 I think we're gonna go ahead and get started if you'd like to take your seats. Good evening and welcome to International House here at the University of Chicago and to this evening's special program. My name is Denise Dorgans and I'm the Director of International House. The mission of International House of Chicago and International Houses worldwide, which is currently a network of 20 houses on four continents, is to enable students and scholars from around the world to live and learn together in a diverse community that builds lifelong qualities of leadership, respect and friendship. This mission is achieved by daily interaction among our students and scholars through internationally focused public programs such as tonight's event, through our unique facilities and community life activities designed to foster diversity of thought and experience. Tonight's program is one of over 200 held here at International House of Chicago as a part of our Global Voices Performing Arts and Lecture series. Whether it's a music or a dance performance, a film festival, cultural or national celebration, a lecture, conference or symposium, International House presents programs that advance cross-cultural understanding and promote civic discourse on community, national and world affairs. As a part of our Global Voices Performing Arts and Lecture program, we are so pleased to collaborate this evening with the Barack Obama Presidential Library, PBS, the University of Chicago Law School and a number of other University of Chicago campus partners. We invite you to join us here at International House throughout the year for many of our other Global Voices Performing Arts and Lecture programs. Information about our programs is available on our literature table in the entryway and you may sign up to receive our weekly e-bulletin. On behalf of the Global International House community, I wanna welcome you again and thank you for joining us tonight. I now would like to introduce and invite Brooke Clement to the podium to begin tonight's program. Thank you again for coming. Good evening. So this evening's events will center on the Constitution. This is a living document that the National Archives and Records Administration has the charge to safeguard, protect and preserve. I am Brooke Clement, the Deputy Director of the Barack Obama Presidential Library, which is the National Archives 14th Presidential Library. This is the Obama Library's first event ever and we are very pleased that we could partner with the University of Chicago in bringing this program to everyone here tonight. I want to specifically thank the University of Chicago, its law school, UChicago grad, International House Global Voices and the University of Chicago bookstore for partnering with us and providing us this venue tonight. The event is being live streamed on the U.S. National Archives YouTube account and it is also being recorded and will be available soon on the Obama Library's website. There will be a question and answer period at the end of the program and Judge Ginsburg is gonna be signing copies of his book in the library down the hall. The book is called Voices of our Republic. So if you're interested, we'd love for you to attend that as well. And with that, I would like to introduce the University of Chicago Law School's Dean, Thomas Miles to formally kick off our evening. Thank you, Brooke. Good evening everyone, welcome. My name is Tom Miles. I'm the Dean to the University of Chicago Law School and I'm delighted to participate in tonight's event along with our university partners with the Obama Presidential Library and with PBS. I'm also thrilled to welcome our graduate and friend, Judge Douglas Ginsburg. Judge Ginsburg hasn't had an accomplished career that combines the academy with government service and the judiciary. And I'm happy to report that throughout all of those different stages of his career, his ties to the University of Chicago have remained strong. Judge Ginsburg was born and raised here in Chicago and then attended Cornell University. To our great fortune, he returned to the University of Chicago, to Chicago and to the law school. He was a member of, and I think it's fair to say, the famed class of 1973. He was one of the very first students here at the University of the Law School to study law and economics under then Professor Richard Posner. And after graduating from the law school, Judge Ginsburg clerked for Judge Carl McGowan of the US Court of Appeals for the DC Circuit and then for US Supreme Court Justice Thurgood Marshall. He then joined the faculty at Harvard Law School where he taught for nearly a decade before beginning government service. And in the government, Judge Ginsburg held a number of important roles such as Deputy Assistant Attorney General for Regulatory Affairs in the Antitrust Division of the US Department of Justice and as Assistant Attorney General in the Antitrust Division. In 1996, Judge Ginsburg was appointed to the US Court of Appeals for the DC Circuit and he served as its Chief Judge from 2001 through 2008 and during his time on the bench, very happily for us, he was also a visiting lecturer at the University of Chicago Law School. In 2011, he'd assumed senior status on the bench and he joined the faculty of NYU's Law School. Since 2013, he has been a professor of law and chairman of the Global Antitrust Initiative at the Antinous Scalia Law School at George Mason University. It is an honor to welcome him back to the University of Chicago to celebrate this new project exploring the foundations of our freedom and key issues of liberty in the Constitution, a more or less perfect union. In tonight's discussion, we'll very much follow our tradition at the law school of having Q and A, so prepare your questions. And it is a thrill to welcome our colleague, William Bode, professor of law and the Aaron Director Research Scholar to help begin our conversation with Judge Ginsburg. Professor Bode received his Bachelor of Science degree with honors in mathematics with a specialization in economics here at the University of Chicago's College. He then went on to Yale Law School where he's articles editor of the Yale Law Journal and then he clerked for Judge Michael McConnell who was then on the 10th circuit and I hasten to add that Judge McConnell was a member of our faculty for many years and is also a graduate of our law school, a member of the class of 1979. Not sure it rivals the class of 73, but it's close call. Professor Bode also then clerked for Chief Justice John Roberts before spending several years in practice and as a fellow at Stanford. He joined our faculty as a Nubauer family assistant professor in 2014 and then in 2018 became professor of law. Professor Bode has quickly established himself as a leading scholar of constitutional law. He has published in numerous prominent law reviews his opinions and views of cases and developments in constitutional law are widely sought and regularly cited by courts. He is also now a co-author of a leading casebook in constitutional law. I'm thrilled to welcome Professor Bode in conversation with Judge Douglas Skinsburg. Welcome. Thank you, Dane, for that very flattering introduction. Well, I want to give a little background on what this project is and why we're here before we get into it with Will Bode. This is a more or less perfect union is a three-hour, three-episode series for public television. It's been developed over the last three and a half years and I've learned a lot about how painstaking a project that is to do a first rate TV series and public television is quite demanding as you can imagine about the quality of the content and