Transcripts For CSPAN2 Douglas Ginsburg Voices Of Our Republic 20240711

Of things. Its both available on amazon prime, a video series called a more or less perfectunion. As well as a companion book. If i can ask you judge ginsburg what was it that made you want to do this . Thank you tony for asking. This is addressed to what i think is a real crisis in our Education System in the us now. In that civics is not being taught as nearly and widely as it should be. Even American History is often neglected. So we have millions of students graduating each year from high school who have never been exposed to how our government works, what our constitution says. What our National Values are even. The younger person is these days, the more ignorant they are likely to be on these topics and we simply cannot have a functioning democratic republic with a completely ignorant population but we are heading in that direction. And i am, what im doing is part of a broader reaction to that in civics education. I think Sandra Day Oconnor started the ball rolling a dozen years ago when she resigned from the court. What is it, they created educational materials from the series and i did for pbs. And indeed a distributed the series to 170,000teachers of history and civics. So were going to reach about 1 Million Students a year. For as long as the issues remain pertinent and im sorry to say i think thats going to be a longtime. Im hoping that this will hasten the movement to restore civics to our basic educational system. In the last year, for states done just that. To legislation and two governors have required it. Massachusetts, florida, texas and osi and im hopeful there will be many more coming this year and the next. That certainly is a noble cause. I remember when i first started here so ive been on board about 10 years and the first person i interviewed was Justice Oconnor and she talked quite a bit about launching i civics and how important it was. Ill share a quick favorite moment and we will jump back but one of the students asked her how do you reconcile your personal opinion and you are making a decision on the Supreme Court and she looked at the audience, bring me my purse, bring me my purse. So her person was with her, brought her purse up on stage and she dug around and she said i dont reconcile my personal opinion, i reconcile it with this and she pulled out the cost copy of the constitution which was a beautiful moment for cynic learning and the importance of the constitution which is one of the reasons i was watching your series and looking through the book that you put together. Itabsolutely is very very important. The framers anticipated this problem of how do you make judges loyal to the law and to the constitution and their solution was for federal judges, a lifetime appointment. No potential reduction in salary ever. So theres nothing to fear. The oath is to the constitution and theres no other competing value to leave that behind you take that both. And you have every reason to do so. Absolutely. And i want to say, as we come into this, just the context for our audience. Its the day afterthe election which has not been decided. Are beingcounted. We are in a country that many would argue is pulled polarized as it has been in a long train of time. We have such a division between our political ideologies and the people who adhere to them and in your introduction to the book you wrote running through that right and you talk about a variety of people who contributed is it consistent sense of the centrality of the constitution in american life. In a big and diverse country which the us has been since the moment of its founding the constitution is what unites us. So im wondering if given the context of the current political moment and you talk about the life style appointment of judges who are in some ways sheltered from the politics of the moment. How is it, how do you see the constitution helping restore kind of this america thats united around a single document and set of ideas . We are still united around that document and set of ideas because thats what we argue about. What does it mean and how should it be applied and should be changed . Intense partisanship and division that youre talking about was with us right from the beginning. I think you know your history. I think youve taught history as i recall and the early American Republic was almost if not more bipartisan and divided then we are right now , at least as much so. The newspapers ran constant invective against one candidate because they were in secretcorrespondence with the other candidate. There were outrageous claims made by each side against the other. Of course, all mouth factions and so on. It was extremely bitter. And its been that way pretty much, not every year but on and off throughout our history. Its nothing new and ive lived through it before through the watergate era as recently as a year ago with the end attempt to impeach President Trump was a real spectacle of civics at work because more people in the senate and house arguing about . The meaning of the impeachment clause, what could be an Impeachable Offense in 1779. Itll have to agree but as long as theyre both arguing about that the republican safe. Is there arguing about should we overthrow it, then we be in real trouble. I think you do such a great job of this in the series of setting up this idea that the country has been about the battle over these ideas that are embodied in the constitution since the very beginning if we go back to the constitution, the convention itself was a battle of ideas that played out. And its an important aspect of that is that the constitution emerged was the product of several important compromises. Legislatures make compromises or legislators do in order to get anything done. Thats something that we become less good at imafraid. At least our legislators have become less good. But that is what makes policies work. And of course ports, dont operate that way. In court so many