Uncommon Knowledge with Justice Antonin Scalia

welcome to uncommon knowledge I'm Peter Robinson nominated by President Reagan and confirmed in the Senate by a vote of 98 to 0 Antonin Scalia has since 1986 served as an Associate Justice of the Supreme Court of the United States Justice Scalia's most recent book written with Brian garner reading law the interpretation of legal texts on behalf of the Federalist Society and uncommon knowledge Mr Justice Scalia welcome thank you Peter glad to be here segment one reading law quote we seek a return to the oldest and most common sensical interpretive principle in their full context words mean what they conveyed to reasonable people at the time they were written close quote Mr Justice in this two hundred and thirty sixth year of our Republic why should it be necessary to devote more than four hundred pages to a common sensical principle it's a very good question well the reason as explained in the first part of the book is that we've sort of gone off the rails that nowadays especially with regard to the Constitution the accepted view and the view stated by my court repeatedly is that the words don't necessarily mean what they were understood to mean at the time but can be given new meaning it's up to the court to say what they what they mean today they mean today what they ought to mean today and it's up to the court to to decide that that's new and and but you know it all comes under the the title the living Constitution living Constitution we'll get to that phrase but again in a gated you you make that clear again and again in reading law it's like picking up cosmic background radiation from some distant cataclysmic event a couple quotations since the mid 20th century there's been a breakdown in the transmission of our heritage again over the past 50 years especially we've the judiciary take control of territory that ought to be settled legislatively once again some commentators have claimed since the mid 20th century that all language is ambiguous fifty years ago something terrible happened what was it what went wrong why did it happen then Wow that we don't try to explain why it why it happened then it did happen then the time that that philosophy took over is about the time of the Warren Court there had been you know hints of it earlier I suppose but it was never the accepted philosophy of the judiciary the living Constitution notion the notion that words are all words are ambiguous it's really up to the court to give them meaning is much more attractive to academics than it is to judges and it's really the Academy that that brought all of this into the prominence and into the majority status that it now and now enjoys so the court is a lagging the court lags the Academy yeah I think probably I think probably I think it brought probably there were law professors that that were espousing these views before before the courts adopted them reading law once again the purpose of issed did I pronounce that one correctly reserved expressive purpose of estar right the purpose of is they have to have some word for it right I made it up the purpose of fist derives the meaning of text from purpose and not purpose from the meaning of the text that's related to the living Constitution or that's distinct that's that's distinct look there there there are two things that the book urges lawyers to be and judges to be number one is textualist okay the point you just made is a point urged by someone who is not at all a textualist he doesn't want to be bound by the text at all and he just looks at what what was the purpose of this text and once he figures out you know it any purpose can be identified at an infinite number of levels at top of which is you know do good and avoid evil and depending on what level of generality you pick you can make a very narrow statute into a very broad statute because the broad purpose that it seeks is this and therefore even though the text does not specifically address that particular question the question ought to be answered that way because of this text that's a person who is not a textualist he's a purpose of aesthetics to list though and you say yes we're bound by the text you can give the text the meaning it bore at the time or you can say and indeed many of many of the Living constitutionalists they say we are all textualist now yeah they all start with the text but but they don't end with it they don't end with it they and they don't give it the meaning it had when the people adopted at that that's especially important when you're dealing with the Constitution because the Constitution takes out of the democratic process certain certain particular items and you're you're tampering with democracy when you remove items that the people really never agree to remove you know the death penalty is a good example I've sat with four colleagues who thought it was unconstitutional even though it's it's absolutely clear that the American people never ever voted to make the death penalty and unconstitutional when the eighth amendment was adopted that corner usual punishments Clause the death penalty was the only penalty for a felony it was the definition of a felony every state had the death penalty so nobody could could plausibly claim that the American people said no state shall have the death penalty but I've sat with four colleagues who have taken that position and say the death penalty is unconstitutional because it ought to be because it nowadays we ought to consider it quote unusual that distorts democracy it ought to be up to the American people to take something out of democracy to take it away from you know the Constitution doesn't require you to have the death penalty you think it's a bad idea persuade your fellow citizens and abolish it as many states