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So to Speak podcast transcript: The United States Constitution with Judge Douglas Ginsburg

So To Speak: Judge Douglas Ginsburg

Judge Douglas H. Ginsburg is the host of the new PBS television series about the U.S. Constitution, “A More or Less Perfect Union, A Personal Exploration by Judge Douglas Ginsburg.”

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: All right. Judge Douglas Ginsburg, thank you for coming on the show.

Douglas Ginsburg: Well, thank you, Nico. Appreciate it.

Nico: So, yesterday was Constitution Day. We are going to be talking about the Constitution today. And one of the things that “A More or Less Perfect Union” makes clear is that interpreting the Constitution can be a somewhat tricky and controversial business.

Now, today, originalists and others often fall back on appeals to what the framers thought when the Constitution was drafted. And this leads me to wonder, and it’s discussed a little bit in the documentary. Was interpreting the Constitution easy in the years following 1787 and 1791? After all, in those years we could actually ask the framers what they intended.

Douglas: Well, I don’t think that was done, although in the very early years, some of them served on the court for a few years. But interpreting the Constitution, I think, was much more of a disciplined craft that we inherited really from the English legal tradition and refined for 150 years as colonies so that it was not something that was so controversial as it is today. There were not separate schools of thought, particularly, about constitutional interpretation.

Over the years, that’s changed. And now there’s really a school of thought associated with the so-called living Constitution that in my view really takes interpretation to the point of revision and authorizes judges to revise the Constitution in order to meet contemporary circumstances as the judges see them.

And, of course, the framers had provided Article V, a process for amending the Constitution. They understood that it would need to be updated if you will – that they couldn’t anticipate everything. And it has been amended by that Article V process 27 times, although the first 10 – now known as the Bill of Rights – came immediately in the two years after the signing of the Constitution with a ratification I should say, but another 17 times since then dealing with things that were thought to be so terribly important that it really could command two-thirds of the states to agree, a majority in each House of Congress.

So, that is an onerous process, but it was meant to be. And what we’re finding now is the Supreme Court willing to effectively amend the Constitution under the guise of interpretation. And every so often, this happens in some matter that’s terribly important, and the public learns about it or gets riled up about it as though it were a bolt from the blue and not something that’s happening on a more or less regular basis and something that we should be concerned about all the time.

Nico: So, Marbury v. Madison was kind of the case that determined that the Supreme Court – and I’m not a lawyer, so I’m going on recollection here – kind of the Supreme interpreting what the Constitution’s intention was when there is a dispute. Is that correct?

Douglas: Well, in retrospect you might see it that way. It was not regarded as an enormously important case at the time. It was regarded as somewhat political because if you remember the facts, Secretary of State Madison had failed to deliver the commission to – pardon me. Marbury was given a commissioner’s nomination and approved to be a low-level magistrate in the District of Columbia. He didn’t get the commission, wasn’t sworn in before the change of the administrations in March. So, he sued the new Secretary of State Madison to deliver his commission.

And the actual holding in the case is that the Supreme Court did not have jurisdiction because this kind of case didn’t come within the constitutional description of the kinds of cases it could decide. The upshot was though that it was a blow in the constant battle between federalists and anti-federalists at the time. But it was not a case that established supremacy let’s say in interpreting the constitution. That really comes along only in about, I think, the 1960s, maybe even 70s.

So, there were instances in which the Executive did not acquiesce in the Supreme Court’s interpretation. President Jackson defied the court in one case saying, “They’ve made their order. Now where are their troops” – something like that.

When President Eisenhower was called upon to enforce the Supreme Court’s decision on school desegregation – this was in Arkansas in probably the late 50s – he had to decide whether to do that. And his political advisor was telling him that he shouldn’t enforce the decree, and his attorney general was telling him that he really should enforce the decree and that it was important to the rule of law in our country. And, of course, the president did just that and federalized the National Guard to enforce that decree desegregating the schools in Arkansas.

So, it’s really around then and shortly thereafter that we have sort of gotten accustomed to the idea that the Supreme Court is the final word on the meaning of the Constitution.

Nico: Is there really anything stopping a president or anyone else from ignoring the word of the Supreme Court? I imagine the court’s martial service isn’t robust enough to take them into jail perhaps, especially if they are commander in chief and have an army behind them.

Douglas: The court issues judgments, which are just a piece of paper telling somebody what to do or not do and does not have the capacity to enforce its own judgments. I think it was Hamilton who wrote in The Federalist Papers – the court has neither the power of the purse nor of the sword. And that made it the least dangerous branch.