winsand somebody loses. In the legislature its ordinary politics and horsetrading and everybody goes home with something and not everything that they want. But we accept that asa legitimate output. As what we agreed to live by. Thats absolutely, its interesting the way that the discourse, if you think about now i think the clash of ideas happens on twitter in very short form. You think about the original clash of ideas, the federalist and the antifederalist, these are long form possible philosophical essays that help make the case for the constitution in the first place. They appeared in daily newspapers. That was the medium of dissemination so they were longer than todays opeds to be sure. And to generally more persuasive and more elegant way written. But they were addressed to the public. The constitution is addressed to the public. It was put out on the convention or for ratification by we the people. It was meant to be understood by the people. It was not meant to be something youhave to be a lawyer to read and understand. Clearly intels to study, but you can get a good idea of the constitution and its structure and its purposes simply by reading it. You dont need a lawyer to read a mortgage to your house already. You dont need a lawyer to read the constitution and understand. It is kind of amazing that if you buy a house, likely the document will be 5 to 10 times as long as the document sets up the legal system for the United States. Is a relatively brief document area its on five large pagesapartment , handwritten. And you point out, i love video. Theres scenes of you talking with reenactors at Independence Hall in philadelphia, engaging with the founding which in some ways is this video series is, its engaging with the founding trying to reconnect americans to the founding of the country you highlight a phrase that i know people who are involved in civics learning use this example quite a bit to talk about the importance of civics learning and thats what doctor franklin when he emerges from the convention and hes acting in the streets, what have we got, arepublic or a monarchy and he turns the person who asked the question and says a republic if you can keep it. That i think has become kind of a rallying cry for people who believe in the importance of civic learning as i know you do as certainly as a focus of our work here. In some ways do you think that that constant battle of ideas is how we keep a republic. It is, i think its wellequipped because in a republic where represented indirectly through elected officials. Not a democracy, we dont vote you and i on whether to adopt this or that law. Sure theres the occasional Referendum Initiative in california where you are and some of the other states but by and large the legislature makes the loss we just make the legislatures. And things sort themselves out in the parties, they did so almost immediately. The framers didnt anticipate that, they didnt want that but thats whathappened. And its that Constant Exchange of views and proposals and so on. That keeps the republic vibrant and contemporary. And one of the important points that comes out of the show that i think we will get into is that the constitution and the laws under it are not updated by courts or they shouldnt be anyways. There updated by the constant political interaction among the people and the representatives. Get into it a little bit because i know theres some certain parts of the show and your work that you wanted to pull out. This goes back to 1803 in the caseof marguerite versus madison and the concept of judicial review. So im going to toss it to you, why is that important forfolks to know . Its absolutely foundational. It comes in 1803 early in the republic in which chief Justice Marshall known as the great chief justice reasons as follows. We have a written constitution and in other places he says thats the greatest innovation in political life i think ever, Something Like that. We have a written constitution. Its what the founders, framers agreed to. And what the people of the states ratified. So when the Legislature Passes a law, when the Congress Passes a law or the executive takes action. You can take that law, the action, hold it up against the constitution and say wheres this authorized. Is it authorized and if it is not to be found in the constitution, then its nolan boyd. And to quote the opinion, Justice Marshall says it is exactly the duty of the judiciary to say whatthe law is. So the Congress Passes the laws, executive president and his subordinates of enforce thelaws but it is when theres a dispute up to the courts to say what the law is, what it means. And to determine whether it is complicit with the constitution so whenever somebody goes to court, challenging something as unconstitutional, they are asking for judicial review, theyre asking for the court to review the action of the congress for the executive against theconstitution and say is this really authorized. Its interesting, when i think of the judicial system, in some ways i think of the blind lady of justice pulling the scales and kind of looking and balancing how do we create that balance and really the founding of the country, the setup of the system of governmentitself is all about balance. On the one hand you have the judicial system balancing the case before it in front of the constitution. You have the three branches which in theory are designed to balance each other out. So that no one branch as too much power. Importantly the phrase goes to check and balance each other. So to give you an example, my branch the judiciary, all we can do is issue a judgment, on a piece of paper that says what we think the law is and you are ordered to do this or that. Thats it. We dont have the power of the purse, wedont have the power of the sword. We depend upon the congress to fund the judiciary. We depend upon the executive to enforce it our judgments. As simple as that. You think of the congress, they can pass the laws but they depend