have done but you know to say that the American people rendered it beyond the pale of democracies is just absurd segment two canons reading law presents 57 canons I'm quoting properly regarded canons are not rules of interpretation in any strict sense but presumptions about what and intelligently produced text conveys would you explain that well again most of it is calm say let's take most of them are so or many of them are so well that they have Latin names one of them is inclusio unius exclusio alterius when you include one thing you and you exclude another imply it that's a fancy name for the negative implication for example when you when you say a free credit of free loans for people with good credit the implication is if you don't have good credit you don't get a free loan right that's conclusioun iou's namely people with good credit exclusio alterius implicitly excludes others those who don't have good credit so in disgust with 57 canons and a number of the reviewers make a point that I have a feeling you'll be able to deal with just fine but they make the point that the canons represent extra textual assumptions that you bring to the text so Richard post or Judge Posner says he quotes you here I close up there reading law the related statute Canon is not this is you to tell you and your co-author the related statute Canon is not to tell the truth based upon a realistic assumption assessment of what the legislature actually meant the Canon is based upon a realistic assessment of what the legislature ought to have meant those are your words and then Judge Posner says in other words now in quoting his review judges should impose right reason on legislators judges should in short clean up after the legislators no I wouldn't say that with with respect look at what we say early on that that some of the canons such as inclusio unius are just a common sense they are just the way people understand language when others of them however have some what should I say social or legal backing that there's a legal reason for them and the one we just talked about that you should interpret statutes to be harmonious is is one of those you don't want to make a hash out of the corpus juris and that's always been the rule you don't interpret statutes to contradict each other if you can avoid it now if you want to call that going beyond the text I don't think so i think that's anybody who an access statute should know that ancient rule and therefore should know that that's the way what they write will be interpreted if they leave it vague it will be interpreted to be be conformable to prior statutes so so um you've got Judge Posner and Stanley fish in the New York Times Stanley fish is a layman of course not a judge and you got little Robinson here it's clear they're trying to trying to find the distinction it's clear that you bring certain that you bring a knowledge of the English language to the text right you state and all the reviewers agree that words have no inherent meeting themselves you bring a knowledge of the English language to the text right you can call that extra-textual which is exactly so that's sure so so Posner says well wait a minute he says you bring a knowledge of English to the text he says you bring 57 canons to the text well that's what judge Justice Scalia wants to bring the text Justice Breyer may want to bring a few other things to the text how do you draw the distinction between what is the assumptions that are in the service of the text and those that open the door wide to judicial interference or or Fiat some of them as I say are just standard manners in which people understand language okay right got it and that's one whole category that the others can't complain about other ones are so traditional they have been around so long then anybody who who's a legislator and writes a statute ought to know that that's the way it will be interpreted by the people and by the courts an example of that is the proposition that when you have a listing at the end of the thing at the end of a passage which says something like dogs cats gerbils parrots parakeets and other animals that generalized term will not be interpreted to mean elephants it will be interpreted to mean other animals of the namely domestic animals pets that's that's an ancient principle it's almost a question of legal grammar it's a cow it's almost legal grammar right I can't say that that every english-speaking person would understand that automatically but every english-speaking lawyer would certainly understand that that's how courts have interpreted a phrase of that sort for hundreds of years got it segment three errors reading law presents not only fifty-seven canons by the way I should stay for the audit for the television audience and and the audience here Stanley fish they review in the New York Times almost in spite of himself called the book compellingly readable I by the way I agree the prose is just terrific almost the most fun in my judgment are the thirteen falsities exposed yeah I was what lets go K so let's take a couple of those one of the thirteen falsities quote the false notion that words should be strictly construed strict constructionism as opposed to fair reading textualism is not a doctrine to be taken seriously close quote whereupon I googled Antonin Scalia plus strict constructionism and you know what a lot of people think you are a straight-up obstruction wisdom it is not a doctrine to became serious explain it explain that you should not interpret language strictly or nor should you interpret it sloppily should interpret it reasonably if if you were strict constructionist give a bad name to serious textualist s-- who say language should be interpreted reasonably the first amendment is the example I always give if if you were