Well, that’s evolved a bit in terms of how dangerous it is, but it still doesn’t have the power of the purse or of the sword, and it depends upon the Executive to enforce its decrees. The Executive felt a sense of obligation to do so, I think, is an important part of the rule of law, as we know it in this country.

Nico: It really hammers home the point that the Constitution is just a parchment barrier. If folks choose to ignore it, there’s in many ways nothing standing in their way.

Douglas: Well, that’s right. And when that’s happened, we’ve historically had a public that imposed enough discipline by rejecting the idea of Congress or the Executive disregarding the courts. But I’m worried, frankly, that today we have so many people who have been graduated from high school say in the last 20 years who have never had a civics course, who may never have had a course in American History. And without a reasonably informed electorate and an engaged electorate, a democratic republic just can survive very long.

Nico: So, Benjamin Franklin after the signing of the Constitution or after the document was complete, he said, “I confess that there are several parts of this Constitution which I do not at present approve. But I’m not sure I shall never approve them.” There was a lot of debate at the constitutional convention, a lot of disagreement. In many ways, it’s a compromise document. What would you say were the main sticking points between the delegates in drafting the Constitution?

Douglas: Well, I think there were three, and two of them were compromised with more or less success. There’s a reason for calling the series, “A More or Less Perfect Union.” The two that really emerged most clearly in the debates were the question of – one was the question of how the states would be represented in the new congress. In the constitutional convention, each state had a vote. There were 13 votes.

In the previous Continental Congresses, that was also true. And that was a possibility. But Madison had introduced this idea of two chambers chosen on different bases with different terms of office with different constituencies, which was quite brilliant really. And I think that was widely and quickly accepted.

But the question then became – how to determine representation in the House of Representatives? And the large states said, “Well, we should do it by population.” And the small states said, “No, it should be one state, one vote.” That had to get resolved partly by having the two chambers, but also the southern states wanted their slave population counted.

They had to be counted in the census every 10 years. And the census determines both the number of representatives each state has in the house and in the Electrical College for the presidential election.

So, the compromise there was to say, “Well, we’ll count the slaves by three-fifths of their number.” And a lot of people have the misimpression that this meant that a slave was sort of three-fifths, which wasn’t the case at all. It was that the northern states said, “Look, you’re treating them as property, not persons. You don’t let them vote. They shouldn’t be counted in these ways of determining the number of members you have in the house.”

And the southern states, the slave states, said, “On the contrary, they should be fully counted.” And the result was simply this three-fifths. Why it wasn’t one-half, I don’t know. But it was three-fifths. And that’s all it is, a political compromise so that we were able to have one rather than two countries on this Atlantic seaboard. The result was that the South was way over represented in the house, and five of the first seven presidents were from the South, indeed from Virginia.

Another major issue that divided the members and the framers and was not compromised at the convention was whether to have a Bill of Rights. And George Mason from the Virginia delegation and several others refused to sign the ultimate document for just that reason. Mason had drafted the Bill of Rights for Virginia and thought it was extremely important that there be a Bill of Rights in the national Constitution.

The counterargument was to say, “Look, we’ve got very limited and enumerated powers being given to this new national government that we now call the Federal Government. We don’t need to enumerate a Bill of Rights. And it would be impossible ever to list all of the rights that people retain and are not giving to the government because it’s everything that’s not explicitly given to the Congress of the new government.

So, at the end, Mason walked out. He said, “I’d rather cut off my right hand than sign the document.” Now, that became a continuing issue in the ratification process in which it was resolved only because when Massachusetts was in convention trying to decide whether to ratify the Constitution, the members there, the majority, didn’t want to ratify it because there was no Bill of Rights.

And Governor Hancock who was chairing the convention proposed a compromise if you will. He said, “Let’s sign it. Let’s ratify it on the express understanding that a Bill of Rights will be added immediately.” And that’s what Massachusetts did, and three or four states followed suit. And that put it over the threshold necessary, nine states, for ratification. And then all of them signed on.

And it meant that in the first Congress, James Madison had the task of drafting the Bill of Rights. Now, the federalists and the anti-federalists had very different ideas about what should be in a Bill of Rights. Mason and the anti-federalists, they were worried about a too powerful Federal Government. So, they didn’t want a standing army, for instance. They wanted a provision that said “no standing army.” They wanted the jurisdiction of the navigable waters returned to the states whereas the Constitution had given it to the Federal Government.