upon the executive to enforce those laws and depend upon the judiciary to enforce those laws. They in turn on the executive. The executive cant do anything for which funds have not been appropriated. Nothing. The judiciary as he envisioned it has blossomed into something much larger, much more influential i think. Because of so many disputes being brought to the courts. The courts are asked to resolve many more legal questions and i think ever could have been anticipated. We are much more litigious as a people. I think tocqueville noticed that as early as 1850 so as legislative as the judiciary is compared to the time i think its, i dont think its grown in influence or importance beyond more proportionally to the other branches. The whole government is much greater not just in size but in terms of what it undertakes than the framers ever could possibly have anticipated. The idea that there would be a national, a federal government with any power at all, not much but any power at all over education which was a state and local function would have been unimaginable and they framed the union. And some of those encroachments are perfectly legitimate. Others are probably based on an overly aggressive interpretation of the constitution. But they are what we have. I want to go to the next case you wanted to highlight whichis the case of South Carolina versus the United States. Why is this important and why should people know about this . The point is nothing really changed from marbury versus madison decided in 18 three to the South Carolina case decided in 1805 and even into 1935, when i say nothing changed it was understood and agreed and enforced by the court that the constitution meant what it always met. The meaning of the constitution doesnt change. The words dont change except by amendment. The words dont change, the meaning doesnt change and weve lost that as a unifying principle starting with some Court Decisions in the 1930s. That created a debate that move looms large right now particularly in the courts and in the law schools and that is how should a constitution be interpreted. If not according to how it was understood by the people who voted and then agreed to it andratified it, then what else . And the alternative of a socalled living constitution basically means whenever the judges tank ought to be adjusted to meet with contemporary problems. But thats a complete, the judiciary is a nondemocratic branch. Were not elected, were appointed. And our power is circumscribed and should be. I think rather tightly. But to say that the judges can update the constitution according to what they or 59 Supreme Court justices think is required is to assume a role of policymaking that belongs to the congress. Nonetheless, its happened. I think if you want to roll effort take youll see how the debate isframed. The written constitutionis 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 have been dead for 200 years. How should the living interpret the words of the dead. The debate comes down to the documents original meaning versus a living constitution. Original is an assembly the proposition that the meaning of the text of the constitution must remain the same until its properly changed. Its actually very hard to discover often what the original meaning was because the text of the constitution often doesnt give you that much guidance. We delude ourselves if we believe there is some objective meaning or correct answer. I dont believe that, if its true i cant see the point ofhaving a written constitution in the first place. Im one of the living guys, i believe that the constitution is ever evolving. There are going to be circumstances where we have to interpret the meaning of the word. I happen to be fairly limited in how far im willing to go. Original is and does not say and stick with that through eternity. Article 5 of the constitution is typically contemplated at the constitution could and should be amended. The problem is the article 5 amendment is extremely difficult, its very hard to read i think the best way to think about a written constitution is its a starting point. And its not the ending point. Of course we do our best to understand what the text meant at the time. But for all of the debate, thats a starting point. If youre a living constitutionalist it can mean whatever you want to meet. The only living constitution is a constitution thats followed. That has almost nothing to do with modern judicial review because in all modern cases of any importance the constitution is not clear. Were not writing on a blank slate but we are figuring out what the constitution should be. The constitution does evolve but evil slowly. It evolves with time it needs to be tweaked. All of us agreed the constitution to be updated. What we disagree on is who is to do the updating. Thats what the political processes for, to resolve those difficultquestions. The less people you want to be changing that document our judges. The judiciary is not licensed by the constitution to add to or subtract from the text of the constitution. But the Supreme Court says it means is not actually the constitution. The constitution is the constitution. The idea that the constitution should evolve is really inconsistent with it being the law. The law of the land, the supreme law of the land. The alternative is a law that forever uncertain. No more stable, no more reliable and popular opinion of the time. Opinions change, mores change and words dont. So coming out you set it up and you said between 1803 and 1905 theres not much difference in how were interpreting and looking at the constitution even though there are big changes in the way the world works if you look atthe early 1800s , you have just the role of the executive. George washington for example is a different president and Teddy Roosevelt who comes in the 1900s is different from what we see today. So what, you come down on the side of original is him and explain why thats the way we should be looking atthis