a strict constructionist you would have to believe that Congress could censor handwritten letters because all the First Amendment is a conservation abridging the freedom of speech or of the press a handwritten letter is not speech it's not the press so it can be censored right no I mean a proper understanding the First Amendment is speech press it means they there's a figure of speech call old oh I see a sale where the part stands for the whole I guess right I know they might be Synecdoche cynically god that's brilliant like Raya did you have a Jesuit education I did I did not but I grew up in upstate New York with the English teacher just said said think of Schenectady ah I said yeah it is it says all right so synecdoche synecdoche and I I think speech and press are synecdoche standing for the conveyance of ideas expression whether it's done by semaphore by Morse code by burning a flag so long as your own flag you're free to express yourself all right another falsity again quoting reading law the false notion that committee reports and floor speeches are worthwhile aids in statutory construction close quote Mr Justice Scalia it's not a house how much time you have no interest and probing the intent of a legislature well yes and I know you you will rarely find a court that does not say the object of a construction is to discern the intent of the legislature they say that all the time the Charis tatl said that I think it's wrong at least it's wrong in in in in a democracy we are as as the famous line from the Massachusetts Constitution says a government of laws not of men we are governed by the laws that Congress enacts not by the unexpressed intent of whoever wrote them and if they meant up when they said down that's their problem I frankly if the legislative history is utterly clear about that too bad we're governed by the laws so that's point one you shouldn't be worried about their intent hey we should be weren't worried about what was what was promulgated to the people that's what they're governed by but secondly even if you were interested in legislative intent are you going to find that in legislative history for one thing in a multi-member body it's very hard to understand what the intent was beyond the words that they all voted on other than that they could have voted for them for very different reasons just because one or two of them say oh I think the language does this the rest may not have felt the same way so the notion that you can pluck statements from a couple of legislators or even from a committee report which is usually written by some teenagers and and and not even members of the federal society we're lucky not yeah not even not even not even very often not even read by the committee much less read by the whole house much less less read by the other house the the notion that that somehow is reflective of the intent of the whole Congress and of the president who had to sign the thing I mean it truly is them is the last the last surviving fiction in America in American law you'd be a lot of fictions you know this is a fiction it's you have to engage in a willing suspension of disbelief to to accept this one last falsity quote the false notion that the living Constitution is an exception to the rule that legal texts must be given the meaning they bore when adopted close quote the argument of course is that the wiser the framers were wise men they understood that they were constructing a document for the ages so they left a little play in the joints they permitted this thing to breathe to expand to adapt and the body charged with executing these expansions and adaptions is the judiciary ya know they they they knew that there would be need for change and that's why they had an amendment provision as some constitutions did not this Constitution could be amended and if you if you listen to John Marshall in the in the bank in the United States case what enables the application of the constitution to new situations that can't be envisioned by the framers is not the ability of the courts to change the meaning of the Constitution but rather when the courts interpret provisions of the Constitution they ought as John Marshall said to give those provisions and expansive meaning because they have to they have to be used in situations that cannot possibly be envisioned now that's that's the way in which the Constitution is expandable and flexible not not by by being amendable through the courts as the political and legal culture involves such that we amend the Constitution much too seldom ah we you mean the people different to the formal amount immediate Court does it all the time well well I'm some time to ask you know if I would amend any provision of the Constitution and actually the one provision I would have meant is the amendment provision it's it's very very difficult to amend it to infinite ly more difficult than it was when when that provision was written you know it takes a two-thirds vote of each house to propose the amendment and then it has to be approved by three-quarters of the states I figured it out once if you took a bare majority in the smallest states by in in population something less than 2% of the population could prevent a constitutional amendment that's you know that's probably too severe and certainly much worse than it was you know the the disparity in population between California and Rhode Island is so so much greater than what existed at the framing so III would amend that segment for how it should be done and how it should not how it should not Roe versus Wade to quotations reading law in Roe versus Wade the Supreme Court declared unconstitutional state statute that in no way contradicted any specific provision of the Constitution close quote second quotation justice blackmun 1973 