Madison, however, was not of that view at all being a federalist and thinking that the national government had to have those powers. He solicited suggestions for what should go into a Bill of Rights from the public and anybody who wanted to submit. I think he had about 200. He sifted through them and proposed 12 and then had difficulty getting floor time in the House of Representatives.

He was in the first Congress coming from Virginia. He finally got it through the House, took it over to the Senate – same thing. People were not interested. It was yesterday’s problem, yesterday’s debate, managed to get it through and out to the states for ratification. And the states ratified only 10 of the 12. So, what we now call the First Amendment was the third on his list.

Nico: Yea, people often get that wrong. They say that – well, the First Amendment, it’s the most important amendment. That’s why it’s first. No, no, no. There were two before it that didn’t get ratified.

Douglas: We just got lucky that it’s the first. It is the most important in a way because it has so much in it – freedom of speech, freedom of the press, freedom of religion, freedom of assembly. These are terribly important. And I’m sorry to say, but for most people that’s all they know about the Constitution. Many of our fellow citizens have not read it let alone been instructed in it, taken a course in it, and really have no idea what’s in it.

Nico: I wanna get to the First Amendment. But before we do, I wanna ask you about this federalist/anti-federalist Bill of Rights debate because on the one hand you have a Bill of Rights, which more or less are enforced. You can make an appeal to the First Amendment. You can make an appeal to your due process rights. But you have that Ninth Amendment, which has been described as an inkblot, which was supposed to catch all those other rights that were not enumerated that doesn’t really do much of anything.

Douglas: It’s never been used by the Supreme Court, not once.

Nico: So, were those arguing that we shouldn’t have a Bill of Rights because then the only rights we would have were the ones that were enumerated correct in their analysis? Or should the framers – if they could do it all over again, do you think they would go back and make an even more expanded Bill of Rights recognizing that in practice only those things you enumerate are gonna get protected?

Douglas: All right. First of all, I just don’t wanna let it go without comment. You say, “Well, those rights are secure.” You can always rely on –”

Nico: Well, yea. So, you know I do First Amendment work.

Douglas: I think they’re always at risk, frankly, and right now in particular.

Nico: But it’s clear that those are rights to which you can appeal because there’s at least something like them written down.

Douglas: Right, right. So, the Bill of Rights didn’t play any role in our national life really until the period around the First World War. There were no First Amendment cases until then. The Supreme Court litigation just rarely if ever involved anything invoking the Bill of Rights. And then because of the suppression of free speech, particularly the speech opposing the draft and the First World War, there were a lot of people imprisoned. And those cases found their way to the Supreme Court. That started the ball rolling.

So, I think it was 1931, and Near v. Minnesota was the first time that a state law was held unconstitutional under the First Amendment. And indeed, we have a provision in the First Amendment prohibiting the establishment of a religion, but there were established churches in a few of the states. And in Virginia, in my state, what had been the Anglican Church was the established church until about 1819 or something like that.

That didn’t mean that people had to attend, far from it, but they were taxed to support it. And that was never litigated as far as I know, never challenged.

So, what would the framers do in light of what happened? Well, there was a correspondence between Jefferson who was off in France and Madison who was living through this whole debate. And, initially, Madison was against the Bill of Rights and prevailed in the convention not having a Bill of Rights.

When he ran for the first Congress from Virginia, he was gerrymandered into an anti-federalist district. So, he had to follow through with a Bill of Rights. But the anti-federalists ideas of rights were very different as I was suggesting, things like no standing army. So, he did sort of a bait and switch. But in his correspondence with Jefferson, he said he’d changed his mind.

So, Jefferson had taken the view just as you described that if you enumerated the rights, then anything left out would end up falling by the wayside. When Madison wrote that he changed his mind, he said, “I think it will do no harm. And if it causes people to venerate the Constitution, it will do much good.” So, it turns out they were both right. How brilliant is that?

Nico: Yea.

Douglas: Right? It’s the only thing that people know about and does cause them to venerate the Constitution, even if they’ve never read it. And as Jefferson anticipated, if it isn’t written down in the Bill of Rights, you probably don’t have it.

Nico: So, do you think it was a mistake then, the Ninth Amendment? Or do you just think that courts have done a poor job of recognizing un-enumerated rights, which could include – and I think many would assume include – the right to travel, the right to marry, etcetera.

