tv After Words Christopher Scalia Scalia Speaks CSPAN December 30, 2017 10:00pm-11:01pm EST
up next on booktv "after words" sub three son of the late supreme court justice antonin scalia shares his father speeches on law, faith and virtue. interviewed by david savage. >> host: christopher scalia your father antonin scalia was one of the most powerful writers in supreme court opinions. he wrote a lot of dissent great for people like me quoting them but this is not a book about court. the book about speeches so why speeches? >> guest: yeah as you said his opinions are memorable and i'm often told by law students and
reporters that they went to his opinions first for that reason. they were so crisply written and evocative and powerful. his speeches have some of the same, really all the same great qualities that his opinions do but i think the advantage of his speeches is that he could let war of his personality shine through for one thing. he was a great performer, little bit of a ham. he played in the death in a high school production of that play and i think he was the president of georgetown theatre club but that theatrical side shining through in his speeches and away the doesn't it in his opinions. >> host: court opinions but have to follow certain conventions that are better turn out to the average person who is not at court follower or a law student so we wanted a collection that would be of interest to the laymen really,
that would be interesting to the average american and not just illegal nerd. >> host: well-adjusted normal people who don't spend all their time reading court opinions. >> guest: they will read or write up in an opinion but probably not the whole thing. one of the advantages of the speeches especially the ones about the law my dad could explain his approach to interpreting the constitution and the law uninterrupted without having to focus on the specific case but bring in multiple cases and the coeditor at wheelan and i were sure to pick one that would be understandable to anyone not just a law student and then of course there's the range of subject matter. obviously there are plenty of speeches about the law in here and there's a section devoted really to his defenses and is the purchase to laud this jurisprudence but a lot of his
speeches have nothing to do it a lot i think readers will be interested in some bit different and surprising subjects. >> host: certainly was my reaction. i knew about his views on the law they heard some of his lost beaches but this book has so many wonderful speeches about high school graduations talking about is faith and catholic audiences and talking about so many subjects. >> guest: there were a couple that really surprised me. he spoke a couple of times at the national wild turkey federation convention, not really place you'd expect to see a supreme court justice that we included a speech from one of those conventions which my father explains how he became interested in hunting and why he loves it as much as he does. i'm not a hunter myself but i still enjoyed that speech because it showed the side of my father that i knew a little bit about but learned more about through that speech. >> host: you mentioned you did
this with ed wheelan a law clerk for justice scalia in the early 90s and a terrific writer himself and someone who greatly admire justice scalia. how did you doing it? was there a file cabinet full of type that speeches or did you do any transcribing of audio recordings of speeches? >> we didn't do any audio transit correction. there's one exception but all of these speeches are ones that he had sharpened and revised. carefully himself. only a couple had ever been published before. think that's one of the great things in his selections but the way we set about this was basically got a couple of binders of his speeches from the secretary angela and he had to
binders with 50 speeches each i thank spanning, going back to the early 80s through the present and in addition to those to binders which were easy to navigate we also have an egg box of his speeches a couple of which were just different versions are redundant versions of what we had in the binders but most of them were fresh ones we having countered. we had to sort through those loose speeches and then there was another box of floppy disks which some of your viewers may not even remember but an archaic form of stored information. i had to sort through those speeches and again a couple of them were ones we are a tad but there were a lot of new speeches thereto. it did involve a lot of sorting and sifting but we were surprised by how many great speeches he had. we both knew he spoke a lot and we knew that he spoke not just about the law, we knew he spoke
at commencement addresses and he spoke at my high school graduation. i was aware of that but the turkey hunting speech i had no idea. the range of the speeches were very surprising and the consistent quality of them were surprising. as editors i think the hardest thing ed and i had to do was decide, there's really no filler in here. there's a lot of good material we couldn't include again going back to the general reader. that was really the cut-off. if we thought something would he a little bit two in the weeds for a general audience we would exclude it. >> host: there are multiple versions of the same speech because i recall hearing justice scalia talking different years and my impression was that he had sort of a stump speech. he knew what he wanted to say. he was a wonderful performer and part of it is the substance that part of it is this point he would emphasize.
