. Three branches combined into one. The first article the constitution says all legislative powers granted herein are listed in the congress othe United States. All legislative powers. What the congress has done they exercise of legislative power and said will make a desion that will be hard and many people thats controversial and not popular weill lose votes and finaial support. s easier to say let them make the hard decisions so instead of voting for a particular degree of pollution control was just vote for clean air through the epa. We all like clean air but then it comes down to making decisions how that would be achieved some jobs will be lostome rivers will be polluted so a lot and t epa makes those disions and not congre. That is not representative government. They have departed from the model we were given that they legislate in the ecutive implements to say gahead and you make t law. Now there are 18 violations every year witthe force of law by the agencies for every one law passed by the congrs. So that was making e laws today . It is the ftc and t se sec, cpsc, cfpb. Who they represent . Will represent agencies at all. And the majorityf them may represent the president s policies to be appointed by the current psident b that isery indirect that was the epa nothing i can do about it that was cleaner by the way and then they authorize the agencies not only to issue the law but to enforce it and then to judge whether the citizen violated them James Madison said the functions in one hand is the very essence of tyranny so to be accused of violating one of their regulations if you dont have a lot of time and money you have no chance of getting to a real court to review a decision know your find 12 million or 150,000 now its two years you go another couple years to court to get the courts to review that decision and now told by the Supreme Court to review the Decision Just make sure its not unreasonable so the agency says it means this then they can only ask itself if its a reasonable interpretation its not crazy so we should acquiesce so these agencies performing all these functions and then being allowed to essentially have the final word on what the law means contrary quoted from chief Justice Marshall the duty and province of the judges of the judiciary to say what the law is then i tried to persuade them he said i just cant go on to decide of the secretary was reasonable. [laughter] thas not the constitution we were given. There was a point when you talk about the Commerce Clause. Its very simple how we regulate commerce among several states commerce means trade. Ats what controvsial with the several states tt means trade that crosses state line it also means the railroad to ing goods. So congress has Regulatory Authority over interstate tre so doesnt have authority over lor relations manufacturing or mining or retail and that is what upset president roevelt in the thirties because of the emergency of the economic depression he was continually proposing as Congress Passed legislation that waseyond the wer of the congress under the Commerce Clause in 1937 the Supreme Court acquiesced to the idea even if something did not cross state lines ty came within the authority of congress to regulate. Ernest hemgway home is dedicated to preserving a legacy of author Ernest Hemingway chickens need no reason to cross the road from the federal department of agriculture got wind of the ca you decided how it should be cared for. The meum challenge the Commerce Clause at the very southern tip of florida. That meant when im in new york you are in boston that was interstate commerce that could be regulated but when two people in the same state traded something that was not than that cannot be federally gulated that was the intention of the framers spirithey did not designed the almighty federal government to reach down into your backyard or barnyard. During world war ii there was a farmer. And then that dictated and said thats not constitutional. So the highest court in the land thought otherwise and in at convoluted analysis to clear that wheat would not be used in interstate comrce. So they take the Commerce Clause and stretch it like a rubb band justor crossborder commerce. I agree but some scholars disagree that there is little if anything beyo the Regulatory Authority of the deral government. Things are really interconnected and what goes on one farmers farm effects what happens elsewhere when the Supreme Court says to regulate things not just engaging the federal power but the authority does it affect commerce and everything affects commerce if you do something or dont do something well . Then you bically have the power over everything. Erything . Even cats . Eleventh Circuit Court of appeals has cat related merchandise in the gift shop as a connection. And to love hemingway. And selling cap socks on the website is incredible. In. In fact and quite substantial and in 1842. And socal apologetic this is and even if the effect is indirect women to have a substantial effect on interstate commerce how the cats are fed and cared for in key west as a substantial effect but as a practical matter it has a discernible effect on interstate commerce although the cats never go anywhere. [laughter] so to be able to reach into your backyard. And the word substantial seems very important how many cats is substantial amount so the federal government has to get involved. Present reagan understood all of thisnd thoroughly educated and self taught in the political theory of the founding ive seen books in the library and that was the extensive adaptaon and ung the speeches from General Electric and had a thorough education political philosophy. The next but we have is the Commerce Clause. This is what we were just discussing. Now substantially affecting commerce. And from the fifth amendment . Its more recent the bill of rights private property for public use without just compensation we know that is not controversial the question that arose and intuitively on the county courthouse things like hotels and theaters that is the public use in the middle serve a public purpose and that changes this just even a dozen years ago and from charlies case. I remember the first timi ever broke a string. The casinos came to me. And started atlantic city. Atlantic city one is americaplayground and then gambled on cinos and lost much asmericas playground is a wasteland. This is a crosssection like a living and breathing thing. You were blessed after my parents survived the holocaust. The casino reinvestments and hearing the states power of eminent domain. And those that wer right next to me. And when theifth amendment has any meaning whatsoev but the foreword is effectively no. Private property may be taken with just compensation but the Supreme Court we will public use to read public purpose which is much broader. And with that abuse of government power spend then the judge deems to provide interest but in the and charlie prevailed in the case keeler wasnt so lucky. And then to dede that for us. And the battle goes on. And then to lay the groundwork new jersey lost why do they think they could do this the city of new london said and clear the space with the Pfizer Pharmaceutical Company to build a complex with offices and it is worth much more than has these houses on it. And the Supreme Court