Douglas: Right. So, what happened is that the Supreme Court has resorted to finding those rights not in the retention provision of the Ninth Amendment that rights not given to the government are retained by the states or the people respectively but rather by finding them in other ways – in other provisions of the Constitution. As you said, the right to travel, the right to marry or not marry, the right to educate your children as you see fit, which came up when it was controversial to teach German probably during the first war. I don’t remember.

So, the court has found ways, but they’re atextual ways. We improvise as it were. And we would be much better off, I think, if these things were actually in the Constitution or the Supreme Court used the Ninth Amendment to say, “Well, it’s one of those retained rights.” Because what were we fighting for? What was this Constitution to give us? It was to retain the rights of Englishmen. And the parliament just couldn’t regulate your daily life. That was not part of the social contract.

Nico: One of the things that if you talk with your friends or family about the Constitution that they don’t realize is that originally senators weren’t elected directly by the people. They were elected, if I’m not mistaken, by state representatives. Why that decision initially?

Douglas: That is one of several counter-majoritarian elements in the Constitution. The framers and indeed all educated people of their era understood democracy as being mob rule. So, they were intent on avoiding anything that simply enabled a majority vote to prevail by itself. So, you have the two chambers for instance and requiring the president’s signature or an overwhelming majority of both houses to override that.

You have a court system where the judges are appointed for life in the federal system, and they’re salaries cannot be reduced, again, to make them independent of the popular majority. And electing the Senate to represent the states instead of the people was one of those measures. The House of Representatives was the people’s house, and the senate belonged to the states. Now, I think it’s a good question as to why that was changed in the Seventeenth Amendment, which was under the very forceful influence of the original progressive movement and people like Woodrow Wilson who thought our Constitution was just terrible.

So, what happened was that several of the states – many of the states, actually – had already gone to the idea of improvising a form of majority rule of a popular election of the senators. So, for instance, members running for the State House would be asked to pledge that they would elect electors to the Electoral College who would follow the popular vote.

So, enough of that had taken hold in the states that when the Seventeenth Amendment was proposed, they basically were just forcing it on the minority of states that were holding out. It was, I think, a terrible mistake – a grave misfortune for the Republic because it meant that the power would flow to Washington and away from the State Houses. It has a very centralizing effect. And, basically, no one represents the states as a state or a state government in the halls of the Federal Government.

The Supreme Court got that completely wrong by the way in a case involving the Fair Labor Standards Act of minimum wage and maximum hours. And they had been asked whether in a case coming from San Antonio whether it was binding on a municipality because they had firemen working 30-hour shifts or what have you, and they were 24-hour shifts. And they didn’t wanna pay 16 hours of overtime after the first eight. And the court said, “No, they’re not bound by that.”

And only 10 or 12 years later, they reversed themselves in another case and said that they were bound by that. And if they didn’t like it, they were represented in the Congress, and they could get it changed. Well, of course, the states are not represented in the Congress. It was a complete misconception by the Supreme Court.

Nico: I wanna ask you about the Fourteenth Amendment, incorporation doctrine. How did the framers initially conceive of rights within a state law framework? The First Amendment, for example, says, “Congress shall make no law.” But we’ve since incorporated that and many other rights enumerated within the Bill of Rights to apply to the state level as well. Did the framers think that states could run roughshod over these inalienable rights if they wanted to?

Douglas: Prior to the Fourteenth Amendment you mean?

Nico: Yea.

Douglas: Well, I’m not sure I would put it that way, but it was up to the states as sovereigns. The only requirement of the Constitution was that the states maintain a republican form of government. And as long as they had a republican form of government, they could do what they wanted to do. So, Virginia had an established church. Many things were done that we would think of today as being contrary to free speech and other First Amendment rights.

Those were simply left up to the states. Bear in mind and we try to bring this out in the show, in “A More or Less Perfect Union.” This convention drafting the Constitution was facing the question, not what should a national government look like, but how much power can the states be persuaded to give up? Because they had all the power.

During the Revolutionary War, the Federal Government to the extent there was one – the Continental Congress – could not levy a tax, could not support an army. They had to rely on the states to do that. So, you need to sort of have a historical imagination to recreate in your mind what the world was like because it’s so different from our world today.

Nico: I wanna ask about the Articles of Confederation then, which preceded our Constitution. Did these contain a Bill of Rights analog? Or was it even more deferential to the states. Well, I know it was but –

Douglas: Oh, yes, absolutely. It didn’t give the Federal Government any substantial powers. It was really more like a treaty of friendship among the 13 sovereign states and didn’t create a national government with its name. It simply created the Continental Congress. But they’ve had only such powers as the states would allow them. And as I say, even during the War of Independence, that was the problem. That was the prevailing governance.