of the production values. But in a way, this program is only incidental to our ultimate objective because the producing company is free to choose media but through an affiliate called isitizit.org they operate an educational foundation and when video is available, as in this instance, it will be put to good use. It will be used to create a semester of materials for once a week for civics classes around the country and there are 170,000 teachers signed up to receive it, transmitted electronically. There's also a four-week unit for Black History Month which I'm particularly proud. So this will be shown, re-estimate to 1.2 million students a year for as many years as the issues remain pertinent which I'm sorry to say, I think will be a long time. So the series starts from a premise that the public should be viewing public as well as our students coming up should be more aware than is the case now of the functioning of our constitution, the way our institutions were designed to work and how they've either been evolved or they've either evolved or been degraded over the years depending upon how one looks at that. A debate began in 1984. There are some earlier precursors but for my purposes began in 1984 when then attorney general Edwin Mies gave the, spoke at the American Bar Association's annual meeting and called for what he called a jurisprudence of original intent with respect to the constitution. That is to say that the constitution should be interpreted as it was intended to be by the framers and not as it might preferably be by later generations. Now that through a process of academic debate and refinement that quickly be transformed into not original intent, we don't know what people intended. In fact, I remember being at a seminar at Columbia when I was teaching there briefly as well and a philosophy professor from UCLA said saying we have an intent or the framers intended makes as much sense as saying we have a headache. So we don't know what goes on in the minds of people but we do know what the words that they used and they were very careful in framing those words and those words had a more or less established meaning not all of them but many of them in legal documents and usage as of the time. And of course the constitution was written so as to be understood by the, I think a few thousand people who would participate in the state conventions to ratify it. The alternative to a document that follow a reading of the constitution that is true to what's original meaning is what has become to be called the living constitution. And that's because in response to Attorney General Meese, Justice Brennan gave a seminar at Georgetown Law School which they asked him to and he did turn into a brief article called a living constitution and he took issue directly with what Attorney General Meese was saying and that formed the foundation for this debate. Now, as you will see, it's a debate that primarily runs, involves academic lawyers, law professors and judges. And there are a good number of people in each of those two communities on each side of this. No one has prevailed as a matter of principle although I would say that the prevailing practice in the Supreme Court has more often than not been that of a living constitution. Justice Scalia carved out of an important role for himself as is Justice Thomas in always trying to adhere to the original meaning. Justice Scalia described himself as a faint-hearted originalist. I don't think anyone would say that of Justice Thomas. He makes no exceptions. He adheres to the original meaning as best it can be determined. And when a justice writes an opinion based on the original meaning of the phrase in the constitution, if there are others who don't agree with it, they are necessarily compelled to respond to it not just by saying, oh, well, that was then but almost inevitably to respond in terms of the original meaning and saying, oh, no, I read the history differently. And so what Scalia and Thomas have done has really changed the nature of the debate on the Supreme Court in a way that I think has been very, very healthy. Now, to get us going, I'm going to show you some brief excerpts over the course of the 45 minutes or so from the program, but I'm gonna start off first with a quotation, an excerpt from a written opinion, two of them actually, and then we'll look at some video and then we'll begin to kick it around with Will Boat. So let's see if we can get this. So here is Chief Justice Marshall, the great Chief Justice, writing in 1803 in Marbury versus Madison. The powers of the legislature are defined and limited and that those limits may not be mistaken or forgotten, the Constitution is written. An extremely important, simple point, it's a written Constitution. And it's a legal document and it was written with great care. You can think of it as being, I think it's the greatest secular document ever written. You can think of it as being fairly compared to non-secular, to religious documents over the years. To what purpose our power is limited and to what purpose is that limitation committed to writing? If these limits may at any time be passed by those intended to be restrained, the distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed and if acts prohibited and acts allowed are of equal obligation. So the idea, Justice Marshall's idea and he expanded on it in another place, is that you could hold up a statute passed by the Congress or an executive action taken by the president and look at the Constitution and see where in the Constitution is this authorized? And if it isn't authorized, as he said, it's invalid and it is to quote him now emphatically, the duty on the province of the judiciary to say what the law is, close quote. So that was the prevailing wisdom for a long time. During the century and more that our country went from its origins to being a great nation, a continental power. So here is a case from 1905. And you see the same sentiment, the Constitution is written as such its meaning does not alter. That which it meant when adopted, it means now. You can read the rest if you have a moment. So it's not a difficult concept. There were a few instances in which the court notoriously departed from the text prior to this 1905 example. The most notorious was the Dred Scott case in 1857 in which Chief Justice Tawny for all but two of the members of the Supreme Court invented a right to own slaves and invented the notion that those that African-Americans could never become citizens of the country, federal system of the nation. Out of whole cloth, there is some tortuous reading that it takes 170 pages is indicative of how torturous that reasoning is but it is without any real foundation in the text and doesn't really purport to be. It's one of the greatest embarrassments ever to come out of the Supreme Court and it is one of the most distant departures from the text of the Constitution. But I would say that we can indict the decision in Plessy against Ferguson almost as forcefully. That's the 1893, I think. 