his thoughts on campaign finance and politics and his colleagues. it's all on the table tonight, my exclusive interview with antonin scalia. "reading law -- the interpretation of legal texts." welcome. the book is very much a template for the way you conducted your legal life. you are a man that believes fundamentally that the law in america is based on the constitution. >> rigidly, i would not say, but it should be based on the text of the constitution, reasonably interpreted. >> a lot of people say the constitution was phrased in a deliberately vague way. they realizeds in generations to

come, things may change which may put a different impression on a particular piece of text. >> right. >> why are you not prepared to accept that you can move with the times, to evolve? >> i do accept that with respect to those vague terms in the constitution such as equal protection of the laws, due process of law. cruel and unusual punishments. i fully accept that those things have to apply to new phenomena that didn't exist at the time. what i insist upon, however, is that as to the phenomena that existed, their meaning then is the same as the meaning now. for example, the death penalty. some of my colleagues who are not tex you'llists or originalists, at least, believe that it's somehow up to the court to decide whether the death penalty remains constitutional or not. that's not a question for me. it's absolutely clear that

whatever cruel and unusual punishments may mean with regard to future things such as death by injection or the electric chair, it's clear that the death penalty in and of itself is not considered cruel and unusual punishment. >> more and more americans come around to think of the death penalty as an an krkara nisic thing. a big majority of americans would be in favor of the death penalty. that is beginning to change and you see it, for lack of a better phrase, going out of the fashion. one of the reasons being, dna establishing a large number of people on death row didn't commit their crimes. how do you equate that, as a man of fairness and justice, how do you to be so pro something which is so obviously flawed? >> i'm not pro. i don't insist that there be a death penalty.

all i insist upon is the american people never proscribe the death penalty. if you don't have the death penalty, fine. you're quite wrong it's a majority. it's a small minority of the states that have abolished it. the majority still permit it. but i'm not pro death penalty. i'm just anti-the notion that it is not a matter for democratic choice, that it has been taken away from the democratic choice of the people by a provision of the constitution. that's simply not true. the american people never ratified a provision which they understood abolished the death penalty. when the cruel and unusual clause was adopted, the death penalty was the only penalty for a felony. >> all we would have to do is amend the constitution. it can be amended. it's changeable, but it's changeable by a process, not by asking the judiciary to make up

something not there in the text. >> the cruel and unusual, i wouldn't prescribe the death penalty as much as torture. i was fascinated by your interview where you said torture wasn't an a cruel and unusual punishment. torture wasn't punishment. hang on a second, clearly it can be a punishment. if you're an innocent person. say in guantanamo bay and you've expressed views about this, too. say you've been picked up off a battlefield and taken to guantanamo, but you are genuinely innocent. you had nothing to do with anything, and you get tortured, that becomes a punishment, doesn't it? >> it doesn't become a punishment, it becomes a torture. we have laws against torture. i don't think the constitution addressed torture, it addressed punishments. it means punishments for crimes. >> what if you're an innocent person being water boarded? >> i'm not for it, but i don't think the constitution says anything about it. >> isn't it a problem, though,

with the originalism? >> it's not a problem. it's a problem of what does the constitution mean by cruel and unusual punishments. >> isn't it down to the supreme court to effectively give a more modern interpretation of the spirit of what that means? >> well, that's lovely. >> why don't you think it is? >> because -- look, the background principle of all of this is democracy. a self-gompbing peop inin inini decide the laws that will be applied to them. there are exceptions to that. those exceptions are contained in the constitution, mostly in the bill of rights. and you can not read those exceptions as broadly as the current court desires to read them. thereby depriving americans of legitimate choices that the american people have never decided to take away from them.

and that's what happens. whenever you read punishments to read torture. if you are sentenced to torture for a crime, yes, that is a cruel moneyishment. but the mere fact that somebody is tortured is unlawful you should our statutes, but the constitution happens not to address it, just as it does not address a lot of other horrible things. >> what did you argue most with justice scalia about? he's one of the world's great arguers. he's done battle with them all. >> he's an intellectual giant. and we had -- in the first book, we had four debates. where we had pro and con. in this book, we had none. the biggest issue we almost had a debate about, but he persuaded me not to was whether a murderer can inherit. can a son, for example, murder

his parents and move up his inheritance and still take whatever the property is from his parents if the statute doesn't say anything about it. and we all feel that that's wrong, and i was at first arguing that there should be an equitable exception and we absolutely have to prevent a murderer from inheriting. what did you say in response to that? >> i said if you're going to be serious about textulism, if the statute doesn't make an exception, it doesn't make an exception. and those states made an exception. that's what happened. >> let's take a break. i want to ask you why you think burning the american flag is allowed, even though personally you would throw them all in jail. ñe

