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: Adamantly.
SCALIA: Adamantly.
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.
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45 comments:
A man who understands why good vocabulary and grammar are important.
Otherwise, it's "Words, just words".
It doesn't matter if the Constitution had been written by idiots. Most of our laws have been. What matters is what the people who agreed to be governed by those laws thought they were agreeing to, not the brilliance of anyone who thought of them.
No one, when it was adopted, thought that the 14th Amendment guaranteed votes to women. When the time came that most people agreed that women should vote, they made a new amendment saying so. Now the 14th amendment is thought of as guaranteeing all sorts of rights that nobody who consented to it had ever imagined.
If you argue that those who drafted the 14th amendment were gifted geniuses, the full import of their work cannot be appreciated except by posterity, then you open the door to the "living Constitution" that means whatever we want it to mean at the moment.
As written, it had slavery in it and denied citizenship to classes of people. It was not ever a magic wand that dispensed every new generation's ideas of justice.
Piers Morgan is a creep. He lost his job in the UK for lying about British troops behaving badly, but gets a job here, how? He so wants to be loved by Hollywood libs.
Madison, for example, case in point. He thought the First Amendment should forbid established churches. When his version was debated at the Constitutional Convention it was explicitly rejected, and established churches, at the STATE level, continued up into the 1820s--because they were not illegal, as people understood the law then.
If you go back to Madison's "intent" in interpreting the First Amendment, then you privilege what he wanted over all the other people who considered what he wanted and decided they didn't want it. But why Madison and not Pinckney or any of the other Founders who are not household names? Because Madison says what you wanted the law to be. So you look at his intent, and not the intent of all the other people who worked to put the Constitution together.
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?"
Simpler and better answer: Because I have a job which requires me to assume they were right.
Professor:
I think Scalia's interest in and connection with the men of the time has to do with the interpretation of the language that they used. These were thoughtful men. These were (ostensibly) God-fearing men, men with a conscience. These were the leading political philosophers of the time and place.
As all-powerful as they are, words have limitations. To understand history and to understand what the people who wrote the Constitution ACTUALLY meant, it is necessary to understand the context in which they lived and wrote – as much as possible at any rate.
You can't interpret the words that are in the constitution without knowing about the people who wrote those words AND the thoughts that were in their hearts when they wrote the words.
Just one old codger's opinion --
Fine distinctions in language - adamantly as opposed to violently - are of no interest to hacks like Morgan. In fact why not just cut to the chase and call Scalia a hater. 'Cause isn't that what they all are, those who don't fall in line with the agenda: haters?
Why the fuck is that Piers Morgan douchebag on television? Did he suck Soros again?
Anybody else wish that Captain Morgan would take a long walk on a short pier?
"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"
That's why the Lefties hate him so.
He has their number and sees right through their posturings of intellectual superiority.
Morgan was trying to make the interview more exciting and colorful, and it's a little silly how he does it, but I admire his intelligence as an interviewer.
He was very astute to pick up the discussion of legislative history (which is about statutes) and connect it to constitutional interpret ion: "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?"
That was done really well.
He gave Scalia some great stuff to bounce off of, and he didn't let Scalia dominate. Scalia had to think to answer, and there was good back and forth.
So it really is a question of what meaning is is?
It's a book tour. Even Supreme Court Justices do book tours. So grains of salt are a good idea.
"Why do you have such faith in those politicians of that time?"
Because they're the ones who wrote the Constitution we're following, the Constitution that gave the Supreme Court in particular, and the Federal Government in general, its powers.
If you don't like those politicians, or what they wrote, you are free to try to get the American people to adopt a new and different Constitution. But until that happens, we should damn well follow the one we currently have.
Only an idiot would think that times change. Why would we not want to be governed strictly by a document written over two hundred years ago by people who lived in 13small colonies, rode around on horses and wore powdered wigs. While we are at it lets go back to 18th century dentistry and medicine. Obviously the wisdom of our forefathers cannot be improved with new knowledge and keener understanding. Problems obviously have not become more complex. Life is simple and best to be simple minded. And being a reactionary Catholic who believes in the primacy of Church doctrine over secular law has nothing to do with his opposition to the law of the land, roe v wade. I am sure our Founding Fathers would be delighted with the Pope getting a voice in our consitituional debates.
"He went fanboy."