1890s decision in which the question was, well, the background of the case which is portrayed in this show by his great-great-nephew, Keith Plessy. The case arose when Louisiana had a separate rail car law so that blacks and whites could not ride in the same car and the railroad didn't wanna do this. They was just a burden on them economically. So the case was rigged up. Homer Plessy was someone who could easily pass for white. He sat in the white car, a conductor asked him if he was of white race. He said, no, but I bought a ticket and I'm going from here to there and a policeman was called and it turns out that the railroad, the conductor, the policeman and Homer were all in on it to set up this case. And of course they lost in Louisiana's Supreme Court and it went to the United States Supreme Court. And the question was whether Louisiana's regime of separate, in this case rail cars, could conform to the Equal Protection Clause of the 14th Amendment, one of the Civil War amendments meant to redress the problems created for African-Americans prior to the Civil War. And the Supreme Court somehow found the separate but equal clause in the 14th Amendment. That is to say, decided that equal, separate but equal can be equated with equal. Inserting just a few words, let's get a few words harm-do. Well, of course that was the reigning law until into the 1950s. There are many other instances in which the court has departed. I think few is quite as dramatic as that until we get to a much later period in the 1930s. But let's see a little bit more about the debate. The written constitution is all that matters. We, the people, is how it starts. I'm 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 document's original meaning versus a living constitution. Originalism is simply the proposition that the meaning of the text of the constitution must remain the same until it's properly changed. It's actually very hard to discover often what the original meaning was because the text of the constitution often doesn't give you that much guidance. And I think we dilute ourselves if we believe that there is some objective meaning or correct answer. I don't believe that. If that's true, I can't see the point of having a written constitution in the first place. I'm 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 a word. I happen to be fairly limited in how far I'm willing to go. But originalism does not say and stick with that through eternity. Article five of the constitution specifically contemplated that the constitution could and should be amended. The problem is the article five amendment process is extremely difficult. It's very, very hard. I think the best way to think about a written constitution is it's a starting point, but it's not the ending point. Of course we do our best to understand what the text meant at the time. But for all of the debatable issues, that's a starting point. If you're a living constitutionalist, it could be whatever you want it to mean. In fact, the only living constitution is a constitution that's followed. That has almost nothing to do with modern judicial review because in all modern cases of any importance, the constitution is not clear. We're not writing on a blank slate, but we are filling in the blanks and figuring out what the constitution should be. The constitution does evolve, but it evolves slowly. It evolves with the time it needs to be tweaked. All of us agree that the constitution should be updated. What we disagree on is who is to do the updating. That's what the political process is for, to resolve those difficult questions. The last people you want to be changing that document are judges. The judiciary is not licensed by the constitution to add to or subtract from the text of the constitution. What 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's forever uncertain, no more stable, no more reliable than popular opinion of the time. Opinions change, mores change, the words don't. Let's see if I can go back to something. We can just leave up there, okay. So thank you, Judge. I'm glad you're doing this project. I think it's important. So I teach constitutional law and the very first thing I always do is make the students read the constitution. And I'm sorry to say most people have never read it before. But they do have opinions. Yes. Before they've read it, yes. That doesn't stop them. But to actually sort of go through and read the whole thing. And so I think we need to pay a lot more attention to it. But here, just so the reactions the students often have and I sort of wonder what you think of it is. They read it and so one thing they're often struck by is there are some things the text of the constitution is really specific about. It spends a lot of time telling you exactly how many delegates will be in the first Congress from each state and sort of the arcane procedures for federal elections. It spends a lot of time talking about boats. It has specific clauses about duties on tonnage and vessels entering one port and another. And then it spends almost no time talking about a lot of the controversies we have today. So what can the government do? How does, you know, what do we face in the 20th century? So the one of the things they're struck by is just how little there is there. So I guess it's just the initial question is what are we supposed to make of it? And especially, you know, these are students that don't have a lot of legal training yet, but they have more than most people. So do ordinary people have a chance to understand it with the Constitution? But they just have to listen to you and me tell them what's true? I think if people read the Constitution and some do, of course, they would have, just by reading it, a much better sense of the structure of the government as it was set up. And of what, because of the amendments, particularly the Bill of Rights, what their liberties are. And more sensitive, therefore, to departures from that structure and to infringements of those liberties. Because once alerted to that, you see the evidence all around. You see suppression of speech in public institutions, which is clearly contrary to the Constitution. You see debates about the particular application or meaning of some of those terms as in the Second Amendment with regard to the right to keep and bear arms. People debate gun control without ever having looked many people without having looked at the Constitution. It was interesting to me over the last week or two, whatever it was, and I didn't see much of it, but what I did see of the impeachment proceedings is that although both sides clearly have an agenda, a goal, the argument was over the original meaning. They were doing what the court should be doing. Any court should be doing. They were asking, what did this mean in 1791? No one was saying, it doesn't matter what it meant in 1791. It can be given any content that is needed under current circumstances. So just take separation of powers, these three vesting clauses, right? The first one, all legislative powers granted herein. Those are, that's the vesting of the enumerated powers in the Congress. Well, we know that the Congress has done things that you can't find in that list. So how did that happen? Understanding how it happened will tell you that in some instances it's through a chain of reasoning that actually makes sense, and in others it's simply a naked alteration of the text by the Supreme Court. So maybe this came up in some of the passages, though. So that seems right for some things, but there are a lot of things in the world today, much of the world today, that it seems like nobody could even have envisioned when they were at the Constitution. So apart from the headache, what does the Constitution say about the privacy of our cell phones, or our digital data, or even campaign spending in mass media elections? I guess the analogy would be it's not just like us saying, they have a headache, it's like saying the Martian space aliens or something. So most of the things to which people point when saying that the current era is not practically governed by the original Constitution are just matters of technological change. The Constitution is full of principles. The principles, I mean, to keep and bear arms, it doesn't tell you anything about what