document. I think Justice Cavanaugh captured it. Things, there are times when the constitution has to be updated. Its, weve had 27 amendments, the first 10 were passed in the 2 years after the constitution itself was ratified. They were added and then the other 17 outcome along in the last 140 years or so. And because sometimes very important matters arise and there is a widespread view that the constitution needs to be amended. As professor strauss said, it is hard to amend the constitution. It was meant to be hard. It takes two thirds of the house and two thirds of the senate and three quarters of the states. At 38 states have to agree to change the constitution. So its reserved for very important matters. Most things can be accommodated by ordinary legislation. If they cant, then we have to decide is it important enough to change the constitution. So womens suffrage, 1920. Extremely important, right . Half the population was disenfranchised and then became an franchised. The civil war amendments, extremely important. And in slavery, ensuring equalprotection of the law for all persons. And ensuring the boat. The constitution ensure the boat but it didnt happen. It took another hundred years basically for that really to be reality but the sense was overwhelming that it should be. We were very imperfect in implementing it. So if you have a constitution being revised by the judges, as i say just five out of nine justices, they have no democratic intimacy. They got no, they dont know what the people would prefer. And they shouldnt be putting their finger in the wind to see which way popular opinion is leaning because popular opinion can be extremely difficult to justify. Popular opinion can often be nothing more than the tyranny of the majority. Terrorizing a minority. Its when the Supreme Court in 1890 three decided the case of ferguson, whats the word im looking for . The case in which they said that the equal protection clause is satisfied if the state provides separate but equal facilities. We had to live with that for 75 years. It was a departure from the words of the constitution. Separate but equal cannot be equal. Its separate, its different and it took a lot of Supreme Court cases and worse than that, it condemned several generations of minority in that case the racial minority to live in inferior circumstances. To be relegated to the second best of everything. Schools, hotels,everything. So the whole point of the constitution is to protect the minority. Not racial minority, any minority. Religious minority, minority opinion on some topic. Its to prevent the majority terrorizing the minority. The court is no better than the congress, its no better than Public Opinion and we have no guarantee. We have noble against the majority. Majorities voted hitler into power. Majorities kept slavery for a long time in this country. The majority has to be reined in by the constitution. I think it seems like for the folks who are, who make the argument for the living constitution that its too slow. And i think weve lived in an age now where people want something and they want it instantly. If i want to hear a song ican pull it up instantly, i dont have to buy a record or tape or cd. What theyre saying is not just its too slow but i dont like the way it is and i would have to convince a lot of people to get changed. Much easier to convince five justices on the Supreme Court and 38 states. To change the law. And if the justices succumb to temptation, well it invites further efforts like that. And you feel like theres also kind of efforts to circumvent that process. I know in the videos a couple of things to talk about. One, just the incredible growth of regulatory agencies. Which you know, you make the point that really these regulatory agencies are three branches combined into one. The first sentence or the first article of the constitution says all legislative powers granted here herein, harvested in a congress of the United States. All legislative powers. And what the congress has done is if they exercise their legislative power, they say were going to make certain decisions that are going to be hard on many people. Thats controversial. Thats unpopular. Theyre going to lose votes, theyre going to lose Financial Support for reelection. Though its much easier to say lets take that over to the executive and let them makethe hard decisions. Instead of voting for a particular degree of pollution control, lets just vote for clean air and turn it over to the Environmental Protection agency. Avoids having to offend anybody. Were all for clean air. Then it comes down to actually making the decisions. About how thats going to be achieved. It means making some factories are going to be closed and some jobs are going to be lost and some rivers are going to be polluted and some are not and so on. The epa makes those decisions instead of the congress. Thats not representative government. They have departed from the model that we were given in which they legislate and the executive laments the law. Two saying to the legislature , to the executive ahead and you make the laws. Now there are about 18 regulations every year with the force of law put outby the agencies. For everyone law passed by the congress. So whos making our laws today . Its an out of that soup of agencies. The federal trade commission. The securities and exchange commission. The Consumer Product safety commission, Consumer Finance protection board and on and on. There are scores andscores of them. So who do they represent . They dont represent citizens at all. These are agencies headed by sometimes one person, sometimes five persons. A majority of them may represent the president s policies if, they would be appointed by the current president whoever that is at any given moment. But thats very indirect. You write your congressman when you have a grievance, all you get back is im sorry, that was the epa. Nothing i could do about it, i voted for clean air bythe way. Then they authorized