is it your sense that he had sort of a speech about originalism in the law that he could go to a lot of places and take that and deliver that material and just talk? >> guest: he delivered, i think i know the stump speech you are referring to. it's a speech he delivered about originalism and why it superior to what's called the living constitution approach of jurisprudence. i heard him deliver that speech in madison wisconsin in 2001 and it's one he delivered very often. i was looking forward to finding a written version of that because i loved that speech. it included a wonderful passage where he compared the living constitution approach to a television commercial from the 1980s where a commercial where somebody is making pasta and heating up store-bought pasta sauce and the husband says to
his wife you are using the store-bought sauce and you are not doing it homemade? what about the oregano and the wife says it's in there. what about the pepper? it's in there. the garlic? it's in their. my dad would say we have got the kind of the constitution now. you want a right to an abortion, it's in there. if you are right to die its in there. anything that's good and true and beautiful is in their no matter what it says. being a pop culture junkie myself and have a watch that commercial with my father i always love that passage. i was looking forward to finding it but he never actually apparently wrote that speech down so we have a version of it, a very different version of it in the collection one he delivered in australia in the early 90s. but that particular version which he delivered very often, instead he worked from a very
quick series of notes that he called the outline and the outline was really just a set of props that he would rip off of. he would look at this outline and think what could this possibly mean? there are only about 50 words on it and some of them are misspelled and he would photocopy the outline and write notes on it on any given occasion like the people he should thank in his speech. unfortunately there's no reference to the prego television commercial on the outline. we were surprised that that's how he did it but he knew what he wanted to say so clearly. it was easy for him to rip off that asic outline. >> host: you said you were a student at the university of wisconsin. one of the things i remember about justice scalia was that he would go out to a lot of universities and there would be,
he would almost surely have a lot of protesters and maybe it's worse now than it was then that 20 years ago i have always admired the fact that he would go to law schools and universities where he knew there was going to be some people who didn't like him and he did it anyway. he was not shy and didn't mind being criticized. i think it's unfortunate with the way politics of non-these days people tend to go places where they will be welcomed. liberals go one place and conservatives go another. you actually remember him going to wisconsin and getting some protest? >> it was in 2001 charlie after the bush v. gore decision. he wasn't terribly popular in madison wisconsin and there were protesters outside. it wasn't a violent demonstration or anything.
really just a handful of demonstrators outside showing pictures of hitler mussolini and my dad. so. subdued stuff, nothing too terrible and like you i will wonder what would be the case now. i'm assuming it would be more intense now. that was outside. inside the lecture hall the audience was respectful. they were. intense questions afterwards. there were certainly plenty of people who disagreed with him and let him know that and there was some combativeness back and forth. it was not polite but my father delivered speeches in what you might call hostile territory because he believed he could persuade people and he believed people in general were pursuadable and were open to reason, even people who disagreed with him and at the
very least he wanted them to hear his ideas unfiltered. i think that's why he delivered speeches as often as he did and his many speeches as he did. really believed he could were swayed people. i think even if he didn't persuade people to agree with him he was at least able to show the caricature that a lot of people had going into the speech or the event. >> host: that was always the reaction that i heard from a speech either talking to people are reading about them. a fair number of students would be quoted saying but did you think? i didn't agree with justice scalia but he made a really good argument. they came away thinking they learned something that caused them to think twice about what they thought and he really could win over people to say this is a really smart guy and he's got a really good point. i didn't really understand the
argument he was making. he also had, like nobody else in the court he loved to argue and ideas. yet written some opinions that were critical of justice o'connor and people said it sounds like you are hard on justice o'connor. he's a justice o'connor and i are friends. we disagree on some things. you come out to the middle of the ring and you gloves and you come out swinging. his view was that you argued about the law and that was the way to do it the kiss that's the way to grapple with what's the right answer. if people disagree you should talk it out. >> guest: he's often quoted as saying i don't attack people i attack good ideas and a lot of