those arms are. We know that the arms carried by the militia were for self-preservation of the Union, or the state, or maybe rebellion against the state, but also for hunting and for self-protection. They were not weapons of warfare. That means we can tell that pretty readily. But the principles are enduring. So I'll take your example of privacy or what's in your cell phone. The court had a case in which a police were going down the street using a heat gun of some sort to determine whether there were hotspots in houses where people might be growing marijuana unlawfully. And they've indeed found a house like that, went there, no warrant, and obtained evidence and a conviction. And it went to the Supreme Court and Justice Scalia for the court, said, this is a search. The fact that it's done electronically makes no difference. In another era, they would have had to come into the house to do that. Now they can come into the house through electrons. That doesn't make any difference. It's governed by the requirement that you have probable cause and a warrant from a magistrate before you conduct a search. And that's what the court held. I had a case involving putting a GPS device on a vehicle, the police didn't get a warrant. Actually, they were Keystone cops. They got the warrant, it expired before they used, before they put the thing on the car. They got the warrant in DC, they put it on the car in Montgomery County, Maryland. So there was totally screwed up. The government came in and said, right off the bat, we had no warrant because they had no valid warrant. And they followed this car for 28 days. The person who was convicted for drug trafficking was never found with any money or any drugs. The GPS device put him at the house where the transactions occurred, shortly thereafter and several occasions. And the person in the house turned state's evidence and testified against him. Codefendant testimony is often rejected by juries because of the motive that person has to testify in order to get lenient treatment himself. So everyone understood that the locational information from the GPS device was key to getting a conviction. And we said, you can't do that without a warrant. Now went to the seventh circuit and Judge Posner said, well, it wasn't a search, a seizure because it didn't interfere materially with the driver's use of the car. And he didn't have the search question. He went to the ninth circuit and they said, no, it's not a search. Judge Kaczynski wrote a dissent from the denial of re-hearing by the full court. The essence of his dissent was, trust me, I was born in Romania. I know what I'm talking about with the police. So they had a division now. We had said it was neither, it was not a search. So the court took it to resolve the question and they agreed, of course, this is just a search by another means. These are enduring principles. So to take one, what about airplanes? So I think there was an enduring principle at the founding that in Blackstone, that when you own land, you own it all the way up to the sky, right? That's your property, right? Now, the time they said that, it didn't really occur to them that we were gonna wanna fly commercial jets over large persons of the country and not have to say, oh, that's a trespass for every landowner has the right to stop it. And it comes up in the search context too. So when the police fly airplanes or helicopters over your backyard and see your marijuana plants, the court said it's not a search. So is that wrong? Is that one of those principles that we should? All right, on the property front, that's a state law matter. It's not covered by the constitution, as you know. But as for the federal warrant based on observation, the court has said, well, look, once you have traffic in the skies and the states have allowed it, it's open to public view, right? Just as if you put it in your front lawn. So you can't really complain that somebody sees it. Yeah. So now that makes us see, like we have a choice of analogies, right? So you could have said, and when the police look at your walls using a heat scanner, look, the heat on your walls is in public view. We didn't use to be able to see it so well, now we can see it using the heat scanner. Or you could have said about the airplane. You know, is it like having a street above your house? Or is it now the police are in your yard? Isn't it, well, it's a good line of questioning. I think in the case of the electrons, they're actually entering the house. Okay. But the alternative, we have two basic alternatives. Either when something happens that requires adaptation of the constitution, we ask the people, do you wanna change the rules, right? As Professor Strauss said, it's difficult. It was meant to be difficult, but it was also meant to be possible. And we've done it 27 times. And it may be 28 if the ERA passed in Virginia is held to be valid, right? So we took a constitutional amendment so you have an income tax to change the way in which senators are elected, to extend the vote to women, to introduce prohibition and to take prohibition out. Those were important matters and they deserve to be dealt with by amendment. And there are many, many others that should have been dealt with that way. The alternative is five lawyers can change the constitution. And I mean really changing, not just at the margins, but significant changes that you would think would be the subject of an amendment. Why don't I do the Commerce Clause? Okay. All right. Let's just take a look at that as an example. There it is, that's the Commerce Clause, right? Congress shall have power to regulate commerce among the several states. Everybody knows now and then that it means goods moving from one state to another. It's trade. And we can faithfully just call it interstate trade. All right, interstate trade. Ernest Hemingway slept here. Now they do. Descendants of Hemingway's six-toed cats. The Hemingway home is dedicated to preserving the legacy of Arthur Ernest Hemingway and of his cats. In Key West, anything goes. Chickens need no reason to cross the road or a license for that matter. But when the Federal Department of Agriculture got wind of the museum's cats, it dictated how they should be cared for. The museum challenged it on Commerce Clause grounds and said these cats are marooned. At the very southern tip of Florida, people never crossed the state line and for the more they were not bought or sold, they were merely born. To the Framers, Commerce meant, I send something to you in Boston when I'm in New York. That was interstate commerce of the kind that could be regulated. When two people in the same state traded something that was not interstate commerce and therefore could not be federally regulated, that was the intention of the Framers. The Framers didn't design an almighty federal government that could reach down right into your backyard or our backyard. During World War II, there was a farmer who grew grain and he fed that grain to his own animals. And the federal government had a program at the time that dictated how much wheat farmers could grow on their own land. And he said, hey, that's not constitutional. Why? Because I'm not engaged in interstate commerce. But in Wicker versus Filburn, the highest court in the land thought otherwise. And in a convoluted analysis, the Supreme Court declared that because that wheat would not be used in interstate commerce, it still impacted interstate commerce through some type of displacement. So they're taking the commerce clause and stretching it like a rubber band to apply to any kind of business when it was originally meant just to be for cross-border commerce, like