said thats a public was how do we know . Because of voted for. And then with the courthouse or road and in the aftermath of that 46 states have changed their law to make it clear that kind of taking and those that are primed in florida for instance the municipality cannot take property they cannot sell it for ten years i have to use it they can just over the pfizer and the governor signature so its very serious and then to do that for public purpose and in the cause the way that it reads now. And then changing that to a public purpose and here it is and then to have more tax revenue. And if you dont think so in the 46 states rejected it and said not in this state. This is not our understanding. It was so destabilizing to the property it was intolerable. If he were in a homeowner in your government as we make more money like in the birnbaum case and with those memories in that Family History forsaken for additional tax revenue. And then president ial site there is also some controversy and discussion on executive action and executive orders and in the video you gave two examples that many word argue with the proclamation and the other executive order 9066 through japanese americans and what about executive action . And ahmed daily basis now with 2 million civilian employees by the way and that is a perfectly legitimate function. What does that require . Emancipation proclamation was a military order issued by president lincoln as his capacity of commanderinchief and of that insurrection the military districts especially the Confederate States from the state of insurrection. Thats why we need a the 13th amendment to put an end to slavery and war. And with the parents and climate accord. The iranian deal that president obama entered into to contain the Nuclear Weapon development perfectly clearly was a treaty. And then to have the Senate Confirming a decision in the secondary city not the capital. This is an important matter the iranian deal was huge with significancend so on b didnt subt it to the senate th wereot ratified. Fewer than a half a dozen and en to be handled by the next administration that psident truman or president roosevelt issued executive order to tu on japanese americans on the west coastn camps with that necessity and that justificatn with the emancipation proclamation its diffict to go back to understand but i can tell you growing up in the midwest when nuclear war was a threat we were hiding under our desks. T that was the menlity of the time. At the time they have since regretted that during the period of the own approval. And president clinton issued a executive order and to makeecisions consistent wi the law to implement or favor someby challenge that of course the president can tell the subordinates this is what i want you to do through this executive order. We have about six minutes left and they will give you a chance to plug your book but the written agreement and in video you also talk about the declaration of war explicitly given to congress that hasnt happened since world war ii. Some will say congress has ceded the constitutional power by not standing up to say this is the treaty we need approval. But in terms of checks and balances where they are out of whack if one can assume too much power . There are circumstances like the attack on the United States for the president has to enact immediately like president roosevelt went to a straight declaration of war we never lost a were declared by the congress. They have the full backing of the people otherwise representatives would not endorse us. But now congress did continue to appropriate money and then to do virtually anything they wanted in vietnam. And in 2001 was the basis for president bush interventions in afghanistan and iran. Considering the backlash with the twin towers of new york and the pentagon and probably congress of the plane had not gone down, the authorization for use of military force to justify with respect to afghanistan. But when that happens it is civilian control with the chairman of the joint chiefs of staff it is extremely important principle and the framers were quite familiar with Julius Caesar in every general the last 2000 years to seize power and it is quite clear to do civilian control of the military. I want to wrap up at your career had interesti intersections. You mention you had a chance to clerk for one of the grea legal minds in the country can youalk about that experience . As the archite and the combination of 20 Year Campaign of Justice Marshall and it was a great complishment no question about it. But mo of his career up until the time he went to the server on the Second Circuit was spent defending blacks accused of rape or murder thehite victim or a black defendant in the deep south and to his life in his hands almost every time he went from new york down there to defd those cases. His life was and and almost lost on more than one location was about to be lyhed when a sheriffs deputy came along to break up the party. Times he cannot stay at a hotel he would stay with families and hiding it places. The issues but always hd an appropriate story with which to illustrate his points. I learned a lot in every one of those encounters. He said let me tell you what happened when the law broke up the studio system in hollywood the case was 45, 46 and the studios that made films couldnt own distributors that owned the movie houses and it totally changed the industry and had the opposite effect of what was intended of course to make the industry more competitive. It explained how it concentrated the industry and reduced the number of studios that were viable. It changed everything and it was actually counterproductive making it less competitive. So that was sort of illustrative in the way he could bring history of his own knowledge and teach something about it but to give you an idea when the president nominated me he went to the senate late in the term they were going home for the november elections and got a hearing in september for the 86 elections who introduced me to the Judiciary Committee . Senator kennedy from massachusetts. So, here was t illustrations for the chairman of the committee and the house to introduce the president of the opposite partys nominee forn important post. Thank you for sharing the story and joining us today. I encourage everyone that is watching us please youan find the video a more or less perfect unioon amazon prime. Is there anywhere else . Passport for those that ar members, amazon prime and also the freeo choose network. Org plusy interviews with George Washington and Benjamin Franklin teaching on affirmative action. We encourage everyone to check it out, voices of the republic exploring the constitution with ruth bader ginsburg, Sandra Day Oconnor, ron churn out and many more. Its a beautiful book and if you are sitting at he anyways you might as well learn a little bit more about the constitution. With that, thank you for the time today. We appreciate it tremendously. Here is a look at some of the books being published this week. Pope francis offers his thoughts on how we can build a better world. Georgetown University Professor has incidents of racial violence throughout history and argues the country must confront systemic racism and in a long e coming
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