bjbj"9"9 jeffrey brown: and now to a rareand very inside look at the philosophy and practice of a hugely influential and sometimesprovocative supreme court justice. margaret warner talks with antonin scalia. margaretwarner: well, for 26 years on the supreme court, justice antonin scalia has long groundedhis opinions in the words of the constitution and the law. now he and lexicographer bryangarner have issued a 567-page book laying
out for other judges how and why they shoulddo the same. it outlines nearly 60 must-do canons of interpretation and dismisses another13 notions as wrong-headed. the new book is "reading law: the interpretation of legaltexts. and justice scalia joins me now. and thank you for being here. justice antoninscalia: thank you. good to be here. margaret
warner: now, you're a busy man, judging 75,80 major cases a year. what drove you to write this, some have called it a tome? antoninscalia: oh, no. it's not a tome. well, i have been very much devoted to textualism and tothat branch of textualism that's called originalism. that is, you not only use the text, but yougive the text the meaning it had when it was adopted by the congress, or by the people,if it's a constitutional provision. although i have written a lot of opinions on the subjectand spoken on the subject, and even written on the subject, i have never done hit in thedepth that this book does. the book is in two parts. one is -- expresses, you know,my philosophy of judging and bryan's philosophy of judging. and the second part is a how-to-do-itpart. assuming you are a textualist, how do
you go about doing it? the process is notnovel. i didn't make it up. it shows that it is historically what american judges did,what english judges did. and it's the other modes of interpretation that are novel andhave to justify themselves. margaret warner: what made you think there's a need? what'swrong with the -- you see, i guess, hundreds of appellate decisions that come before you.what's wrong with the judging you see today that they would need this book? antonin scalia:even those who would be textualists don't know how to do it very well because it hasnot been taught in law schools. of course, you know, none of them is absolute. this particularcanon looks in this direction. another canon may look in the other direction. and the trickfor a judge is to see where the balance lies.
it's like a murder mystery. there are cluespointing one way, pointing another way. which clues are the most persuasive, that's whatthe canons are all about. margaret warner: when you call yourself a textualist, that'snot the same thing as the popular notion or the popular term that i think many laypeopleknow, which is strict constructionist. can you explain that? antonin scalia: oh, yes.i have never been a strict constructionist and advise no one to be a strict constructionist.strict constructionism gives a bad name to textualism. for example, if you were to interpretthe first amendment strictly, you would come to the conclusion that congress can censorhandwritten letters, because it says congress shall make no law abridging the freedom ofspeech or of the press. a handwritten letter
is not press, it's not speech, so congresscan -- of course, not. that -- that's not what it means. speech and press is meant tocover the ground of expression. margaret warner: let me cite a critique of your -- your fairreading of the text sort of rule from a former colleague of yours, retired justice davidsouter. and he said he thought the fair reading model was -- had a tenuous connection to reality.he said it's one thing to have the constitution say senators must be 30 years old, but thatthere are these broad guarantees in the bill of rights, like freedom of speech, freedomof religion, equal protection of the law, that the application has to evolve over timeand that, otherwise, the constitution cannot fit the modern age. antonin scalia: it doesn'thave to evolve over time. if it was up to
the courts to make it evolve over time, therewouldn't have been a provision for amendment. it contains a provision of amendment preciselybecause the framers understood that they may find some provisions in the future are notgood and additional provisions are needed. look, what the constitution does, those provisionsespecially that guarantee individual rights, it takes certain matters out of the backgroundrule of democracy, which is, the majority rules. now, there are exceptions to that.and most of them are in the bill of rights. the majority won't rule about -- about speech,about religion, about quartering troops in homes and so forth. every one of those thingsis taken out of democratic self-government. and whenever you leave it up to the courtsto read in a new exception, you're leaving