it says. I agree, but some scholars disagree. In their view, there's little, if anything, beyond the regulatory authority of the federal government. In an economy like ours, things really are interconnected. And what goes on on one farmer's farm really does affect what happens elsewhere. And so when the Supreme Court says the interstate commerce clause gives Congress the power to regulate things that seem awfully local, it's not just engaging in some kind of trap to expand federal power. It's recognizing an economic reality. If the test under the Commerce Clause becomes does it affect commerce, then everything affects commerce, whether you do something or don't do something. Well, once you have the power over anything that affects commerce amongst the states, then you basically have the power over everything. Everything? Even Hemingway's cats? The 11th Circuit Court of Appeals, and I kid you not, said that because the museum features these cats on its website and has cat-related merchandise in its gift shop, that is a substantial connection to interstate commerce and that opens the door for the federal government to come in and exert control, not making that up. I love this case. So I think actually, I just wanted to show you what I think has come out of that. Go back. So there it is. It matters substantially affecting commerce. They just inserted the words. And if you look at the drift of cases over the years, I think substantially should really mean discernibly, but discernibly affects commerce, interstate commerce. So that is the basis upon which much of the administrative state built since the Second World War is founded. When I was at Cornell, Frances Perkins was still there. She had been FDR's Secretary of Labor. And when the Supreme Court held the National Industrial Recovery Act unconstitutional, it went down with it, a chapter that was the first National Labor Relations Act. The Supreme Court had said, in previous cases, labor relations don't affect commerce. That are not interstate commerce. Retailing, mining, manufacturing, labor relations, those are all local matters. So when the Labor Act went down, the administration wanted to send up a standalone labor act, which they did in 1935. She was at a cocktail party speaking with one of President Roosevelt's political advisers. And a member of the Supreme Court, whom she never would identify, passed behind them, having heard their conversation. They were trying to say, should we send up the new bill based on the power to tax or on the commerce power? And walking behind them, he heard this. And apparently his mouth full of cake or something. He said, the commerce power might do the commerce power. And that's what they did. And on April 12, 1937, it was upheld. And that began the revolution in changing the commerce power into anything affecting commerce. So most of what the agency, not most, much of what the agencies, many of the agencies in Washington, that have been created since then, and regulatory programs, even administered by older agencies, created since then, are based upon the commerce power. And they extend to matters that are not interstate commerce. So rather consequential matter for the Supreme Court to simply revise the Constitution. So can you help us? You started with enduring principles. So can you help us understand what exactly the original principle is and what the logic is behind it, I guess, in two ways? So you would think, when they're giving Congress the power to create a national economy and have free trade in the States, you would think the framers would want Congress to have at least some power to get rid of local obstructions interstate commerce. If there's a state that's stopping cars on their way through and creating problems in the national economy, even though the cars are in the state, you'd think the state would have some power to reach in. So what is the dividing line and why does it make sense? Well, when the Congress clause was drafted, it was clearly, I think, with the intention of creating a single market. Under the Articles of Confederation, each of the sovereign states had many of them that erected tariffs, non-tariff barriers. They would exclude out-of-state people from fishing in their waters. It was totally vulcanized. And the economy was in a deep depression, deep and prolonged depression. And that needed a cure. And the Congress clause was that cure. And the Supreme Court later, I think, with justification, inferred that, well, if that's what it says, the federal government can regulate interstate commerce, it must mean also that the states can't disrupt interstate commerce, fair enough, the so-called Dormant Commerce Clause, right? So repeat the question, Len. Well, so then I guess I'm wondering, doesn't that give Congress some power to reach into the state and say, look, if in your state the market for wheat is disrupting the national market because the prices are going out of the bottom and farmers can't make it, doesn't the national government have some ability to reach in? No, the fact that the powers are limited means there will be some things they cannot reach. And there are some subjects that are simply not covered by the Constitution. And anything not covered is specifically retained by the states or the people, respectively. That's in the 10th Amendment, as you know. So it's not the end of the world that the Constitution doesn't extend to something. A, it can be amended. And B, it may be just as well if it's not. Yeah. Well, I guess- You're just so used to, I mean, you breathe it like the air, right? This is the world we've got. It didn't have to be that way and it doesn't have to get worse. So we'll just, can we do the cats for a second? Sure. So earlier you were talking about electrons, how they go through the house. So the internet is electrons that go all over the country. Can Congress regulate the internet or is that somehow beyond Congress's powers? To do what with the internet when you say regular? Well, within their commerce power. Can they say, anytime anybody sells anything on the internet, we can regulate that? I think they, well, first of all, I'm not sure they have, specifically the interstate to the internet. In other words, there are prohibitions on selling certain types of goods, just because you're doing it on the internet doesn't mean you can evade that prohibition. Right, but that means, can Congress, can I just say, look, if you wanna sell cat lamps on the internet, which I guess the Hemingway House does, we have the power to regulate the sale of cat lamps as long as you're using the internet because that goes across state lines, right? Perhaps. So isn't that, I gather what they did at the Hemingway House, they said, look, if you guys wanna sell cat lamps and other kitschy cat merchandise, we're gonna impose some regulations and one of them is a regulation on your... If the cats have to be cared for in a certain way, there didn't even have to be any cats to sell the cat merchandise. Right, but there were. And the cats have nothing to do with interstate commerce except being the cute subject of the implements that are then sold in interstate commerce. Yeah, but isn't that within, I mean again, if Congress can regulate what you sell on the internet, then can't they say if you want access to the privilege of the national market? Actually, I'd say maybe they can regulate what's sold on the internet only if it's being shipped interstate. I don't know, we haven't talked about that. I mean, as a nation, Congress hasn't confronted that yet. There is a certain balkanization of the internet on an international scale. Eric Posner and Jack Olsmuth have a book