agencies not only to issue regulations that have the force of law, legislative actors but to force them and then to judge whether the citizen violated them judicially. James madison said the combination of those functions in one hand is the very essence of tyranny. So you go before one of those agencies accused of violating one of their regulations. If you have a lot of time and a lot of money, you have no chance of getting to a real court to review what their decision was. To say they said you violated the regulation, you are find 12 million or 150,000 and now its been two years and you can go another couple years going to court because the courts review that decision and worse than that of course youve been told by the Supreme Court dont actually review the decision, just make sure its not completely unreasonable so if the agency says the statute means x, the court can only ask itself was that an unreasonable interpretation of the statute . I think it means why but im not crazy to say it means x so i guess we have to acquiesce. You have these agencies performing all three functions totally against the constitution and being allowed to have essentially the final word on what the law means contrary to what i quoted from chief Justice Marshall so emphatically the duty and providence of the judges, of the judiciary to say what the law is. When my colleague judge bork resigned from the dc circuit, i tried to persuade him to stay. He said to me i just cant go on deciding whether the secretary wasreasonable. Thats a good point. Its not the constitution we were given. I know there was a point and you talk extensively about the Commerce Clause in the video to. This is very simple, the Congress Shall have the power to regulate commerce along with several states. Commerce meets trade, thats not controversial. Among several states meant any trade across the state line. It also came to mean and i think collectively the Supreme Court said the railroads and shipsacross state lines to bring good. So the congress as Regulatory Authority over interstate trade. And that means it didnt have authority over labor relations, mining, manufacturing, retailing and thats what so upset president roosevelt in the 1930s because in the emergence of the economic depression, he was continually proposing and congress was passing legislation that dealt with things that were beyond the power of the congress. Under the Commerce Clause or anywhere else. But in 1937, the Supreme Court started to acquiesce in this idea that even if something in cross state lines, it nonetheless came within the authority of the congressto regulate. Lets take a look. Ernest hemingways left ear. Now they do. Descendents of hemingways 6toed cat. In key west anything goes. The framers didnt design an almighty federal government. That could reach down right into your backyard or barnyard. During world war ii the was a farmer who grew grain and he he said that grangers own and will. The federal program to dictate how much grain they could grow. Thats not constitutional. In wickard versus auburn the highest court in the land thought otherwise. In a convoluted analysis the Supreme Court declared that because the wheat would not be used in interstate commerce, it still impacted interstate commerce to some type of displacement. Theyre taking the Commerce Clause and stretching it like a rubber band to apply to any kind of business when it was originally meant to just be for crossborder commerce like it says. I agree that some scholars disagree here in the review theres little if anything beyond the Regulatory Authority of the federal government. In an economy like ours things really are interconnected. What goes on on one of farmers farmer really does affect what happens elsewhere. When the Supreme Court says the interstate Commerce Clause gives congress the power directly things that seem awfully local, its not just engaging in some kind of trap to expand federal power. Its recognizing an economic reality. If it becomes, does it affect commerce, then everything affects commerce whether you do something or dont do something. Well, once you have the power over anything that affects commerce amongst the states come when you basically the power over everything. Everything . Even anyways cast . The Circuit Court of appeals said because the features of these katz on his website ahead cat related merchandise in its gift shop that a substantial connection imitate, and that opens door for the federal government to come in and exert control. Im not making that up. I found that clip fascinating. I was a literature major and loved hemingway. The fact that the federal government gets involved with six toed katz and selling cat socks on the website seems incredible. It is. Thats why he said i kid you not. People would hard to believe thats interstate in fact, it revised the clause which you saw before quite substantially. Can we see the slide that shows that . This is 1942. Think out apologetic this is. Even if its local a net seem like interstate commerce and even if the effect is indirect, its still within the reach of the congress it has a substantial effect of interstate commerce. Does the katz and other fed and cared for in key west substantial effect on interstate commerce . As a practical matter, which has become of this, all one needs show is at a discernible effect on interstate commerce. Obviously there indirect since the cats never go anywhere. They are just on the website. Yeah. Basically the federal government has been able to reach into yes your backyard. The word substantial seems important. How many cats is a substantial amount of cats . Is that one . We have ten, so the federal government has to get involved. President reagan understood all of this. He was very thoroughly educated, mostly selftaught in the article iii of the founding. Ive seen some of the books in the library, in his library, in the Reagan Library museum, was extensive annotations in the margins. He used those in speeches