MORGAN: You are a man that believes fundamentally that the law in America should be based rigidly on the letter of the Constitution. That's what you believe, isn't it, fundamentally?Don't think you can slip those adverbs in on Scalia!
SCALIA: Yes, give or take a little. Rigidly I would not say. But it should be based on the text of the Constitution, reasonably interpreted....
MORGAN: Why were you so violently opposed to [Roe v. Wade]?
SCALIA: I -- I wouldn't say violently. I'm a peaceful man.
SCALIA: You mean adamantly opposed.He'll provide his own adverbs. He does his judging adamantly and reasonably. Not rigidly and violently!
MORGAN: [W]hat would you say your greatest achievement has been as a Supreme Court justice?Now, this is a tremendously important distinction. He excludes reliance on evidence of the intent of the drafters, the notes about their deliberations (i.e., Madison's notes). He wants to understand the language in the final document, which is done through looking at the words through the eyes of the people at the time who were presented with that document. What did they think it meant? Scalia uses the Federalist Papers as evidence of that understanding, not as evidence of what the drafters thought they were putting into the document.
SCALIA: Wow! I think, despite the fact that not -- not everybody agrees with it, I -- I think the court pays more attention to text than -- than it used to when I first came on the court. And I like to think that I -- I've had something to do with that. I think that the court uses much less legislative history than it used to in the past. In the '80s, two thirds of the opinion would be discussion of, you know, the -- the debates on the floor and the committee reports. And that doesn't happen anymore....
MORGAN: I mean on that point, on the legislative history point, again, critics would say to you, well, hang on a second, because you're such a constitutionalist and always go back to the way they framed the Constitution and so on. They debated all that. I mean that is, in its way, legislative history, isn't it?
SCALIA: What is? What is? What is?
MORGAN: The framing of the Constitution.
SCALIA: The Federalist Papers.
MORGAN: The framing of amendments and so on. What's the difference, really?
SCALIA: No I -- I don't -- I don't use the -- Madison's notes as authoritative on the meaning of the Constitution. I -- I don't use that. I -- I use the Federalist Papers, but not because they were the -- the writers of the Federalist Papers were present. One of them wasn't. John Jay was not present at the framing. I use them because they were intelligent people of the time, and therefore what they thought this language meant was likely what it meant.
MORGAN: Why do you have such faith in those politicians of that time? You know, I mean these days, if some -- if the current crop of politicians created some new constitution, people wouldn't have the faith, that young burning, unflinching faith that you have. Why are you so convinced that these guys, over 200 years ago, were so right?
SCALIA: You have to read the Federalist Papers to answer that question. I don't think anybody in the -- in the -- in the current Congress could -- could write even one of those numbers. The -- these -- these men were very, very thoughtful. I truly believe that there -- there are times in history when a genius bursts forth at -- at some part of the globe, you know, like 2000 BC in -- in -- in Athens or -- or Cinquecento Florence for art. And I think one of those places was 18th century America -- America for political science. You know, Madison said that -- he told the -- the people assembled at the convention, "Gentlemen, we are engaged in the new science of government." Nobody had ever tried to design a government scientifically before. They were brilliant men. And...
MORGAN: Do you wish we had a few of them now?I think he's shifted to a different kind of argument here. At first, the idea was: It's the legally operable text that matters — a statute, a Constitution. And I don't care what these people who wrote it said in the process of putting it together. It's a text, the text matters, and a text is to be understood according to how the people who were to be governed by that text would understand it. That doesn't depend at all on anyone being really smart or talented or inspired. It's quite mundane. Those who have the power to write a text that will be law are held to a duty to put it in words and then the words count.
SCALIA: I wish we had a few of them now. And I'm -- I certainly do not favor tinkering with -- with what they put together.
MORGAN: Justice Scalia, it's been fascinating.
Scalia fended off Morgan's adverb attacks so well, but he lets Morgan feed him some rot about young, burning, unflinching faith. Why didn't Scalia say: Young? Burning? I'm pretty old, and frankly rather cool-headed. Is it harder to catch the adjectives? And the question is "Why are you so convinced that these guys, over 200 years ago, were so right?" Why did he start gushing about what geniuses they were?
He should have said: It has nothing to do with my being convinced they were right. My faith is in the law, and I'm presented with a Constitution to interpret. That means something, and my job is only to say what those words mean. If the people who are around today make a new Constitution or add an amendment to our old Constitution, then if that became the law — I'm assuming all the proper procedure for ratification were followed — then my approach would remain the same, and I would do my duty as a judge and interpret that text as a proper textualist. It's not a function of any love — burning love — for these people who do the writing. It's a function of law and text.
But no. He brought up a metaphysical notion that at certain times and places (on the globe!) genius bursts forth. Burning! Young! Genius! The globe! He went fanboy.
At last, Morgan had got something. Justice Scalia, it's been fascinating.
Justice Scalia's new book is "Reading Law: The Interpretation of Legal Texts." It's so expensive — $40 even as the Kindle edition — but it's #1 in law books at Amazon.