opinion itself the right of privacy whether it be founded in the Fourteenth Amendments concept of personal liberty or as the district court determined in the ninth amendments reservation of Rights to the people is broad enough to encompass a woman's decision whether or not to terminate her pregnancy close quote so justice Blackmun writing for the majority takes pains to ground the court's decision well I suppose you because in the fourteenth and the ninth or if you read his his the opinion carefully it's the fourteenth or the ninth you get to choose and he's wrong to say the fourteenth or he said he say the right of privacy whether whether it be founded in the 14th Amendment's concept of personal liberty as we feel it is or as the district court determined in the ninth amendments reservation of Rights to the people well once again this is one aspect that the book addresses when you have terms in the Constitution that are not ambiguous in the sense that they can mean one of two things but rather are general so that they could cover a lot of things you should interpret them not to cover the things that the people who adopted that provision did not thought they did not think they covered and you know call an unusual punishments is one of course those words could cover a lot of things but it's clear from the history of the times that nobody thought that it included the death penalty nobody and it's the same thing with this this right of abortion whether it's founded in the fourteenth or I mean God the Ninth Amendment forget about it nobody ever thought that we just look at history you know all the states had prohibitions on abortion for hundreds of years so when was it that the American people made the decision to forbid a state from adopting such they never did they never did the court the court made it up and in you know we're not talking about the the right or wrong of the substantive result I mean I'm quite you know neutral on that the point is who should decide should it be a question on abortion whether people try to persuade each other that there ought to be there oughtn't to be and put it to a vote that's fine that's you know if you want the right to abortion create it the way most rights are created in it in a democracy you persuade your fellow citizens pass a law you want to polish the death penalty the same thing but what all of that Democratic choice is taken away when the court is enabled to give vague provisions such as due process of law equal protection of the laws meanings that they that they did not have when they were adopted how it should be done in 2008 case of District of Columbia versus Heller in which you wrote the decision upholding the individual right to present to possess firearms a decision that runs to more than 60 pages of very close textual and historical analysis reading law quote the Second Amendment did not say that the people shall have the right to keep and bear arms or even that quote the government shall not prevent the people from keeping and bearing arms but rather that the right of the people to keep and bear arms shall not be infringed this triggered historical inquiry so how does the history inform the reading of what strikes a layman like me is a very tricky text that preparatory Clause comma well that passage you read triggered I said it triggered historical inquiry because the second event refers to it as though it as though it were a pre-existing right it didn't say the people shall have the right or even the government shall not take away always but rather the right of the people to keep in there as though it was a pre-existing right triggered historical injury in Korea that takes you back to the English Bill of Rights which sure enough contained the right to keep and bear arms as for the Prolog occur they're going to know what the Prolog is you know a well-regulated militia being necessary for the defense of a free state comma the right of the people to keep and bear Arms shall not be in French again if you studied history what's the connection between not taking away arms the right of the people came out and the militia was it seems very strange but historical inquiry shows you what the connection is the way the Stuart Kings the Catholic Kings destroyed the militia which was supposed to be all of the male citizens trained to arms the way they destroyed the militia was not to by abolishing it they just took away the arms of all of those who opposed the Catholic Kings and so there is a connection a well Reagan mission being necessary for the defense of a free state of militia consisting of all of the body of the citizenry come the right of the people to keep their homes you'll not be infringed it makes thorough sense if you understand the history and without the history you ask yourself what is this guarantee of of the state's ability to have a militia what is it doing in the Bill of Rights for pete's sake why you know pointment some other portion of the Constitution segment 5 forward and afterward in reading law your views are definite for that matter the prose itself just conveys a sense of solidity but you include a foreword by Judge Frank Easterbrook that tosses a banana peel right into the middle of the argument quote quoting Frank Easterbrook's for word the significance of an expression depends on how the interpretive community alive at the time of the adoption understood those words the older the text the more distant that interpretive community from our own at some point the difference becomes so great that the meaning is no longer recoverable close quote so the Constitution of the United States it's slowly fading away before our very eyes well I can't disagree with I would have written that I don't know why Frank want that but but it's it's implanted him to write