Nico: So, the First Amendment, that’s obviously the work I do at the Foundation for Individual Rights and Education. In “A More or Less Perfect Union” –

Douglas: And by the way, I know you’ve seen the show. So, your listeners should know that Alan Kors –

Nico: Yea, our cofounder.

Douglas: – cofounder – is an important commentator in the show.

Nico: I should also note that you interviewed one of my other colleagues, Clark Neely. I used to work at the Institute for Justice. So, I worked with Clark on some of the cases that are actually discussed in the show. If we’re talking about the First Amendment, the tour guide-licensing regime that Savannah, Georgia, had.

Douglas: Right. My court here held that the same scheme was a violation of the First Amendment. And that’s when the City Council of Savannah gave up.

Nico: So, for our listeners who haven’t yet watched the show and I hope after this interview will, the City of Savannah essentially had a licensing scheme for those who essentially wanted to tell stories for a living. Not only did you need to have your business license, but you also needed to take a test about Savannah history and pass that test in order to give licensed tours.

But the test in many ways had no connection to what a lot of these tours were actually about. A lot of these tour guides gave ghost tours. The City of Savannah did not test them on ghost stories. That first case in the District of Columbia, which also had a licensing scheme, was kind of the one that paved the way for the Institute for Justice, which litigated a lot of these cases to challenge other laws in other cities. And many of them have been struck down – Savannah, District of Columbia. And lo and behold, the sky has not fallen.

But you talk a lot in “A More or Less Perfect Union” about some of the restrictions that we’ve seen in American history on freedom of speech.

Douglas: The Savannah example was meant to bring home that it’s not just the Federal Government that is anxious to – or look inclined to invade people’s rights. It can happen right in your local community or at the state level. It’s the nature of government that the politicians want more authority or power as we might call it. And if they get more power, you have less.

Nico: So, the First Amendment begins – Congress shall make no law. And you discuss in the documentary shortly after congress made this law or enumerated this right, you had the Alien and Sedition Act, which imprisoned dissenters to John Adams’ administration.

Douglas: That’s right. As soon as Jefferson was elected, they were all released. They were repaid their fines. Their convictions were erased.

Nico: But our modern First Amendment jurisprudence didn’t really emerge until the 20th century. So, I wonder – and I know that there’s a lot of scholarly debate about this. What did the framers actually mean when they said, “Congress shall make no law”? You have the Alien and Sedition Act. And it wasn’t until the 20th century that you got the robust protections that we know of today.

So, if you’re looking at from an originalist perspective trying to determine what the First Amendment actually meant, have we gone beyond the originalist’s interpretation? Or was the First Amendment really never effectuated in the way that the framers intended it should be?

Douglas: The First Amendment – well, the speech provision in particular has always been a bit of a conundrum. It says as you quoted it just a moment ago that Congress shall not abridge the right of free speech. Well, that implies that whatever it was then could not be contracted in any way. Well, what was it then? What was it in 1789 or 1787? There’s not a whole lot to go on.

We do know that plays in London were required a license before they could open, and that was true right up until the late 20th century – the last third of the 20th century. But we regarded that as prior restraint. That should not be allowed, and we relied to some degree on thoughts of early precedence.

We say this in the show. Motion pictures did not have First Amendment protection against licensing until the 1950s or around 1960. And even then, of course, there were restrictions imposed locally by each community on obscenity. Well, I guess the term was pornography because obscenity is a legal term.

So, in fact, the actual right of free speech has expanded in practice over the years – been expanded by the Supreme Court. I think it’s in keeping with the sense of the First Amendment that even the framers would’ve had, not with regard to pornography – that’s very doubtful – but in other respects.

Just take a look at this example. Free speech – does that include writing letters? Could you be fined or imprisoned for things you wrote in a letter? Well, clearly, clearly, that was within the contemplation of speech. So, it’s not speaking out loud in some oral presentation. It’s something broader than that.

There’s a tendency to call it free expression, but free expression may be overbroad because that’s been invoked for things like the case in the 7th Circuit. I think it was nude dancing saying, “Well, I have a First Amendment right to engage in nude dancing in my nightclub” or whatever it is because it’s a form of expression. Well, speech and expression are not the same. Speech is a little bit narrower than expression, but it’s certainly a lot broader than what I say out loud or write in a letter.

