Supreme Court Justice Anthonin Scalia parried with CNN’s Piers Morgan last night, in a rare and revealing interview that included lengthy discussions about political fundraising, 1st Amendment rights, and Roe v. Wade.
Here are some excerpts from their conversation:
On political fundraising
Piers Morgan: ....The problem, as I see it, is \[political fundraising\] has no limitation to it, so now what you have is SuperPacs funded by billionaires effectively trying to buy elections. That can not be what the founding fathers intended. Thomas Jefferson didn’t sit there constructing something that would abused in that way. and I do think it’s been abused.
Justice Scalia: I think Thomas Jefferson would have said ‘the more speech the better.’
That’s what the 1st Amendment is all about. So long as the people know where the speech is coming from.
Morgan: But it’s not speech it's money.
Scalia: You can’t separate the speech from the money that facilitates the speech.
Morgan: Can’t you?
Scalia: It’s utterly impossible.
Could you tell newspaper publishers you can only spend so much money in the publication of your newspaper? Would they not say this is abridging my speech?
Morgan: But newspaper publishers aren’t buying elections. The election of a president, as you know better than anybody else, you served under many of them, is an incredibly important thing. It shouldn’t be susceptible to the highest bidder. Should it?
Scalia: Newspapers endorse political candidates all the time, What do you mean? They’re almost in the business of doiing that. are you going to limit the amount of money they can spend on that? Surly not.
Morgan: Do you think perhaps they should be?
Scalia: I certainly think not. I think the framers thought the more speech the better.
On Abortion and Roe v. Wade
Morgan: Let’s turn to Roe v Wade. Because you, Justice Scalia, you had a strong opinion at the time. I know you do now.
Why were you so violently opposed to it?
Scalia: I wouldn’t say ‘violently.’ I’m a peaceful man, (laughs) You mean adamantly opposed.
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 no person should shall be deprived of life, liberty or property without due process.
That is obviously a guarantee 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, it’s a theory that is a lie.
The world is divided into substance and procedure.
Morgan: Should abortion be illegal in your eyes?
Scalia: Should it be illegal?
I don’t have public views on what should be illegal and what shouldn’t. I have public views on what the Constitution prohibits and what it doesn’t prohibit.
Morgan: But in the Constitution, when they framed it they didn’t even allow women the right to vote. They gave women no rights.
Scalia: Aw common, no rights?
Morgan: Did they?
Scalia: Of course. They were entitled to the due process of law. You couldn’t send them to prison without the same kind of a trial a man would get.
Morgan: But again it comes back to changing times.
The Founding Fathers would never going have any reason at that time to consider a woman’s right to keep a baby or have an abortion. It wouldn’t have even entered their minds, would it?
Scalia: I don’t know why. Why wouldn’t it? They didn’t have wives and daughters that they cared about?
Morgan: They did but it was not an issue that they would consider framing in the Constitution.
Women began to take charge in the last centeruy of their lives and their rights and so on and began to fight for these. Everyone believe that was the right things to do. Why would you be instinctively against that.
Scalia: My view is regardless of whether you think prohibiting abortion is good or prohibiting abortion is bad, regardless of how you come out on that, my only point is the Constitution doesn’t say anything about it. It leaves it up to democratic choice. Some states prohibited. Some states didn’t.
What Roe v. Wade said was that no state can prohibit it. That is simply is not in the Constitution.
It was one of those many things, Most things in the world left to democratic choice.
On Chief Justice Roberts
Morgan: You and Justice Roberts have had a bit of a parting of the ways. You've gone from being best buddies to warring enemies.
Scalia: Who told you that that?
Morgan: I think I read it in some of the papers. Credible sources.
Scalia: You should not believe what you read about the court in the newspapers, because the information has either been made up or given to the newspapers by somebody who was violating a confidence, which means that person is not reliable.
On the possiblity of ending his tenure on the Supreme Court
Morgan: Will you ever retire?
Scalia: Of course I'll retire. Certainly I'll retire when i think I'm not doing as good job I used to. And that will make me feel very bad.
On the creators of the Constitution
Morgan: You're such a Constitutionalist and always go back to the way they framed the Constitution and so on. They debated all that. That is, in it's way, legislative history, isn’t it
Scalia: What is? What is?
Morgan: The framing of the Constitution. They debated all that. That is, in a way, legislative history.
Scalia: I don't use Madison's notes as authoritiave on the meaning of the Constitution. I don’t use that. I use the Federalist Papers, not because the writers of the Federalist papers were present. One of them wasn’t. John Jay wasn't present. I use them because they were intelligent people at the time and that what they thought the language meant is likely what it meant.
Morgan: Why do you have such faith in those politicians of that time. These days if some current politican created some constitution, people wouldn't have faith, the burning unflinching faith.
Why are you so convinced that these guys over 200 years ago were so right?
Scalia: You'd have to read the Federalist Papers to answer that question. I don't think anybody in the current Congress could even write one of those numbers.
These men were very, very thoughtful.
I truly believe that there are times in history that genius bursts forth in some part of the globe, like 2000 BC in Athens or ... Florence for art and I think one of those was 18th century America for political science. Madison said he told the people assembled at the convention, he said ‘Gentlemen, we we are engaged in the new science of government.’
No one had ever tried to design a government scientifically before. They were brilliant men.
I wish we had a few of them now. I certainly don't favor tinkering with what they put together.
- Sam Wood