about that who regulates it, who controls the internet. So for instance, in Australia, a defamation case was brought by someone in Australia against the economist of London because the court upheld it because the economist circulated via the internet in Australia. Sort of like our New York Times against Sullivan case. But anyway, you're at a margin where you're asking about could the Congress do something that haven't yet done? Think about all the things they've done that they can't do. Fair enough, fair enough. So I guess I'll take one more textual tilt at it. And this isn't on your slide, so it's a little unfair. But there is another clause of the constitution that you know about called the necessary and proper clause that on top of the commerce clause says Congress can also pass all laws that are necessary and proper for carrying into effect those laws. The enumerated powers. The enumerated powers. So don't they get to add something? Don't they get to say, we get to regulate commerce and then we also get to do other things on top of that that are necessary and proper for regulating commerce. And wouldn't that be things that affect commerce? So we got our. No, no, okay. It would be things necessary that should be done in order to regulate interstate commerce. Yeah. So could they say, we want to have a national market in wheat and we want to have regulation of the national market in wheat, the interstate market in wheat. And then to make that work, to be able to have interstate wheat quotas. It may not be workable. Well, it may not be workable. Go ahead. To have interstate wheat quotas, then it's necessary and proper for us all to have a bully poor farmer. You know, they could actually just readily have adjusted the quantities involved to account for the fact that some wheat's gonna be grown in state and cannot be reached by the regulation. So the amounts and the clauses dealing with that that does move would, in fact, this was a crop control regulation. So they were saying, do not grow more than X. So if you know that people are gonna feed their animals a certain amount, you would reduce X. Yeah. Right, for the person for interstate shipment. So now I guess you started with this theme of do we really want five justices just deciding everything? That's the alternative, yeah. Yeah, and I guess, but I do wonder if Congress thinks something is necessary and do we think five justices know enough to be able to say no, it's not really necessary. But it's necessary to perform one of the enumerated powers. Yeah. That's, so clearly there are gonna be questions of necessity that happen, but it's always necessary to the completion of it or the exercise of an enumerated power, not one that's not enumerated. And the court gets to decide that? Is that? The question of necessity? Yeah. Inevitably, right? It says right in there. Mm-hmm. So. So this has been a theme throughout and now I wanna press you on this, which is you started by telling us these were enduring principles and already you've shown us all the way they're not actually enduring principles. Why is that? Well, you've shown us that the court violates it. Oh yeah, absolutely, no. If the Constitution, if they took seriously the text, they wouldn't be disabled as people are concerned with dealing with modern technology. Yeah. All right, which is most of what people think of as the reason why the Constitution is somehow out of date. Yeah, but if we're not taking the Constitution seriously anymore, does there come a point where we give up? Does there come a point where we say, I guess the Constitution is really a museum piece in the National Archives and not, does it take seriously? Well, I'm not there yet. Me neither, but. I'm not making sure you are, right? But a lot of people are. So I think before we do that, we should ask ourselves whether there aren't things that we really wanna preserve or even restore. And if I can briefly do, we have time for questions, very briefly, take the separation of powers. Absolutely key to the design of the Constitution. Three different branches, each exercising specific powers. The court then, Congress, when it creates these administrative agencies, in many other instances, says you may issue regulations that have the force of law. You may be, act as the prosecutor, an executive function, so they're legislating. Now you're prosecuting. And by the way, you can be the judge too. So there's have these internal tribunals in the agencies that are, Madison called this the very definition of tyranny, this combination of functions. And it's all around us. That does not have to be, and indeed, I think that will be tested in the Supreme Court again in the next year or two, because the cases are being formulated and bubbling up. But that was authorized in the 1920s, I think, right? In the case of the Federal Trade Commission. And then it proliferated with the Congress creating many more agencies that can do this. And the Federal Trade Commission and the Department of Justice Antitrust Division both enforced the Sherman Act. The Federal Trade Commission enforces it in its internal tribunal. The Department of Justice has to go to federal court. There's no excuse for letting the Federal Trade Commission not go to federal court. Instead, imposing this regime, which delays, someone's eventually can get to court, delays them by a couple of years and poses great expense. And it's totally unfair. In 20 years, the FTC never held that anyone was not guilty, okay? Or violating as charged. So the administrative law judge, in about 20% of the cases, said at least one of the charges was not proved. And in every such instance, the Federal Trade Commission said, oh yes, it was. I asked the chairman of the FTC, not the current chairman, twice removed, I think, how she could account for this. And she said, we're very good at case selection. And the Department of Justice isn't, right? So anyway, I guess we should turn to questions rather than the, what was it, the takings clause. So if anyone has questions right now, if you want to come line up right here. Everyone with a question is invited to come to the center. Judge and professor, take it as an honor to ask a question. I'd like to ask you your opinion on what I consider to be a kind of a discrepancy that the president of the Senate expressed, I believe it was Friday night, when he was rebutting the House managers' arguments. And one of the sentences that stuck out was, he said that you need specific charges in an impeachment article. And that the constitution requires specific charges, and that he says he didn't see any specific charges in the two articles. First article being abuse of power, second article being resisting Congress. Or yes, so, yes, obstruction of Congress. However, in the first article of a bribery call, the House managers did include a specific charge of bribery. At least the word is mentioned. So I don't know if that constitutes an actual charge, but it's definitely in that first article of impeachment. And in section four of article two of our constitution, there is the sentence that president, the vice president, and all civil officers of the United States shall be removed from office on impeachment for in conviction of treason, bribery, or other high crimes and misdemeanors. So I'm just doing a simple matching game here. I'm seeing bribery in section four, and I've heard bribery in the first article of impeachment. I said I haven't followed this but closely, but I thought I heard commentators saying that the bribery was withdrawn from among the charges that were considered in the House. I don't think there was an attempt to formally approve bribery, so