for General Electric for a decade or so. He really had a very thorough education in political philosophy and political theory. Absolutely. The next bit we have is the Commerce Clause as revised. You want to talk about his . This is what were just discussing. Its how matter substantially affect commerce and several states and doesnt mean anything. Then the next thing we want to talk about from the fifth amendment, the takings clause. This is a more recent outrage. Outrage. Heres the takings clause of the fifth amendment, part of the bill of rights, nor shall private property be taken for public use, without just compensation. We all know what private property is. Its a controversial. Just compensation is not controversial. It means the market rate, not your sentimental value on something but the market rate for your property. But the question that arose a dozen years ago was, what is a public use . Intuitively, its not a hard question, right . A road, i county courthouse, a school, public uses. In the late 19th century the court had some cases involving things like hotels and theaters and said thats a public use, in the sense public use. We dont mean that because they dont serve a public purpose. Its really got to be a sort of public use and understanding that mean something of the public purpose. The court totally changes this, just a dozen years ago. We can see charlies case in new jersey, as an example. As a kid growing up with pianist i remember the first time i ever broke a string. My dad said you broke it, charlie, you are going to fix it. The first musical director of one of the casinos came to me and said, charlie, i have a lot of pianos here. So thats what started my career in piano tuning in Atlantic City. At the beginning of the 20th century, Atlantic City was americas playground. But after world war ii its fortunes declined. The city gambled on casinos and lost big. Much of americas playground is now a casino wasteland. This is not just walls. This building is a crosssection of my life. Its like a living, breathing thing. We were blessed to be able to come as immigrants to this country after what my parents had survived, the holocaust, and idea of actually owning something that we couldnt be thrown out of was huge. That may be charlie could be thrown out there. In 2014 a state judge ruled the Casino Reinvestment Development authority could seize his home, using the states power of Eminent Domain. You have 45 days to vacate, and it would be bulldozed as all the other buildings right next to me had been bulldozed. Does the public use provision of the fifth amendment at any meeting whatsoever . Supreme court answers was effectively now. The constitution provides that private property may be taken for a public use without just compensation paid. The Supreme Court rewrote public used to read public purpose which is much broader. They werent even sure exactly what theyre going to use it for our when there are going to use it. They said we dont have to give you an answer. Im thinking, where do we lef . Is this russia . Is this north korea . Its just a naked abuse of government power. So charlie went to court. Two years later the judge said it was a manifest abuse of Eminent Domain power. New jersey a few but in the end charlie prevailed. In the infamous case of chela versus new london, suzette wasnt so lucky. The Supreme Court said we cant decide what the public purpose is. We will at city council decide that. Thats good enough for us. Funny but i thought the justices were supposed to make constitutional decisions. So the battle goes on. Kelo laid the groundwork for this. New jersey lost a why with a even come why did they think they could do this . In kelo v. City of new london said we want to raise all these houses here and clear this space, for fisa, the pharmaceutical company, to build a complex with offices in research and so on. They will pay much more in taxes, real estate taxes, property taxes because the property will be worth much more than when as these houses on it. The Supreme Court said, well, thats a public purpose. How do we know . Window because the city council of new london voted for it. Must be a public purpose. That was such a departure from public use from saying a school or a courthouse for a road. Then it was a complete shock, and in aftermath of that, 46 states have changed their law or made it clear that their law does not authorize that kind of taking. But in many cases they did it by statute come sometimes it was Court Decisions, but some of them are very clear and firm. In florida, for instance, i municipality cannot take property except for public use if it takes something they cannot sell it for ten years. So its got to use it, cant just turn it over to pfizer, and to get an exception requires an active legislature, both houses and the governors signatures which theyre serious. Of the place is not quite so much. The federal government now can take things for a socalled public purpose. Take a look for just a moment of what they did to that clause. We saw the takings clause. Can you put up how it reads now . Heres with the sit in the opinion in the kelo of many, change it to public purpose in here it is. A public purpose such as Economic Development that will raise more tax revenue. Thats not interpretation. Thats revision of the constitution. If you didnt think so im just looking at it, bear in mind that 46 states rejected it, but not in this state. Thats not our understanding. This was so destabilizing to the property of people own, that it was intolerable. Why . Because is a huge departure from our understanding of the constitution. Absolutely. I can only imagine if you are a homeowner intercity or local government says we think we can make more money if we will take your house, in a case you were showing, look like his family had lived there for generations. Just to have those memories and that Family History forsaken for the purpose of additional tax revenue seems silly. Another question for