Nico: Earlier on this podcast, many years ago, I interviewed a professor at NYU, Stephen Solomon, who wrote a book called Revolutionary Dissent. And he kinda weighed into this argument and argued that if you just look at the sort of expression that colonialists were engaging in immediately before the Constitution was drafted and especially during the Revolutionary War and before the Revolutionary War, you kind of see echoes of this sort of expression that we deem protected today – the gathering around liberty poles, the pamphleteering, the robust discussion in newspapers, the criticizing elected officials.

For me, in fifth grade, my first introduction to the First Amendment was we put on a play on the trial of John Peter Zenger. So, he argues that if you just look – ignore what the legal arguments would’ve been, just look at what colonialists were doing, and you can kind of infer from that what sort of expression they might have expected would be protected. And he argued that that sort of expression was fairly robust.

Douglas: Well, and the fact is that today the Supreme Court gives the absolute highest protection to political speech.

Nico: Correct.

Douglas: That’s why various election campaign finance laws have been held unconstitutional. There’s no doubt that political speech is at the heart of the First Amendment. It was at the heart of what the framers were thinking about and what they cared about because free political speech is essential to having a free government or a government of free people I should say.

Nico: We kind of touched on this earlier, but I wanna put the question to you more directly. What changes do you think our Constitution would have if the framers saw how it was exercised today and could change it?

Douglas: I think what they would do is say, “How could we have been more clear?” How can we rephrase what we did so as to preclude some of the major departures that we’ve seen occur in the 20th century really where the Congress has done things that are not authorized, and the Supreme Court has acquiesced to them.

The most important is probably the way in which the separation of powers has been undermined. James Madison said that to combine these powers – legislative, executive, and judicial – in one hand is the very definition of tyranny. Well, now Congress has created these administrative agencies. They’re part of the Executive Branch. It’s delegated to them the law-making authority. So, they make regulations that have the force of law. There are about 18 of those for every one passed by the Congress. They enforce those regulations, an executive function; and then they judge whether you violated their regulations, a judicial function.

So, viewed at that level, it is a tyranny. Now if you are fortunate enough to you can have time and money that you can appeal their decision to a real court with the federal judges who have life tenure, well, then, you can correct their excessive. But how many people have the resources to do that? As a practical matter, those agencies are exercising all three functions and getting away with it every day.

Nico: Who do you think is the most underrated delegate to the constitutional convention?

Douglas: George Mason.

Nico: Why so?

Douglas: Well, because he really made having a Bill of Rights a matter of principle. He was instrumental in having one for Virginia, which became a model for the United States. And he’s rarely mentioned. Unless people study this area, they don’t hear about him. They don’t hear of him as one of the framers.

Another would be Gouverneur Morris, and this comes up in the show, as you know.

Nico: Yea, you talk about both of them.

Douglas: But with respect to Morris, after everything was agreed of what would be in the Constitution, it was submitted to the committee on style for the final expression of those ideas. As Joseph Ellis, the historian, says in the show, “When you read the Constitution, you’re reading Morris. It was he who took the original that was submitted to him and said, “We the people of –” – and then listed the 13 states and changed it to, “We the people of the United States.” That contribution alone is enormous.

Nico: Yea. And I’m realizing we’re running out of time here. I could go on for hours with you. But last question here – aside from your documentary, of course, what are the best resources for learning about the history behind the drafting of the Constitution? Are they The Federalist and Anti-Federalists Papers? What should people read?

Douglas: Well, the Federalist Papers for sure. The Anti-federalists Papers collected in another volume would be a very useful and important supplement. There’s a wonderful book called From Parchment to Power by Richard – oh, I’m sorry. I can’t remember his last name. It starts with a W.

Nico: I’ll find it and put it in our show notes for our listeners.

Douglas: Okay. And that’s about the drafting process, particularly with regard to the Bill of Rights. So, I think those would be a great start for anybody.

Nico: Well, Judge Douglas Ginsburg, thank you so much for coming on the show. And I hope our listeners will go and check out “A More or Less Perfect Union,” which is available on PBS and also now on Amazon Prime.

Douglas: It is. And, Nico, if I may, it’s also available streaming free from

Nico: Yea, I saw that. All you have to do is put in your email address, and you get it that way for free.

Douglas: Yea.

Nico: So, thanks, Judge. If we had more time, I would ask you about clerking for Thurgood Marshall. I’d ask you about political factions and political parties. But we’ll have to save that for another time.

Douglas: Let’s do it another time. Thank you, Nico.

Nico: All right. Thank you.

Douglas: Bye.

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