bad people have good ideas. his opinions obviously did ad hominem attack and he didn't do that in his speeches. he expected people to get back to him. he didn't expect going back to the boxing analogy he expected people to take punches at him too. justice ginsburg writes the foreword to this collection in one of the things she mentions is people may know that they were good friends. they also were good colleagues because they help each other writing their opinions by pushing back at each other in the drafts, kind of explaining how they could improve an element of their argument by taking into account to this point are changing this phrase here or there. even though they disagree they were trying to help each other out by pushing back. my father thought again going
back to the concept of persuasion is possible to persuade people and it's possible to help one another arrive at the truth of the matter but not by just saying what you want without any feedback. there had to be some give and take their, some conversation basically. those of their friendship was one of those wonderful things in washington that you don't see any more. they opposites on the ideological side of a lot of big issues that they were always friendly. in the 1980s they were friends until the end. they got together regularly and he always spoke well of justice ginsburg. he might not join one of her opinions that he would never deride her. i think he respected her and she respected him. they were friends and it's unfortunate that you don't see a lot of that anymore, people who have fundamentally different political or ideological ideas
who can work together and be friends. >> guest: ideology has taken hold of everything and the people let that happen they are missing out on encounters with a lot of great people and great friendships. in their case they focused on what they had in common and was an awful lot. my dad was born in trenton but they grew up in new york about the same time and that was an element of their friendship and they both loved opera. they had cameo appearances at operas together and their spouses were great friends. my brother is a great cook justice ginsburg's brother marty was basically a gourmet chef and justice ginsburg and my dad would like to eat apparently so that was another element of their friendship. just by focusing on those things they have in common was how the
friendship derived. somebody asked my father once basically how could you like justice ginsburg so much when he disagree about everything and he said what's there not to like? she's a wonderful person. >> host: except her views on the law. >> guest: exactly. >> host: i spoke to gw a couple of years. they could joke with each other. justice scalia said we took that trip to india together. it was a big problem for youth because we were on an elephant and i was in the front and offer them as friends than mike the fact that she was sitting behind me and justice ginsburg in that voice of hers said i was told it was a matter of redistribution of weight. which he got a real kick out of. tell me it really is full of wonderful speeches and all kinds of different topics.
tell me some of your favorites. >> guest: it's hard to narrow it down to a handful. the legal speeches are probably the ones that we hope will secure his legacy but there is so much more. there was so much more to him in life and that's the great thing about this collection. you see so much of that. a couple of my favorites. one of my favorites is one bad for the sake of this collection which is called the arts. it's one of my favorites because the context is fascinating. i didn't know he delivered this speech so i was fascinated when i discovered it. he delivered it at the juliette school in george city, very well-known school of the arts and was on the occasion of the school's 100th anniversary. there was a symposium about arts in american society and the school president knew that my
father was interested in the opera and knew he was a conservative justice who would offer opinions that wouldn't be heard very often in new york city. so he thought on the one hand my father would write in and on the other hand he might challenge the audience. he reached out to my dad and he tells me my dad was a little skeptical at first but was convinced and decided to participate. i'm really glad he did. he was part of a fascinating panel. other speakers on this panel were david mccullough the pulitzer prize-winning historian i believe and opera singer renee fleming and broadway composer steven foster time. a pretty fantastic group of people and very disparate bunch. i'm not sure my father realizes