Well, that was the question -- not how do you interpret the constitution but why do you have such a high regard for the writers of the Federalist Papers. Scalia doesn't say that his 'high regard' controls his reading of the constitution -- that's still an exercise in deciding what the text meant based on the common understanding of the words chosen by the Framers and ratified by the people. But just as plainly, you wouldn't look to contemporaneous commentators whom you held in low regard to decide what its text meant when it was adopted and ratified.
Althouse suggests Scalia's response should have been,"It has nothing to do with my being convinced they were right."
The question asked wasn't, "Do you follow the law as written because you respect them as politicians?" Scalia clearly answered the questions as asked.
I can imagine some legislative history which would meet the same criteria as Scalia applies to the Federalist Papers. If there's a colloquy on the Senate floor about the meaning of a term, why is not that better than John Jay opining about the meaning of a term?
I'm tempted to believe that conservatives such as Scalia venerate the Constitution and the Federalist Papers because they are old, because they embody in some way the essence of America. Liberals believe in building America; conservatives believe in preserving America.
Pragmatist, if you steal all the strawmen, there won't be any left for the other idiots. Learn to share.
One of these days "Pragmatist" is going to realize that the Roe decision invalidated a bunch of 20th-century laws because (it claimed) they violated a Constitution made by a bunch of horseback riders-- and wake up screaming.
"Why do you have such faith in those politicians of that time?"
Because that Constitution, with necessary amendments, has worked pretty well for over 200 years - better and longer than any other written constitution so far.
Bill Harshaw:
Liberals believe in CHANGING America - usually to make it more like Europe.
They don't believe in building squat - and they have the EPA to ensure that nothing ever get built in any sort of a timely or efficient manner.
Scalia's delicacy about Morgan's use of 'violently' was either a mild joke or pedantry. He didn't consider rejecting 'young, burning, unflinching faith' because he sees himself as keeper of the flame.
Why do you have such faith in those politicians of that time?
This is a slick little maneuver of Morgan to shift away from talking about the meaning of the constitution to having faith in politicians. Imagine if someone presented this as a defense in court: well your honor, why do you have such faith in the politicians that wrote the law I am accused of breaking? He would be laughed at and rightly so.
The proper response to Morgan and questions like this is: why even have a written constitution at all if, on a whim, you can decide that the meaning of a sentence, clause, or word can change to suit the needs and convenience of the current set of politicians?
Pragmatist-
This argument has been thrown about before and I seem to recall someone wiser than me saying something to the effect that if you were to put Aristotle in a
American high school, he would likely be dead last in science and mathmatics, but be at the top of his class in ethics, philospohy and politcal science. In essence some principles don't change much or at all over time. A government of limited and enumerated powers is something many, but not all, people have aspired to for many centuries. Just because hard sciences have advanced beyond the collective knowledge of 18th Century America doesn't mean that other sciences necessarily follow suit.
Times change.
Human nature, and particularly human nature as it relates to power, does not.
yikes, first time commenting here and I didn't even proofread!
Hey Pragmatist, are you really that stupid?
If you want to have a "Supreme Court" that is able to strike down laws (think "Roe v.v Wade" or "Lawrence v. Texas"), then it needs a source of authority outside the current political context. It needs, in short, a Constitution.
And the Court that handed down those rules was created by the Constitution you so imbecilicly deride.
Another name for a "court" unbound by law or Constitution is "dictatorship." Have you given up on Europe, and decided you want the US to be more like Latin America, instead? With the nine members of the Supreme Court taking on the role of Junta members?
Just remember, once you've freed the Court from any need to worry about the law or Constitution, that power remains, even when it's controlled by people you don't like.
Or are you just a typical leftist, too stupid to grasp the idea that "what goes around, comes around"?
Piers Morgan is a good interviewer. Maybe being British he expects more than a kindergarten narrative. He starts there but moves along to the next point of view...like a one man band Fox News panel.
It is refreshing for viewers to be treated like they are adults by the moderator of a show.
The Constitution was very carefully hammered out sentence by sentence, paragraph by paragraph, by people who had much at stake and knew the meaning of words.
The Federalist Papers sought to flesh out the sparse paragraphs of the Constitution and interpret it from the Federalist point of view in the bitterly fought campaign about its adoption, so they do have meaning not only foe what "the Framers" intended, but also for what those who voted to accept their work understood it to mean.