it up to the courts to limit the scope ofself-government. so it is not that i think the constitution cannot be applied to newphenomena, such as television, such as telephones, as far as free speech is concerned. of courseit can. you have to figure out how those principles apply to new phenomena. but as to the phenomenathat existed at the time, that is -- this is what originalists would consist of -- withrespect to those phenomena, it doesn't change. margaret warner: so that's why you would say,with the death penalty, which you have said often, that because it existed at the timeof the eighth amendment against cruel and unusual punishment, the fact they didn't mentionit means... antonin scalia: well, it isn't just that they didn't mention it. they saidcruel and unusual punishments. but nobody
at the time believed that that proscribedthe death penalty, because every state had it, and every state continued to have it forseveral centuries. now, it may be a very bad idea, in which case, pass a law. you don'tneed the constitution to get rid of it, which lets the court... margaret warner: but youjust mean the court will never declare it unconstitutional? antonin scalia: that's right.but the court doesn't have to. antonin scalia: if the people really don't want it, pass alaw, as many states have done. margaret warner: let me take another modern sort of situation.we just had a couple horrendous mass shootings. you have told chris wallace on fox televisionin an interview recently that you didn't -- you thought it was an open question whether, underthe second amendment, you could even ban someone
from carrying their own rocket launcher. really?antonin scalia: oh, yes. and read the opinion in heller. it didn't purport to say everybodycan carry whatever weapons he wants. in fact, it mentioned that there was a misdemeanorin ancient times called affrighting. affrighting consisted of carrying a frightening weapon,a head axe or something like that, to scare people. so, it's clear that certain restrictionson the bearing of arms are traditional and can be enforced. what they are, it will haveto be decided in future cases. margaret warner: let me ask about one recent decision thatyou were actually in the minority on. and that was the obama health care reform actdecision, in which, as we know, justice roberts agreed with you that the commerce clause didn'tapply, but he found it constitutional under
the government's power of tax. now, do youthink he was following the text? was he following these canons? antonin scalia: i obviouslydidn't think so, because i dissented. i wouldn't have dissented if i thought that was a properapplication of textualism. i did not. and the reasons i did not are set forth in mydissent. margaret warner: but, i mean, the power to tax is in the constitution. antoninscalia: oh, the issue is not whether congress has the power to tax. the issue is whether,in this particular law, congress was exercising the power to tax. and in all of our priorcases, we said that, even if you call it a tax, if it's being imposed for the violationof a law, it's a penalty. and this one wasn't even called a tax. it was called a penalty.margaret warner: i have to ask you about these
reports, which i know you have dismissed,about there being some sort of a rift between justice roberts, chief justice roberts, andthe four -- quote, unquote -- "conservative members of the court." and much has been madeof the fact that, in your dissent, you didn't associate yourselves with justice robertson the commerce clause, even though, essentially, your opinion was very similar. was that aslap at the chief justice? were you distancing yourself from... antonin scalia: well, wewere certainly distancing ourselves from the opinion. that doesn't mean we are suddenlyenemies of the chief justice or anything. that is silly. that doesn't happen at thecourt. that's -- that's childish. margaret warner: now, you say you don't always followyour own rules. antonin scalia: no, i'm saying
i fear that i may have broken some of my ownrules. (laughter) antonin scalia: i certainly didn't fail to follow them intentionally.margaret warner: and would you... antonin scalia: but i just wanted to cover my back,because people go, oh, scalia, you wrote this in the book, but in this case, you didn'tdo that. well, i... margaret warner: justice antonin scalia, thank you so much. antoninscalia: thank you. i'm glad to have been here. hjnn urn:schemas-microsoft-com:office:smarttagscity urn:schemas-microsoft-com:office:smarttags place jeffrey brown: and now to a rare andvery inside look at the philosophy and practice
obama health care reform act,of a hugely influential and sometimes provocativesupreme court justice normal microsoft office word jeffrey brown: and now to a rare andvery inside look at the philosophy and practice
of a hugely influential and sometimes provocativesupreme court justice title `nyj microsoft office word document msworddoc word.document.8