you. Something you talk about extensively in the video and i think something people interested in. Were at a president ial site are of the Reagan Library in so theres often a lot of controversy and discussion back and forth on executive action and executive orders. In the video you gave to neck examples come one of which many would argue positively about the emancipation proclamation. The other, roosevelt executive order which authorized the incarceration of japaneseamericans, what do you think are what should the public know about executive action . Well, the chief executive, the president has to be able to on a daily basis issue orders, directions to his subordinates who are now 2 million civilian employees by the way. Thats a big the federal government is, not to mention the defense establishment. He has to be able to issue orders and thats a perfectly legitimate function. What does the order required . The emancipation proclamation was a military order turkey was issued by president lincoln in his capacity as commanderinchief and it freed the slaves only in the areas under in insurrection. The military districts that were socalled that were essentially the Confederate States that were still in the state of insurrection. Thats why when the war was over we needed the 13th amendment to put a real into slavery everywhere and forever. Executive action can be revoked or changed by the next president. Thats what happened when president obama entered the claimant accords, the paris climb the corporate President Trump just rescinded that. The arena deal president obama entered into an order to contain Irans Nuclear Weapons Development was something that was i think perfectly clearly a treaty, not an executive socalled executive grievant. Executive agreements are also legitimate like executive orders. Orders. Theres a reason yet that the Senate Confirming a decision of the president that will ultimately counsel in some of the country, not the capital which is done reciprocally so the of the country can open a conflict here. This was an important matter. The amine deal with huge come in money and strategic significance and so on. He didnt submit it to the senate because obviously the senate was, he knew how to put in your the senate was not going to ratify it. How many senators stood up and said wait a minute, you have to submit that to the senate . Fewer than half a dozen i believe. So there was another executive order. Executive agreement in that case that is really questionable legitimacy, but any event revoked immediately by the next administration. Now, president truman pardon me, president roosevelt issued an executive order and turning of a japaneseamericans on the west coast essentially in camps are without also justified as a military necessity. The justification was very thin compared to the emancipation proclamation as a military matter. There was a bit of hysteria i think at the time. Its difficult to go back and judge and will understand how people felt and what they feared. But i can tell you having grown up in the midwest in the 1960s, when nuclear war was a threat, we were hiding under our desks, right, in school and case the was a nuclear explosion. As if ever do any good but that was the mentality at the time. I dont mean to excuse roosevelts interment and the Supreme Court did approve at the time. They have since regretted that. I think repudiated their own approval of it. But that was a very difficult call at the time. So president clinton issued an executive order. I cant imagine a more legitimate one, directing all the departments and agencies in executive branch to make decisions where so far is consistent with the law that were, that tended to implement or favor the socalled american rivers initiative. Somebody actually challenge that. Of course the president can tell his subordinates where the law allows it, this is what what you do, try to clean up the rivers. Perfectly ordinary executive Branch Business to an executive order. We have about six minutes left and so have just a couple of questions that and that i gave your chance to make sure he plugged the series in the book and that sort of thing. You mentioned the iran agreement. You also talk about declaration of love which is a power explicitly given to congress which hasnt happened since world war ii. There are some who argue congress has in many ways ceded some of its constitutional power by not standing up as you know, how come the senate didnt stand up and say this is a treaty. We need approval. How come congress as a and say you cant send troops over there. We need to declare war. Do you think in terms of checks and balances we are in place in history where those balances are out of whack . Has one branch that is assumed to much power . With respect to the war powers, yes. Clearly there are circumstances such as attack on the United States in which the president a need to act immediately. In the case of pearl harbor president roosevelt when we were attacked went to the congress for a declaration of war. We never lost a war that was declared by the congress, and debbie were declared by the congress has the full backing of the people because otherwise the representatives would not endorse it, wouldnt authorize it. When you get in a in a very controversial were like vietnam, was never declared, the congress did of course continue to appropriate money. They passed a resolution, the gulf of tonkin resolution the president johnson interpreted as though it were a declaration of war and gave them authority to do virtually anything he wanted in vietnam and immediate theater around it. The authorization for use of military force passed by congress in 2001 was the basis for president bushs interventions and afghanistan and iran. Considering the background for that come the attack on the 20 hours in new york and the pentagon and what probably wouldve been the congress had that plane not gone down, i think the authorization for use of military force was pretty clearly