that may be one of the sources of this discrepancy. There was this interesting sort of enduring debate about whether impeachment has to be for a crime, because there are these clues in the constitution where it talks about punishment, talks about trial, that kind of make it sound like a crime. But on the other hand, a lot of bad things we can imagine a president doing aren't necessarily crimes. So one of the things they had to debate was the kind of the original meaning of the constitution. Does a high crime or misdemeanor have to be a kind of crime in the technical sense or just a crime against America? Well, it certainly sounds like crimes. On the other hand, I think there were some instances in British history of which the framers were intimately familiar, in which there may not have been a specific crime. I mean, when the King took refuge in Paris as a host of the King of France, this would have been Charles II waiting out the crime welly in Eregnum. I believe that that was a basis of our charge. Yeah. But, and it may not have been a crime. I mean, you could call it treason, but I don't think they did. Yeah, it doesn't rise to the level of treason, yeah. So not a very crisp answer, but sorry about that. I'm much more interested in 1791 than 2019, 2020. Me too. Hello, I have two questions, Judge Ginsburg. First, over the last 30 years, what is the worst thing that has happened with regards to our constitution and what is the best thing that has happened to it in your opinion? Are those the two? Or is that one? Yeah, the second question. It's gonna roll out here. If you could give one piece of advice on any subject at all to Senate Majority Leader Mitch McConnell, what would that advice be? I'm not sure it's the worst thing that's happened to the constitution, but one of the very bad things that's happened to the constitution is not done by the courts at all. It is the draconian jail sentences imposed for federal crimes that make it impractical for most defendants ever to go to trial. The right to a trial has been severely compromised. If you're looking at 20 to 30 years for what might seem like a fairly, not mild, but not a life-threatening crime that is punished in all of our pure countries by a much lesser sentence, and you have the option of taking three to five years in prison by pleading guilty, even though you don't think you were, it's almost irresistible. And so a new judge in our district court didn't have a trial for the first year. It's just not practical. I think that's a terrible imposition on the specific they give and write to a trial, but they've set up a deal and they take the deal. As for the best thing, it might be the appointment of Neil Gorsuch. He was a student of mine briefly. I have an enormous regard for his integrity, and I think he'll just be, he was the best possible choice at that time, as was Merrick Garland when President Obama chose Merrick Garland, my colleague. Do you think Neil Gorsuch is a faint-hearted originalist? No, no, that's why I'm very hopeful about him. And the second was advice for the majority leader. Well, since I can't charge for advice, and I could be charged for advice, I certainly shouldn't do that. There is a code of conduct for federal judges that keeps us out of those waters. First of all, thank you both for giving us this wonderful evening. And then in the interest of disclosure, I'm a 1L of law school and I was in Professor Boat's elements class. Congratulations. Thank you. So I would admit I'm pretty sympathetic to the living constitution view. And I guess I just, I would love to give my, how to put it, I would love to give the strong argument in favor, but I don't think I'm a match for the two of you. And so my question is, if you could channel Professor Strauss or Justice Brennan, Holmes if you like, and just give us maybe the, what the living constitution advocates would say negatively about a world where we really adhered so strictly or alternatively, a different way of phrasing it would be, what is the, what things about the federal government regulating interstate commerce broadly expanded now, what would you miss in your world that the federal government does now? First, let me say, I think, read Professor Strauss' book, The Living Constitution. It is, it's the, oh you have, okay. Well then you've been exposed to, I think, very good arguments. Then they show, you see him saying, that the, his objective is, or the objective of the living constitution approach is to get to the constitution we should have. Well, that's, maybe the constitution should be improved, but it shouldn't be improved by judges. And I'm not sure I get the rest of it. Is it all bad? Is there anything? Anything good that's come out of it? The last temptation is the greatest reason, to do a right deed for the wrong reason. Even if something I thought was well functioning that the federal government doesn't, I'm hard pressed to think of anything except the military. Even if I thought there was something they did well, and I thought it benefited me, I would still rather do without it than have it come by your legitimate means. I'm protected by the securities laws, for instance, against fraud. But I'd much rather see private institutions protect me, or the constitution amended to allow it. Thanks, judge, for being here. I have a question about antitrust law, actually, not constitutional law, if that's okay. What do you think? Let's hear it. Is it unconstitutional? Is that your question? So there's been a lot of talk in the last couple of years in certain circles to kind of revise the consumer welfare standard in favor of a broader conception of the purpose of the antitrust laws. And I'm wondering when, if ever, you see that view moving into the way the judiciary thinks about these issues, or will we need congressional action before that can happen? Well, the Supreme Court has been wedded to the consumer welfare standard since 1977. And as a result, they've gone through an overruled half a dozen cases. At the same time, they say they're very reluctant to depart from starved incisors. They were just, these were all vertical restraint cases. I'm sorry we're getting away from the constitution. But anyway, I don't see the court departing from that. And the dissents that you see in antitrust cases in the Supreme Court are virtually never for based on departure from the economic approach of consumer welfare approach. Justice White, I think, wrote the last one in 1979 in Sylvania. So can I, so one of the things the court often says about the antitrust laws is that they are sort of a common law statute that Congress enacted this short statute. You read it on its own. It doesn't really answer any questions. So we, the five judges have been put in charge of updating and fixing them. So is it fair to say that we have a living antitrust law in contrast to the living constitution? It is. The court has said when the Congress passed the Sherman Act, they didn't freeze the common law as it then stood, but rather made it into federal law, as opposed to state law, and allowed it to continue to evolve as the economy evolves. I think it's unique in their saying it's a common law statute. So referring back to the first question about what would constitute a crime under impeachment, the emoluments clause says no person holding any office shall accept, I want a monument present and so forth. And so it's not saying that anyone who violates this law shall be sentenced to 10 years of imprisonment. But similarly laws like the Empowerment Control Act sort of lays out what executive officers have to do and that was passed specifically to prevent the president from not spending