Madison's notes on the convention needs to be treated with some care. Though he was not the only one to take notes, he was the only one to take notes continuously, and so he has become perhaps the primary reference on the proceedings. However, it should be noted that obviously he was far from retired from politics, his notes were not published until after his death (1837, I think), he is known to have edited them himself over the years, and his nephew)?) gave them a final edit before publication.
@ Jake...you are doing well and comment succinctly. Just be patient when the old commenters give you a welcome to the club beating.
Why were you so violently opposed to [Roe v. Wade]?
"Infanticide upsets me. It upsets a lot of people. Finding a right to abortion without regard to the baby's life, without even thinking about it. Have you read the Carhart opinion, Piers? You really should educate yourself. Defining a human baby as property. The opinion did a lot of horrible things. Have you read Roe v. Wade? We have a 95% kill rate on babies with Down's syndrome. We're removing the handicapped from American society. And there's no textual support for this sort of viciousness. Our Constitution was hijacked by people in 1973. What you call "violent opposition" is really opposition to violence, killing a helpless baby just because you don't want her."
That's what violent oppositon sounds like, Piers, you pansy.
What Scalia serves up, on the other hand, is pure applesauce.
Basically because the theory that was expounded to impose that decision was a theory that does not make any sense, and that is namely the theory of substantive due process. There's a due process clause in the Constitution, which says that no person shall be deprived of life, liberty or property without due process. That is obviously a guarantee not of -- not of life, not of liberty, not of property. You can be deprived of all of them. But not without due process.
My court, in recent years, has invented what is called substantive due process by simply saying some liberties are so important that no process would suffice to take them away.
And that was the theory used in "Roe v. Wade." And it -- it's a theory that is simply a lie. There -- there's -- the world is divided into substance and procedure
Now that is an example of a pathetic dissent that could be used for a 1001 judicial opinions. Just mail it in, Scalia. Compare abortion to bigamy again, that's a winner.
Could we get an actual pro-lifer with a working brain on the Supreme Court, please? Thank you.
And Roe v. Wade is based on an interpretation of "penumbras" seen to emanate from the Constitution by one set of Supreme Court justices, that can be reversed by any later set of justices. It is in no way written into the Constitution.
Scalia is the last motherfucker in the world I would ever want to argue over anything.
Althouse wrote: "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."
This is wrong. Scalia is saying that the Federalist papers provide hints as to the original public meaning of the words in the constitution. The way you phrased it is still intentionalist.
Morgan was trying to make the interview more exciting and colorful
I prefer Brian Lamb's understated, Dragnet style of interviewing, even if he didn't know what buggery meant. If the subject can't be interesting, coherent, and sensible, that soon comes out.
Morgan was just trying to rattle Scalia and make him look extreme.
Hugo Black can say he's opposed to "substantive" due process, because Hugo Black objected to the unenumerated right to birth control.
But nobody on the Supreme Court today objects to the right to birth control. Do they?
Since Griswold, the Court has found an unenumerated right to live with your grandmother, and an unenumerated right for a man and a woman to get married. That last unenumerated right was unanimous, including Justice Scalia!
So he's full of shit when he says his objection to Roe v. Wade is that it's unenumerated. He's so full of shit he's turning brown. The feces is squishing out of his ears. It's a blatant, stupid lie. And anybody who has read Scalia knows it!
In fact, Scalia has grounded unenumerated rights law by arguing that it must be based in American tradition. Which makes textual sense as the Ninth Amendment speaks of unenumerated rights that are "retained" by the people.
One might go further and say that unenumerated rights must be uncontoversial and widely popular. The Ninth Amendment says unenumerated rights are retained "by the people". Thus they have to be majoritarian. It's clear by that language that the unelected branch cannot dictate some unpopular, anti-majoritarian "right."
So that's the actual criticism of Roe. Not that it's an unenumerated right, but that it's unpopular, hence not a right at all.
It's quite stupid to suggest that Roe is just like birth control, or getting married, or educating your children. Liberals make that argument. "If you strike down Roe, you'll have to strike down Griswold, too."
Why? I can easily distinguish between birth control and abortion. I can easily distinguish between marriage and abortion, between living with your grandmother and abortion.
Birth control, getting married, educating your kids, living with your grandmother, those are all widely popular activities. We like those rights. There is no popular objection to those rights.
Abortion, on the other hand, was described by Justice Scalia as "a method of killing a human child." That's the basis of his dissent. That's what you say, when you're being honest.