this but he co-wrote the music for west side story of my father was a big fan. he even worked officer cross crop ski into a dissent i think. i don't think my father realized that at the time but i wish they had a chance to talk about that during their encounter. apparently my father got along with him very well and before the speech and of the speech itself mr. polizzi tells me it went over great. it was faculty students artists and law students from around the city. my father begins his speech by recognizing how incongruence his presence is there. the beginning is pretty great. he said i'm happy to be here
this afternoon and to tell you the truth someone surprised me here this afternoon. today's program reads like some cited -- some sort of test. which of the following is out of place author composer, lawyer. so i think it's a brilliant speech because he begins with the self deprecating humor and he does that a lot. then he kind of explains why lawyers are in fact important to our. they create the conditions in which the arts can thrive for example contact lawn things like that. so he eventually wins the audience over and he refers to be lovers of the art to get them on his side a little bit early in the rhetoric i think that the second half of the speech he challenges them by saying, by discussing the first amendment. he says we lovers of the arts
want to believe that all matter of the arts are protected by the first amendment by freedom of speech. in fact that's not the case and my father goes on to explain why some of the arts everybody in that room would like would not actually be protected by the freedom of speech and his argument that through an originalist interpretation of the freedom of speech that phrase was something particular to the founders and it didn't include some things. it would include an opera. it might include, sorry it would include the loretto but it would not include the opera music. it might not even include the loretto if the loretto were poorly written. that is technically not protected. he challenges the audience by saying we may want all of these
things to be protected under the first amendment but they aren't necessarily. the appropriate approach to the constitution isn't to understand it as defending and protecting everything you like. protects a lot of things you don't like them leaves a lot of things you like and protected. it's kind of her brilliant speech because of the different ways he approaches the audience and again the context was so fascinating. >> host: it was one of the speeches where people were there in 15 minutes they learned a lot of copyright law in first amendment law. he speaks very concisely and sort of tells you in a way that you can understand a whole lot of the body of law in a short time. in one of those speeches he was invited to give a lot of commencement addresses and he would ask people for device and the consistent by sea ice got was cute to 15 minutes.
i do think a lot of his speeches are concise. and. >> guest: especially high school commencement. he wanted to move through pretty quickly. i heard him speak at a few commencement addresses and we include a couple of them in here. they are always entertaining, easy for his audience to understand as you mention but still not just full of platitudes and again challenging. he challenge pretty much every time he spoke. host of is a classic on that one that i call platitudes of wisdom wisdom. he gave a speech at your brother paul's graduation at langley high school and you said he may have given it more than once but it's really amusing. he said giving a commencement address is not as safe as an enterprise as it used to be and
sometimes the students around and make up jokes. he said a few weeks ago the "washington post" published a card containing some of the most frequently used graduation platitudes ranging from this is not an end, the beginning, to you are the future leaders of america. then he says the idea was that he would take a card to the graduation ceremony and as a speaker you can check off a whole string of whole grow up and across in the entire class would stand up and say bingo. he said your principal is probably angry at me for giving next year's class this idea. he said i've heard speeches where i wanted to jump up and say bingo even without the benefit of a bingo card. as you know that speech are about the things a speaker say like this is an unprecedented crisis in he says no it isn't. i just thought it was a
wonderful high school graduation graduation. >> guest: at the end of that speech by the way he comes back with a bingo card after serious point and he says good luck and i had one last platitude around here somewhere. oh yeah the future is in your hands, bingo. i heard him deliver this speech a couple of times and i got it kicked out of him and being at with bingo. >> there's something classic about justice scalia that so many high school graduation speeches are full of those platitudes. he gives a graduation speech that makes fun of platitudes. they are really not correct. >> guest: you mention the one point, one at this of his points as don't think you are facing unprecedented challenges. it's usually a matter of degree and not time. those have been around for a long time.