money that Congress appropriated. So although that clause of the Constitution or the Empowerment Control Act aren't criminal statutes, they do state with great precision what an executive officer should be prohibited from doing. So would that be the basis for defining a high crime or high misdemeanor? A violation of the impoundment act? Yes, but it's a similar idea with the emoluments clause. The emoluments clause was litigated by the state of Maryland. They lost, I don't remember on what ground. Was it standing? Standing. Standing, so it wasn't out. But that exactly that meant that certain people brought a case but suppose the House of Representatives impeached the president, that would be a very different kind of put in a very different posture. But I think if that were the case they would put it under the bribery because it's much more direct. Why deal with emoluments, it's so vague. Well, but that's part of the point that it might not be bribery as, bribery also has a certain precision as does treason. But if a foreign power has given favors to a person who becomes president or is president, it may not be bribery, especially as the McDonald cases made that a very difficult. We have laws prohibiting acceptance of gifts from foreign nations. The presidential libraries are full of the gifts that the presidents received because they couldn't keep them. So I don't know why foreign governments continue to do this but knowing full well it's gonna go into an archive but they seem to do it. I'm not even sure they can't. So this is one of the issues that comes up in the litigation of the emoluments clause is whether the clause actually applies to the president which is one of these things that it seems like it's obvious that it does. It seems like it's obvious that every executive officer can't take foreign gifts. But the clause actually refers to an office under the United States. And when you start digging around in the constitution there are all these times the constitution has these different phrases, office under the United States, office of the United States. And there's a brilliant scholar named Seth Barrett Tillman who years before anybody ever cared about this wrote a series of obscure academic articles where he showed that you could actually chart all the different meanings of office and they all had different meanings that made sense and that also explained a lot of early practice. And one of the things he discovered was that office under the United States seems not to include the president and it explains why George Washington took some gifts, the key to Paris from the Marquis de Lafayette and some portraits and actually kept them personally. So he's now like at the center of this litigation and a bunch of law professors say he's wrong and at some point people went into the National Archives to figure out whether or not Alexander Hamilton had made some marks on a piece of paper that might suggest he had a different thesis. The courts are now full of this but it turns out even here is one of these areas where that's really why it's important that it be brought by an impeachment because that would presumably mean it would not be brought for frivolous incidents of gifts or there would have to be- Well I guess the House didn't pursue that. I don't know why. The Senator from Illinois, Everett Dirksen said everything one should need to know about ethics in Washington. There are thousands of pages I suspect of opinions on ethics issues. Dirksen said, if you can't eat it or drink it in one sitting, don't take it. It's a long way. If you've been here to that, you're okay. Unfortunately, under the current environment, even if you could eat it and can eat it in one sitting, you may not be able to take it after reimburs your host at a dinner party. We have several more questions but we're gonna take just one last question. Hello, so I have two questions but they will be short. Nobody cares for the rules. The first one I'm trying to clarify me to myself your position. So in the video earlier, I thought that you were trying to say that it's important that nine justices of the Supreme Court will not change the original meaning of the Constitution because that will create that the land of the law will not be certain, it will be vague and we will not know what it is. But I don't really understand that if that's the reason to adopt the approach that you're advocating here. It's one reason. Another reason is that it takes matters out of the democratic process and resolves them by a majority of five on the Supreme Court. That's a very important additional consideration. Okay, so that's a different one. And to give you, we don't have time to go through the takings clause but it does say that private property may be taken by the government for a public use with just compensation paid. And 10 to 11 years ago, the Supreme Court had a case involving a condemnation of that property that was being taken to create an open space so that a company could build a campus there. And this homeowner didn't want to sell her home and move on. And it wasn't blighted, it wasn't a slum, nothing like that. But the city council said, we need the tax revenue, we'll get much more tax revenue from this office campus than we can get from these houses. And so to simplify it, the Supreme Court said, is it a public use? Well, public use might be a school, a road, a post office. In the 19th century, it became a railroad as well. Well, it's a public purpose. That's enough. City council can decide what their purposes are and if it's a public purpose, that's good. That was rejected by 46 states, mostly through statutes, others through judicial decisions, saying we will not do that. The federal government can still do it because of the Supreme, and those four states because of what the Supreme Court's interpretation, highly destabilizing to property. And done autocratically, just changing the meaning of the phrase. Okay, that's more convincing. The second question I have is, I'm trying to push, where would you go with your approach? Let's say that I'm a federal judge and there is a line of cases that interpret, let's say, the commerce clause in one way that, in your view, is contradicting the original meaning. Should I go and decide it along with the president, the long president of line of cases of the Supreme Court that decided it in one way, or should I be adhered to my obligation to the original meaning of the Constitution? Supreme Court grades my papers. So, I mean, it would be a totally lawless environment if the lower courts were not following what the Supreme Court has said. Ultimately, it's the responsibility of the Supreme Court to get it right. And there are many questions that have never been before the court. There are novel questions. The lower courts should be adhering to the original Constitution, of course. Thank you, Judge. That's it? Yeah, thank you very much for coming. Thank you. It's an amazing discussion. Too well, thank you. Thank you. Thank you. Thank you. Thank you, Professor Boad and Judge Ginsburg. I wanna thank everyone for coming out tonight. I hope you all enjoyed the program. If you'd like to purchase a copy of the book Voices of a Republic, it's out in the lobby here. And then if you'd like Judge Ginsburg to sign the book, he will be in the library in a few moments and will be happy to sign copies of the book as well. Yeah? The book is contributions from about 75 people in different walks of life with their thoughts about the Constitution and what it means to them. People like Sandra Day O'Connor, Ruth Bader Ginsburg, Mr. Sellsberger from the New York Times, and so on. Thank you. Thank you. Okay.