Is he being honest? No, he's a lying fuckwit who's more concerned about his reputation for scholarly detachment than he is about infanticide.
Lawyers who read Scalia know he's lying out of his ass. But here the media is giving him a nice fat pitch over the plate. Millions and millions of Americans are listening. It's the biggest audience Scalia will ever have.
"Why are you so violently opposed to Roe v. Wade"?
And the fucker votes "present". It's an act of moral cowardice and intellectual dishonesty.
I like Mr. Scalia.
I like Mr. Scalia.
He's no Hugo Black.
"Frederick Douglass, thanks for coming in to the studio today. Let's get right to it. Why are you so violent opposed to the Dred Scott opinion?"
Basically because the theory that was expounded to impose that decision was a theory that does not make any sense, and that is namely the theory of substantive due process. There's a due process clause in the Constitution, which says that no person shall be deprived of life, liberty or property without due process. That is obviously a guarantee not of -- not of life, not of liberty, not of property. You can be deprived of all of them. But not without due process.
"Yes, yes, very outrageous. Thanks for coming in."
"Why are you asking me about abortion, anyway? I'm trying to sell my book, damn it. I'm not violently opposed to abortion. It's nothing. It's nothing. Minor jurisprudential squabble. Process isn't substance. It's process! That's all I'm saying. Buy my book. $39.99."
"This is wrong. Scalia is saying that the Federalist papers provide hints as to the original public meaning of the words in the constitution. The way you phrased it is still intentionalist."
How so? I can't see that in my writing. Explain specifically why you think I've said something other than your purported correction.
Professor Althouse,
Thanks for the response. Allow me to elaborate. I'm pretty sure we are on the same page, but what you wrote is open to the interpretation that you're talking about the private meanings the drafters attributed to the text, as opposed to its original public meaning.
"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?
It's not about "what [] they [thought] it meant," it's about the public meaning that the words conveyed. I realize that in the beginning of the blockquote, you disclaim that you're not talking about the intent of the drafters, but the sentence is ambiguous in that it could be you're saying that legislative history is impermissible, but original intent is fine.
By the way, Scalia seems to have shifted from looking to original intent (in A Matter of Interpretation) to original meaning (for example, in the interview). Good for him - we're not bound by the secret intentions of drafters, much less the undecipherable 'intent' of a multimembered body with multipeaked preferences: we are bound by laws.
Do we really trust the unelected branch to decide what unenumerated rights are popular? How are they going to determine that? Sure, when two hundred thousand pissed off citizens show up at your doorstep, you might deduce that what you did was unpopular. But that's Monday morning quarterbacking, isn't it? Too late now! Our reputation's at stake.
The other branches think they know what is popular too. But they find out the hard way if they're wrong! There's no penalty when the Supreme Court fucks up. We get that from their baby-killing work. It's not like anybody's going to get fired over Carhart or anything. Fired? Fired? What are you, some kind of radical?
So that's why the rest of us might complain when the Supreme Court grants itself authority to impose their notion of "liberty" on the rest of us.
What if they suck at it?
For instance, let's take a look at the unenumerated rights jurisprudence of Potter Stewart, shall we?
No right to birth control. No way. That's crazy talk. Constitution doesn't say anything about it. Arrest those condom-users. Arrest them I say! Connecticut knows what it's doing. I'm going to put a "Yay, Connecticut" bumper sticker on my car.
Wait a second. Abortion? Oh yes, that's popular. That's way popular. Everybody loves abortion. Of course there's a right to abortion! Use the knife. Use the poison. Condom? No! I told you. Lock those bastards up! Birth control is wrong. But abortion is so, so right.
Living with your grandmother? Evil! We all know what evil is, and that is evil. Lock those little black kids up, I tell you. What? You say they're white? Lock them up too! Or make them homeless. Whatever. American society has always been against living with your grandmother, and it always will be.
There you go. Potter Stewart. "I know it when I see it." 0 for frickin' 3. He's Mr. Goose Egg. He's the free-floating fetal head of unenumerated rights jurisprudence. No telling what Potter Stewart is going to say next. At least when you hire a William Brennan, you know what kind of dictator you're going to get. That's a true blue liberal dictator, right there.
Potter Stewart, on the other hand? Loose cannon! He's off the grid. I don't want to say he's a grumpy old man who didn't get his prunes this morning. But that explains his jurisprudence as much as anything.
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