he says the reason it's dangerous to think you are facing in unprecedented challenge is that it will do more lies you a little bit and also it will prevent you from looking back and learning from history and trying to glean less from the past three penalties having fun with these platitudes he draws a really important lesson. >> there's another line about never compromise your principles principles. he says you had that her think twice about your principles. if your principles are the same as hitler irwin and you ought to think twice. it's more important to be sure your principles are correct rather than at and a sense of blindly following principles that will lead you the wrong way. >> guest: may i read that passage? he says i'm here to tell you it's much less important how committed you are than what you
are committed to. if i have to choose i will undoubtedly take the side even the lazy person knows what's right and the salad is the cause of error. he may move slower buddies headed in the right direction. movement is not necessarily progress. more important in their obligation to follow your conscious or aspire to it as your application to form your conscience correctly. remember this nobody ever proposed evil as such neither hitler nor lenin or any other deaths that you could name came forward the proposal that read let's create a really impressive an evil society. so again poking fun at the platitude in a humorous way but driving home a very serious point. clearly. >> i couldn't agree more. it's a way of actually delivering a high school commencement something that is
significant and memorable but he does it in the guise of making fun of for knocking down platitudes. >> guest: this speech includes another. he considers the platitude, the united states is the greatest country in the world and he says i don't mean to contradict this platitude but i think we need to consider for a moment why we believe it because i believe this but i want to make sure we believe it for the right reason. even his opinions and so he goes on to explain why we shouldn't think the united states is the greatest country. we are the greatest because of the good qualities of our people and because of the governmental system that gives room for those qualities to develop. he goes on to elaborate on that, not just the bill of rights but the framework of the constitution.
>> there's a speech after that where he spoke law school classes and somebody is quoted as saying that they remember the speech. i thought it not one he talked about what a lawyer does and what lawyer work is and i thought it was a relatively concise speech. he talked about compulsive decision with words and i covered the courts for a long time. it was a surprise to me when i started. he said they will spend a full hour and a major case comes up and frequently turns on what is the meaning of a particular word? he makes the point, that's what lawyers do. we spent a long time trying to be precise about words. >> guest: i think this is the speech where he compares lawyers to poets.
he said they love vague language language. the job of a lawyer is to remove language of all ambiguity and be as clear as possible. he says if you have any interest in being a poet get out now. those two careers are at odds. he makes fun of politics upload times which is always funny to me because i like poetry. he has a great line. there's another platitude called legal canard like the graduation speech we were talking about where he analyzes some common legal saying that he can't stand and one of them is emerson's line of foolish consistency is the hobgoblin of a little mind and not a legal expression but one that he often encountered in briefs i guess andy said of emerson i think it generally is a sound policy.
i leave poets alone if they leave you alone. he's not leaving us alone here so i have to analyze but again it goes back to a different type of writing and digging for a lawyer as in other professions including a poet. >> host: tell me about your experience as the son of the judge. you were in elementary school when he went on the court in 1986. >> guest: i was 10 years old. the. >> host: how did that change things in your life and around the house? >> guest: it helps to remember that growing up the most remarkable thing about my family on a day-to-day basis with the there were so many. i had eight siblings and we weren't ever all nine of us living in the house at the same time but they were usually a lot of us in the house. that was the most marketable
thing. we were already kind of a weird family. what changed and 86 was obviously he was in the papers more. he was a federal judge already and i knew that was kind of a big deal. there wasn't a lot of media attention for that. the day he was nominated i remember watching seeing my dad on tv and the next day hanging out with neighbors at the pool and noticing or sensing that people were talking about me. maybe that was just paranoia but i think it's probably accurate. it became more public but i didn't really get a sense, i didn't get a sense of the jobs will significance until going through middle school and high school and i understood what my dad was up to and what his job
was and really why he and the other justices were getting attention. even with all of that and the eminence of his position my dad made a point of being home every night for dinner. he said grace at meals every night. i take that for granted and sometimes they didn't like it because it meant we had to wait longer for dinner but now i don't have nearly as many kids as he did and i appreciate the efforts he took to make the fan moe -- the family of normal family and especially growing up in the d.c. area. it's hard for a lot of parents to be home with their kids in the spend time with their kids. i'm really grateful my father did that. >> host: in some ways he was different from my friends
families but in other ways it was pretty similar. >> host: that is impressive because it's one of the things that a job like that in washington you can encounter a lot of travel. >> guest: obviously he went on trips. i mentioned in the introduction every summer he and my mom would go away to europe or something like that for a speaking excursion and my older siblings, never me, would take advantage of that by having friends over. after dinner he would get back to work. i still knew he was busy. >> host: i was going going to a. did he do a lot of work at home on the evenings and weekends? >> guest: in evenings he would go back in his study. he had a study in the house. i loved that study.