the foreword your stuff it's it's undead well yeah Frank's alright he knows what he's doing and and he is as much of a textualist as I am what he said there is entirely true I mean when you can't recover the historical meaning of course you can't do tests you ilysm but that's not the case with respect to the provision of the Constitution that I'm talking about we know what the laws were at the time the 17th the the the Bill of Rights was adopted in 1791 we knew what we know what the what the laws of the various states were and those laws were unchanged which shows that those people did not think the death penalty was was forbidden you make actually you make a contrary point in reading law that when you first were elevated the High Court amicus briefs that included historical background were relatively unusual and now they have become standard so would it almost be right to argue that the history is coming more sharply into focus rather than fading away is that fair that's fair I'm just making that up if it's fair it's fair all right I wouldn't have made the point but it's not fair I mean the history is either there or it's not there if as Frank said you can't retrieve it anymore yes you you you it's an obstacle to giving the text its original meaning I guess you have to fall back on gee I don't know what it meant originally although I'm not sure what you would say is therefore it means what I think it ought to mean but anyway yeah it's a true statement but it's it's not a criticism of proper historical inquiry where the history has not been lost and it hasn't been lost for all right most of this stuff that's judge Easterbrook's forward hears from your own afterward quote reading law some will argue that a widespread adoption of the techniques we advocate in this book would be to turn back the clock but we do not propose that all decisions made and doctrine adopted in the past half century or so of unrestrained to tional improvisation be set aside we must bow to starry decisis close quote Mr Justice Scalia it's not a matter of turning back the clock it's a matter of restoring the original meaning of the Constitution you put four four four hundred pages you show you you have four hundred pages of Mozart and you end with two and half pages of Frank's genius you take it all that say it ain't so say it ain't so okay so counsel appears before us in the case and he's he's arguing he's about to argue that a statute enacted by Congress is unconstitutional but before he gets in our way wait wait counsel now do you think we have the power to ignore a statute enacted by Congress simply because in our view it's unconstitutional he says oh yes your honor you know Marbury vs. Madison I know I know Marple but was it right let's rethink that you can't run a legal system that way reinvent the wheel every time you have a new case you have to accept you know water over the dam it's uh and that's what starry decisis is all about it's a sorry decisis is Latin for water over the dam that's what it is Latin for right so but but then you provide these criteria for deciding whether sorry decisis should rule and the criteria are just as vague as as the criteria that Judge Posner might impose and reading the looking for legislative intent has it been is it settled law have people arranged their lives around it and so forth this is all in the afterword you know number one the the number of items to which this vagueness applies is much less than the item of the number of items to which judge Posner's vagueness applies I mean you know the world the world is his oyster any any statute can be interpreted to do what it ought to do but secondly I don't think those criteria that I set forth there are so vague I I set forth three that I employ number one how how wrong was it is it you know was it blatantly what some of them are maliciously wrong they must have known they were lying okay that's Leslie plus he's on the books for over a half a century before brown comes along what that's just that's just one of my credit all right all right all right number two has it been generally accepted uh you know when I was in law school the incorporation doctrine was still was still controversial whether the 14th amendment had the effect of applying the Bill of Rights to the states it didn't use to apply to the states but it's been accepted for half a century now and it's it's no big deal number three compare that with Roe vs. Wade right which was controversial when adopted and remained so and and and apply the first criterion to Roe versus Wade you know how bad was it even the people that liked the outcome acknowledged that it was a lousy opinion third factor uh and for me the most important really can can I can I can I work with this case as a lawyer and and again the best example is Roe versus Wade I don't know how to do Roe vs. Wade I'm supposed to say does this particular state statute place an undue burden on the woman's constitutional right how do I know where her place is not I'm a lawyer I would normally run to the law books and see you know what's another what do you know for two hundred years no burden was an undue burden you could forbid it this is a policy judgment I mean you have a statute that requires so many doctors so many nurses so many so much expensive equipment and it raises the price of abortion and the issue for my court will be does this place an undue burden why don't you know what am I supposed to do with that as a lawyer you think we're going to talk about Lauren I'm gonna talk about law we're gonna say here somewhere I don't think that's an undue you think it's an underwear I mean five hands it is four it is and I'm not going to do that but you know those are my three criteria I don't think they're very vague at all and when I find that