aimed at in justified with respect to afghanistan. President took it into iraq on his own without going back to the congress. I think things, when that happens we are out of whack. If civilian control of the military, which is one of the points in the video, that i discuss with former chairman of the joint chiefs of staff, is an extremely important, extremely important principle. The framers were quite familiar with Julius Caesar and every general for the last 2000 years seizing power over a republic and made it quite clear that there would be civilian control of the military. I want to wrap up with a couple of questions. Your career has had some interesting intersections. I wanted to ask specifically, you mentioned in the video when you were a clerk at a chance to clerk for one of the great, arguably great legal minds and legal efforts in history of the country, Thurgood Marshall. One if you could share a memory or two about that experience. Everybody knows Thurgood Marshall if they had a civics class as the architect and winning the lawyer in the School Desegregation cases in the mid1950s, and the Supreme Court. The culmination of a twentyyear campaign organized by Justice Marshall and his colleagues, walter white and robinson and pasting. It was a great accomplishment no question about it. But most of his career up until the time he went on the court, first the Second Circuit in europe and then the Supreme Court. Was spent defending blacks accused of rape or murder, usually a white victim and the black defendant in the deep south. He took his life in his hands almost every time that he went from new york down there to defend those cases. His life was threatened and almost lost more than one occasion. He was about to be lynched when the sheriffs deputy came along and broke up the party. There were times when he couldnt stay at hotel. He would would stay with the families in well hidden places. He was the bravest person ive ever known. I i doubt i will meet anybody ee ever that brave. Thats a beautiful memory and just a reminder of his impact and his bravery. And then the last question i have before we wrap up is you had a a chance to work in the reagan administration. You met president reagan, someone who is very near and churches of people who work year. Any memories about Ronald Reagan the man . Yes. I had i think three or four occasions to interact with them at some length. They were always very rewarding because he not only grasped and was interested in the issues but always had an appropriate story with which to illustrate his points here i learned a lot in every one of those encounters come even about antitrust, my own field, when he talked to me about, i gave a presentation to the cabinet about legislative reform for the antitrust laws. When the meeting broke a piece of let me tell you what happened when these antitrust laws broke up the studio system in hollywood. The case was i think in 4546 and the studios that made films could not own exhibitors i mean distributors for the exhibitors that the movies houses. That change the industry and it had the opposite effect of what was intended. Of course it was intended to make the industry more competitive and to stop anticompetitive conduct or so ever saw at the time. And explained how it concentrated industry. Changed, to reduce the number of studios that were viable. It changed everything in a way no one anticipated and was counterproductive in some ways. And making it less competitive. So that was sort of illustrative of the way in which he could bring come in that case, history of his own knowledge come within his own knowledge to bear on the topic and teach something about it. But to give you an idea of how different the times were, when the president nominated me for the court of appeals of the d. C. Circuit where i have been for the last 34 years, he went to the senate late in the term. They were about to go home, it was the end of the congress. Typically home for november elections. I get hearing in september and april i think in late october just days before they broke up and left for the 86 elections. Who introduced me to the Judiciary Committee . Senator kennedy of massachusetts, because i was a massachusetts here he was an illustration of how things have changed. That just wouldnt happen today for the chairman of the committee in one house to introduce the president of the opposite parties nominee for an important post. Thank you for sharing that story, thank you for joining us today. I encourage everybody who is watching us please, you can find his video of a more or less parking on amazon prime. Anywhere else. Was pbs passport for those that are members. Free on amazon prime and also at free to choose network. Org. Has it as well, plus my eggs with George Washington and benjamin franklin, and some teaching materials for the schools on affirmative action, and history of race cases in the Supreme Court called becoming equal. Theres a lot there. Excellent. We encourage anybody to check it out and make sure you pick up the book voices of our republic. Its a beautiful Coffee Table Book at home anyways, you might as well learn more about the constitution. With that, judge ginsburg, thk you so much free time. We appreciate it determines tha that. I am sorry i couldnt revisit the library to do this with you. Is look at some Publishing Industry news. Booktv will continue to bring you new programs and publishing news. You can watch all of our past programs anytime at booktv. Org. Will booktv at cspan2 has top nonfiction books and authors every weekend. Today at one p. M. Eastern coverage of the texas book festival continues with authors on the aclu and the 19th amendment. Watch booktv on cspan2 today. Good morning, everyone. I am the director of the wisconsin book festival. Thank you so much for joining us for Jennifer Palmieri she proclaims. These are the events that make the wisconsin book festival so special. Jennifer, thank you for joining us. Were also joined today