bookshelves, fireplace a decorative fireplace that the aura of the room always impressed me. he would read rates in their and he would type away on his opinions. >> host: he did a lot of writing at home? >> guest: i would often walk by when the door was open and he'd be leaning at over the keyboard revising or he had a reading chair where he would read through the briefs. >> host: did the kids know not to go in at a certain time and not interrupt dad? esque i think is kind of a given. his study was right by the foyer so we would hang around there sometimes and maybe be a little too loud and would have to remind us. we would be upstairs doing our homework anyway or downstairs watching tv. those good did you ever go to the court and watch arguments
are seeing him in action at different places? >> guest: unfortunately i only saw one oral argument. i really regret that. my wife has a law degree and up until shortly before my dad died when we were married wheaton never lived up here but i really wish my wife would have gotten to see oral arguments. i only saw one and i enjoyed it but i should have taken better advantage of that opportunity. i took that for granted but i went to court occasionally and visited his chambers or went to events there. i loved going there. such an impressive building. >> host: i had actually started covering the court this summer he arrived in 86.
i didn't have a full appreciation but everybody said he changed the court. there were no dull oral arguments with justice scalia was there. even if there was a dull argument he would ask a question that said so council he won is to say the word blue really means black that sort of put the lawyers on notice that he wasn't buying what they were saying. he had a wonderful comical sense and a very smart guy. a lawyer would make an argument that didn't make a lot of sense he would squint and give them one of those singers. there are a lot of reasons why the court said they don't want to oral arguments on the television but it's one of my regrets that students and the general public couldn't watch some of the arguments.
they are ingesting to begin with but he always enlightened argument and pushed both sides and made it a more interesting. when i started there were a lot of really old justices who mostly wasn't there for the hour and listen but justice scalia thought this was an opportunity to go in there and ask the questions that was on his mind and someone ought to answer it. he really enlightened it and they continued on after that. there will not be anybody like justice scalia but the arguments are much more lively thanks to him. >> guest: that's my understanding. i think his background is a law professor. he was a law professor for some time and he brought that professorial demeanor and approach to oral arguments and did change oral arguments so much they point out now if you don't speak every time people think something is wrong with
your approach but then it was much more subdued. >> host: it reminds me one of the jokes during that period was when he arrived in 1986 i think lewis powell the virginian was there one year. people at said justice powell thought that justice scalia asked him to many questions. i said were you bothered that justice scalia asked too many questions and he said well he was a law professor. i think he could speak for the full hour. it was a way of saying yes maybe but everybody basically caught up after a while and it changed the arguments all for the good. it's a much more lively exchange because the justices are fully
engaged. tell me there are an awful lot of speeches about his catholic faith for example that is a big theme of the book. tell me something about one of those speeches and your thoughts on that. >> i will talk about a couple. he really put great emphasis on his speeches about religion probably second only to the speeches about law and he really refined and polished these. one in particular he delivered very often was the christian credence or as he called it the two thomases. in that speech he focuses on the differences between thomas jefferson the great founder obviously and st. thomas moore who was one of my father's heroes.
