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

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

[yukonred]

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!

[Ophidian]

Legalizing weed is driving up heroin use, what?

[cyberlich]

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

[merlingrim]

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.”

[WRobur]

Federal firearms laws are completely unconstitutional, yet still upheld.

[johnsmith]

There are some assertions in this video about the Constitution that are just flat out wrong

[XsamwiseX]

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.

[Beej]

We would have to actually adhere to the Constitution for there to be a crisis.

[coachwilson]

I wish you would have asked him about 2nd Amendment...and specifically on a ban for AR-15's...

[richdobbs]

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.

[TivertonAudio]

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.

[wlinden]

“Usually politicians start yelling S/e/l/d/o/n/ constitutional crisis during campaign.”

[patricklachance]

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

[brenthill]

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.

[jtsdeals]

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.

[nathanswann]

This guy illuminates the gap between the reality on the ground and some illusion born by his generation.

[chrisleonard]

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.

[oldrepublican]

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.

[Lejmej]

It’s good to hear an actual scholar of law!

[DieselRamcharger]

lots of Ginsburg's surrounding the supreme court.