they strike out on all three I I don't I don't adhere it in the prior case final question before we go to questions from the audience reading law quote originalism does not always provide an easy answer or even a clear one originalism is not perfect but it is more certain than any other criterion and it is not too late to restore a strong sense of judicial fidelity to text close quote so here's the question this book for that matter your entire career represents a sustained determined effort at restoration are you optimistic how's the product coming that's an unfair question especially after last term i dissented in in the last last six cases announced last term so I don't know you just I don't know that I'm optimistic I the fight is worth fighting win or lose you know Frodo and the Lord of the Rings and so I'm going to IO soldier look at the problem is that the other approach is enormous ly seductive even for these for the average citizen it's seductive to think that the Constitution means what it oughta mean it's a living Constitution anything I care passionately about it's right there in the Constitution you know people used to say when they don't like something that's going on they say there ought to be a law they used to be a comic strip that you know there ought to be a law about people playing boom boxes in the park and stuff like that people don't say that anymore they say it's unconstitutional if they really feel passionately about it uh and it is even more seductive to judges it's a wonderful thing to to have a constitutional case and you're always happy with the result because it means exactly what you think it ought to mean let me ask that last question in a slightly different way but it's the same question I was talking to a friend here at Stanford Law School who said when Antonin Scalia was nominated to the Supreme Court in 1986 in the legal Academy at prestigious law schools originalism was considered dead and gone and now if you don't have some pretty good original ist's on your faculty your law school is not to be taken seriously and that is overwhelmingly the work of one man now that I put that put that me hope give me hope Peter stay with me stay up stay in my chambers all right we have some questions but we have some questions from the only made some progress I will I will say what word with this is a federal design the subject I didn't exist questions from the audience is there a negative effect on the judiciary do of the modern confirmation process you were confirmed 98 to zip those days are over aren't they I think they are over my explanation for why they're over is that I told you all this stuff really begins with a warrant Court or at least that's when this this living Constitution philosophy sort of takes over and I think it took the American people a while to figure out what was going on maybe 30 years but once they have figured out that the Supreme Court is essentially rewriting the Constitution term by term the old criteria for appointing and confirming judges no no longer apply I mean it's finding get somebody who's a good lawyer that's very nice and somebody with a judicial disposition wonderful you know somebody who you know is an honest man so forth that's all very good but the most important thing is what kind of a new constitution will this person right will he put in the things that I like and take in the take out the things I don't like and that's what's been going on in in recent confirmation process he's at least where where where where the Senate is not overwhelmingly in the control the you know the filibuster proof control of one party you know judge so-and-so do you think there's a right to whatever is abortion whatever you hear hate or love you don't well I think it's there and my constituents think it's there and I'm not going to put you on the Supreme that's what's going on and it ought to go on much as I hate that process I prefer to the alternative which is just letting the supreme court without any political control we write the constitution term by term if they're going to be doing that I would like some popular control even if it's in this this Byzantine fashion that that amounts to a mini Constitutional Convention every time we appoint a new justice so the corruption of the process stems from the high bench not from the Senate Judiciary Committee yes they're there they are doing what what you would expect them to do and what I say they ought to do if that's if that's what the Supreme Court is doing that's what the Senate ought to do much as I dislike the whole thing how much of the living Constitution is due to the feckless unwillingness of Congress to tackle difficult issues no I I don't think that's a good excuse Oh Congress hasn't hasn't done it so we must do it where where where do you get that from none of it zero don't blame it on the Congress it's it's not the job of judges to do those things which the people's representatives have for whatever reason decided not to do even when we have as we even when their fakeless in when we had as we had a couple of years ago a sitting Speaker of the House referring to a 2000 and some page document we'll have to we'll have to pass this to find out what's in it yeah I don't think it's up to the court - all right you're not a safety net Oh God certainly not does natural law have a place in interpreting the Constitution no look at it says what it says I apply United States law I don't apply natural law God applies natural law the only now natural law has a place in writing law when you're writing a constitution or when you're writing a statute you should not put in that anything that you know or believe is contrary to natural law but once it's in there it says what it says and if it forces me to do something that's against my