after my parents got married they traveled around europe a little bit and they saw the robber goal play man for all seasons about thomas more matt prater really impressed both of them and really left a deep imprint on my father throughout his life. what impressed him about thomas more was his respect for the law but also his devotion to his faith, that it was possible to have both of those things. and he contrasts that with thomas jefferson who had a version of the bible, the jefferson bible. he edited the bible to remove references to anything miraculous or unbelievable. the chairperson new testament
includes the death of christ. there is no as just one example and no miracles obviously. my father uses those two important figures of contrast and he delivers the speech off into groups of catholic lawyers and telling them st. thomas moore is a great model for you and i will just read the end of this speech. it is the hope of most speakers to impart wisdom and that's in my hope to impart those already regarded as stupidity. rb thought to be fool's? no doubt this date -- st. paul wrote in the corinthian swear pools and christ would describe us of all things and we would not get to have unless we would become of little children. it was a reminder to a
specifically christian bands that they would be seen as peculiar to non-christians particularly in secular environments obviously. that speech was crucial to him and he delivered that one often. there's another speech he delivered called faith and judging which is i think really important because it clarifies the relationship between his faith and the law and it will dispel a lot of preconceptions people have of the fear that he was some sort of theocrat. in the speech he makes it very clear although he takes his religion seriously his job as a justice is not to impose his religious beliefs or policy
preferences on the law. he gives the example of abortion abortion. let me read a little bit here. first he says just as there is no catholic way to cook a hamburger and so while so is that no catholic way to interpret text analyzed legitimacy of prior judicial decisions except of course to do those things honestly imperfectly and he goes on to explain how he applies these attitude towards abortion laws. i find myself somewhat embarrassed their war when catholics are other opponents of abortion come forward to thank me for my position concerning roe v. wade. i must tell them that i deserve no thanks at that position is not a virtuous affirmation of my religious belief or policy choice but simply the product of lawyerly analysis of constitutional tradition and
legal analysis had produced the opposite conclusion i would have had to come out the other way regardless if they were my use concerning abortion. my religion gives me a personal view on the right or wrong of abortion but it cannot make the text say yes or in fact say no or tradition say we permit where does said we forbid. my position on row v. wade were reflection of the police and policy preferences i would say the constitution not only permits the banning of abortion but requires it. judges have derived results much more impossible than that this is no person shall be deprived of life liberty or property without due process of law. in fact however the constitution does not ban abortion any more than it confers the right to abortion and no amount of religious faith or zealous in his es and can change that.
going back to the idea that he was presenting about this speech about art. just because he doesn't like or dislike the policy doesn't mean he mean he defensive or rejects it explicitly in the constitution. + glad you read that because it's a good passage for people to understand his view in his views on the law and particularly a something as controversial as a subordinate. i think his consistent view all along was the constitution doesn't startle -- settle this but this is up to each state and if there were no roe v. wade umm states would allow abortions in some states would forbid it but it would not be decided by the constitution. >> guest: that was my father's general argument against the living constitution interpretation. he believed the living constitution approach which basically argues the
constitution evolves with the morals and standards of the time time. as opposed to originalism whereby justices tried to interpret the constitution according to its original public meaning what it meant when it was ratified in similarly originalism for laws and statutes. what did people think they were actually voting for on the senate floor? he believed that the living constitution approach basically allow justices cede too much power from legislators by making them the arbiters of an ages or the country's moral standards and die as of the time. he had a more modest view for judges. if the law doesn't say something that people have to fill in the
gap and is not the role of chip do justice to do that. >> host: he does talk about originalism a lot. it's an important idea and it's one of his favorite ideas and he talks about a lot of different audiences including the speech interpreted constitution. i'm one of a small but hardy group of judges and academics in the united states who subscribe to the principle constitution interpretation known as originalism. originalists believe the provisions of the constitution have a fixed meaning which does not change and mean today what they meant when they were adopted nothing more nothing less. i find that appealing and i think most people do. i know most regrets and a book like this you don't have justice scalia answering questions about some of this because whether you take the provision to have a
fixed narrow meaning or a fixed principle. i know he dealt with as few times. the board of education case is one way that illustrated. the supreme court strikes down school segregation and violates the equal protection clause. the equal protection clause was added in 1868. the state may deny anyone equal protection under the law. the same congress allowed segregated schools in washington d.c. and 1890s and the supreme court allowed separate railroad cars and a 1954 they change directions and said no look at america today having separate schools for blacks is inherently unequal. the hard question is i think justice scalia's view was the equal protection clause forbids racial discrimination but the
