JEFFREY BROWN: And now to a rare and very inside look at the philosophy and practice of a hugely influential and sometimes provocative Supreme Court justice.
Margaret Warner talks with Antonin Scalia.
MARGARET WARNER: Well, for 26 years on the Supreme Court, Justice Antonin Scalia has long grounded his opinions in the words of the Constitution and the law.
Now he and lexicographer Bryan Garner have issued a 567-page book laying out for other judges how and why they should do the same. It outlines nearly 60 must-do canons of interpretation and dismisses another 13 notions as wrong-headed.
The new book is “Reading Law: The Interpretation of Legal Texts.”
And Justice Scalia joins me now.
And thank you for being here.
JUSTICE ANTONIN SCALIA: 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?
ANTONIN SCALIA: Oh, no. It’s not a tome.
Well, I have been very much devoted to textualism and to that branch of textualism that’s called originalism. That is, you not only use the text, but you give 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 subject and spoken on the subject, and even written on the subject, I have never done hit in the depth 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-it part. Assuming you are a textualist, how do you go about doing it?
The process is not novel. 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 and have to justify themselves.
MARGARET WARNER: What made you think there’s a need? What’s wrong 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 has not been taught in law schools.
Of course, you know, none of them is absolute. This particular canon looks in this direction. Another canon may look in the other direction. And the trick for a judge is to see where the balance lies. It’s like a murder mystery. There are clues pointing one way, pointing another way. Which clues are the most persuasive, that’s what the canons are all about.
MARGARET WARNER: When you call yourself a textualist, that’s not the same thing as the popular notion or the popular term that I think many laypeople know, 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 interpret the First Amendment strictly, you would come to the conclusion that Congress can censor handwritten letters, because it says Congress shall make no law abridging the freedom of speech or of the press.
A handwritten letter is not press, it’s not speech, so Congress can — of course, not. That — that’s not what it means. Speech and press is meant to cover the ground of expression.
MARGARET WARNER: Let me cite a critique of your — your fair reading of the text sort of rule from a former colleague of yours, retired Justice David Souter.
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 that there are these broad guarantees in the Bill of Rights, like freedom of speech, freedom of religion, equal protection of the law, that the application has to evolve over time and that, otherwise, the Constitution cannot fit the modern age.
ANTONIN SCALIA: It doesn’t have to evolve over time.
If it was up to the courts to make it evolve over time, there wouldn’t have been a provision for amendment. It contains a provision of amendment precisely because the framers understood that they may find some provisions in the future are not good and additional provisions are needed.
Look, what the Constitution does, those provisions especially that guarantee individual rights, it takes certain matters out of the background rule 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 things is taken out of democratic self-government. And whenever you leave it up to the courts to read in a new exception, you’re leaving it up to the courts to limit the scope of self-government.
So it is not that I think the Constitution cannot be applied to new phenomena, such as television, such as telephones, as far as free speech is concerned.
Of course it can. You have to figure out how those principles apply to new phenomena. But as to the phenomena that existed at the time, that is — this is what originalists would consist of — with respect 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 time of the Eighth Amendment against cruel and unusual punishment, the fact they didn’t mention it means…
ANTONIN SCALIA: Well, it isn’t just that they didn’t mention it. They said cruel and unusual punishments.
But nobody at the time believed that that proscribed the death penalty, because every state had it, and every state continued to have it for several centuries. Now, it may be a very bad idea, in which case, pass a law. You don’t need the Constitution to get rid of it, which lets the court…
MARGARET WARNER: But you just 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 a law, 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 television in an interview recently that you didn’t — you thought it was an open question whether, under the Second Amendment, you could even ban someone from carrying their own rocket launcher.
ANTONIN SCALIA: Oh, yes. And read the opinion in Heller.
It didn’t purport to say everybody can carry whatever weapons he wants. In fact, it mentioned that there was a misdemeanor in 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 restrictions on the bearing of arms are traditional and can be enforced. What they are, it will have to be decided in future cases.
MARGARET WARNER: Let me ask about one recent decision that you were actually in the minority on.
And that was the Obama health care reform act decision, in which, as we know, Justice Roberts agreed with you that the Commerce Clause didn’t apply, but he found it constitutional under the government’s power of tax.
Now, do you think he was following the text? Was he following these canons?
ANTONIN SCALIA: I obviously didn’t think so, because I dissented. I wouldn’t have dissented if I thought that was a proper application of textualism. I did not.
And the reasons I did not are set forth in my dissent.
MARGARET WARNER: But, I mean, the power to tax is in the Constitution.
ANTONIN SCALIA: 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 prior cases, we said that, even if you call it a tax, if it’s being imposed for the violation of 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, and the four — quote, unquote — “conservative members of the court.”
And much has been made of the fact that, in your dissent, you didn’t associate yourselves with Justice Roberts on the Commerce Clause, even though, essentially, your opinion was very similar.
Was that a slap at the chief justice? Were you distancing yourself from…
ANTONIN SCALIA: Well, we were certainly distancing ourselves from the opinion. That doesn’t mean we are suddenly enemies of the chief justice or anything. That is silly. That doesn’t happen at the court. That’s — that’s childish.
MARGARET WARNER: Now, you say you don’t always follow your own rules.
ANTONIN SCALIA: No, I’m saying I fear that I may have broken some of my own rules.
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’t do that. Well, I…
MARGARET WARNER: Justice Antonin Scalia, thank you so much.
ANTONIN SCALIA: Thank you. I’m glad to have been here.