conscience of course I have to resign from the bench but the mere fact that it doesn't conform to natural law with it does not cause me to be doing anything evil that's no basis for me saying oh the statute doesn't conform to natural law so I'll apply the natural law now that's the only role natural law has under the Constitution is you mentioned that mentioned the ninth amendment and one of you earlier question I did well justice White's mention yeah justice Blackmun did well you know as he remember says the the enumeration here in of certain rights shall not be deemed to deny or disparage other rights that are retained by the people and academia in recent years having finally yielded to the reality that substantive due process which is has been the basis for Roe versus Wade in a lot of the living Constitution nonsense having finally conceded that doesn't make any sense they're looking for other other ways to get there in one of the ways is the ninth amendment which is a source of unenumerated rights it isn't a source of unenumerated rights I apply the ninth amendment I apply it rigorously I do not deny or disparage other rights maybe there is a right to abortion that that's not my line of territory you're free to argue to the legislature that there is but I know that it's not one of the rights containing the Bill of Rights and therefore not not one of the rights that I enforce what the 9th amendment was was the expression of the framers belief in the natural law G us because we have a few rights here doesn't mean that there aren't any others and if you try to take them away we'll be back on the barricades that's that's what it meant procedure and evidence were once the province of precedent case law common law more recently they've been codified question would it make sense to codify federal rules of statutory interpretation should we take reading law and make it statute I wouldn't like to do it because I am loath to to think that it's up to Congress to tell us how to decide cases I mean suppose they decide to say you shall not use logic or suppose they say you shall seek to achieve the purpose that Congress had in mind no no I'm a judge we're our own branch and our responsibility is precisely to decide how to interpret statutes I'm not in favor of having that written in the statute last question question appropriate to Silicon Valley take it ignore it anyway you know you know I have to I know some of the students here at Stanford Law School who are in this audience and they spend three years cowering before the faculty and I've seen smiles break out a number of times and I know exactly why because you over and over again have given these people the back of your hand it's refreshing to my young friends if the First Amendment's text refers only to speech and press you've explained that it doesn't quite but how can you expand it to cover the internet without causing all kinds of problems the Internet is I told you it doesn't mean just speech and press it means expression the Internet is one form of expression the notion that an originalist cannot cannot handle these new phenomena radio television cameras of course you you you envision the the need to take the principles that you applied to to face-to-face speech and apply that to any any any new phenomena that come along but that doesn't count that that is not the living Constitution that's just applying the principles to two new phenomena where where the shoe pinches is where you're dealing with phenomena that did exist at the time the death penalty abortion homosexual sodomy to treat them differently today from the way they were treated earlier that's a different question and that's basically what the the principle of originalism sets its face against you as to phenomena that existed at the time the American people took out of the democratic process only what they understood to be taking out of it and nothing more Antonin Scalia Associate Justice of the Supreme Court and the haven't talked about Brian like co-author and the co-author with Brian Williams all right man he's the the foremost philologist in the United States editor Black's Law Dictionary and portions of the book are identifiably Brian Garner's for pete's sake there's a whole appendix on the use of dictionaries you don't think you don't think I wrote that and and their system he said he say he says one of the things you have to know I didn't know this he said one of the things you have to know about dictionaries is what is the principle on which they decide what order to put their definitions in and he cites a an opinion of my good friend and colleague Steve Breyer which made a mistake because it used the Oxford English Dictionary it used the first meaning as as the most common meaning and that is not the system the oxford english dictionary uses they put the oldest meaning first and then come up to the new I I would have made the same mistake to tell you the truth but that whole thing is Bryant is very useful it also has you know what what are the definitive dictionaries of of each era because you want to use a dictionary from the time you don't want to use today's meaning for you know for the 1700s and he's good on all that stuff okay let me hold this up the camera holding your time Brian Gorder down at the bottom Brian garner down above and seated next to me associate justice at the Supreme Court and co-author with Brian Gardner of reading law Antonin Scalia thank you very much mr. justice covered thank you

Channel: Hoover Institution

Views: 578,611

Rating: 4.851459 out of 5

Keywords: HooverInstitutionUK, Supreme Court, Constitution, law, Congress, legal decisions

Id: DaoLMW5AF4Y

Length: 48min 47sec (2927 seconds)

Published: Tue Oct 30 2012

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