very people who passed it didn't think it had that meaning. so if you said it only has a fixed meaning in the narrow sense and 1868 it would suggest brown versus board of education made up a new meaning. >> guest: brown board is of particular import one obviously. he doesn't address that in the book but i believe he does and reading the law a book he worked on with co-author brian gardner. i'm not an originalists myself and i don't have a legal background so i don't know the details but i know he does address that particular item in another book. he gives the example of women's suffrage and argues back then nobody understood that meant
that women could vote. they believe that meant they had to go out and fight for an amendment and when it that way. but i don't know how that applies to brown board. i wish i could give you an answer to that. >> host: it's one of those things it almost seems as if you wish you were still here to say okay but what about those? >> guest: one guess the one thing he says often he doesn't think originalism is perfect. he said it was the best approach out there nor did he think originalists would always arrived at the same conclusion and he gives examples of instances in which he and thomas arrive at different ends of an opinion both approaching it as originalists. he offers the example of heller
the d.c. gun control case from 2008. even in that case the minority decision also, he wrote the majority in obviously he took the originalists approach but the minority approach did not as thoroughly and in fata glee as originalists but used some of the methods and preaching about it. >> host: the 2nd amendment says a well-regulated militia being necessary to the security of a free state paid the right of the people to keep and bear arms shall not be infringed in justice scalia's opinion goes back to england and the president basically says the right to have a gun was seen as a central right. justice stephens and dissent says the 2nd amendment 2nd amendment was about state militias so they go back and forth and i think a lot of
people thought it was an interesting situation where justice scalia's method or approach and one over the court. both of them had a different view about the original meaning of that provision. >> my father's argument there unfortunately i don't remember the precise number but at the time that subordinate clause referred to a specific event that early americans would have been familiar with and it wasn't the only defense. >> host: one of the other great things he did, sort of it's sort of hard to explain to an ordinary audience this whole notion of text that you interpret statutes based on what the text says and people say what else would you do but it actually was the case when he came on the court frequently the
justices would say what was the purpose of this statute? i remember a famous case in the 1970s. 1964 a law nobody may discriminate against employees because of their race, sex or gender. in the mid-1970s however there was the question of affirmative action for companies were saying the question is do you follow the text which says don't discriminate against anyone on race or follow the purpose. >> guest: that's a great example of that conflict. >> host: i do think it's not controversial but justice scalia made an enormous difference in focusing the supreme court's
attention on okay but what does this statute actually say? let's start to think about what does this actually say and there are so many arguments where he would basically get a lawyer to say wait a minute what does it actually say so they spend time focusing on the words. it's a very significant change in the law. >> guest: as you know the warren court in particular took that living constitutionalist approach. my father's attitude was he wasn't introducing anything new with originalism man textualism. it had always been that way until relatively recently and again that puts a lot of responsibility on lawmakers to craft their laws carefully. it also meant that my father
didn't like looking at what's called legislative history when focusing on the intent of the law. lawyers and judges would often look to congressional records. what do people say and conference meetings for example? were they trying to hash out. one of my father's arguments against that was people voting on this law few of them were in the conference meetings or even knew about internal discussions. they were voting on what the law actually said, the proper text of the law but that's what the people were voting on and that's what the representatives were voting on so that's with the justices should be interpreting. he also pointed out once congressional staff and congressman realized lawyers and judges were looking at legislative history they could basically doctor at and get a specific interpretation in the congressional record so could
reuses legislative history when judges are trying to interpret the law even if it had no actual appearance in the text itself. >> host: i think that was one of the advantage as he had being a justice department lawyer for a number of years before he went to court to esol is happening and that became sort of a game that the committee staff would take up a report and file a report. here's what this really meant and the danger was it wasn't necessarily part of the agreement. and he has lessened the focus on legislative history. it's one of the many delightful things. we have basically run out of time but i wanted to thank you and ed wheelan for doing a wonderful job of putting
together these speeches. it's a great read for a lot of lawyers and a lot of interesting people because it not only talks about the law but it does it in an engaging way. talks about a whole lot of other aspects of his life growing up and a really makes for wonderful read. >> guest: thank you so much. it was an honor to work on the book and it pleasure talking with you about it. ..