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justice antonin scalia and the co-author of his book. you left the viewers on a cliffhanger. why do you believe people who burn the flag in america have the right to do it, and yet you personally if you had the chance would put them all in jail. >> if i were king, i wouldn't allow people to burn the flag. however, we have a first amendment which says that the right of free speech shall not be abridged. and it is addressed in particular to speech critical of the government. i mean, that was the main kind of speech that tyrants would seek to suppress.

burning the flag is a form of expression. speech doesn't just mean written words or oral words. it can be burning a flag, a symbol that expresses an idea. i hate the government. the government is unjust, whatever. >> if you're not sure, then in the end, no one knows the constitution better than you do. doesn't it come down to your personal interpretation of the constitution? if it isn't clear cut, which it clearly isn't, you in the end have to make an opinion, don't you? >> well, forget this person has to be convicted by a jury of 12 people who unanimously have to find that he was inciting to riot. so, you know, it's not all up to me. it would be up to me to say there was not enough evidence for the jury to find that perhaps.

>> a fair reading of speech including symbolic speech, there's a lot of case law about that, of course. but it's a good example of why we think skrikt construction is a bad idea. a lot of people think justice scalia is a strict constructionist when, in fact, he and i both believe -- >> what does that mean? >> well, it really means a narrow reading. a crabbed reading of statutory words or constitutional words. and it's a kind of hyper literalism which we oppose. >> at the moment, under your interpretation of the constitution, you should be allowed to raise money for a political party. the problem, as i see it and many critics see it, that has no limitation to it. so what you've now got are these super pacs funded by

billionaires effectively buying elections. that cannot have been what the founding fathers intended. thomas jefferson didn't sit there constructing something which was going to be abused in that kind of way. i do think it's been abused. don't you? >> no, i think so thomas jefferson would have said the more speech the better. so long as people know where the speech is coming from. >> i'm talking about money to back up the speech. >> you can't separate speech from the money that facilitates the speech. >> can't you? >> it's utterly impossible. could you tell newspaper publishers, you could only spend so much money in the publication of your newspaper? >> that's entirely different. >> would they not say you're abridging my speech? >> but they're not 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?

>> newspapers endorse political candidates all the time. what do you mean -- they're almost in the business of doing that. >> do you think perhaps they should be? >> i certainly think not. as i think the framers thought, the more speech the better. you are entitled to know where the speech is coming from. you know, information as to who contributed what. that's something else. but whether they can speak is, i think, clear in the first amendment. >> is there any limit in your eyes to freedom of speech? what are the limitations? to you? >> i'm a textualist. what the provision reads is congress shall make no law abridging the freedom of speech. so they had in mind a particular freedom. what freedom of speech? the freedom of speech that was

the right of englishmen at that time. >> what's the difference between speech about insurrection being unacceptable and speech as you're burning a flag. isn't that a form of insurrection? >> no, no. no, no. that's just saying we dislike the goth. it's not urging people to take up arm against the government. that's what i mean by speech urging insurrection. speech inciting to riot or inciting to -- >> or shouting fire in a theatre. what about that? >> one of the more complex things about you, justice scalia, which i thinkcriticized measure. you centered against something where i think common sense would dictate the opposite. marilyn craig, a young girl who had been abused by a child molestor. and she gave evidence through closed circuit television. she didn't appear in court and the abuser argued that this was

unconstitutional because under the confrontation of the constitution he should have been allowed to be face to face with his victim. what part of human decency or common sense says that he should have the right to be face to face with his young girl victim? because you dissented against the supreme court. you decided he should be allowed to. >> all legal rules do not come out with a perfect sensible answer in every case. the confrontation clause in some situations does seem to be unnecessary. but there it is. but the meaning is clear. you are entitled to be confronted with the witnesses against you. >> even when the witness is a young girl who's already been abused and is actually traumatized by what happened? >> what it says is what it says.

>> do you go home at night when you dissent in that particular case? do you have misgivings about it on a personal level? or are you always able to divorce that from your, as you say, legal responsibility to uphold the lesser of the constitution. >> i sleep very well at night, knowing i'm doing what i'm supposed to do. which is to apply the constitution. i do not always like the result. very often i think the result is terrible, but that's not my job. i'm in charge of making the constitution come out right all the time. >> let's take a break and speak about roe v. wade. you had very strong opinions at the time. i suspect you have equally strong opinions today. we'll find out. people with a machine.

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my special guest justice antonin scalia and his co-author. let's turn to roe v. wade. you had very strong opinions about this at the time. i know you do now. why are you so violently opposed to it? >> i wouldn't say violently. i'm a peaceful man. adamantly opposed. basically because the theory that was expounded to oppose that decision does not make any sense. and that's namely the theory of substantive due process. there's a due process clause in the constitution, which says that no person shall be deprived of life, liberty or property without due process. that is obviously a guarantee, not of 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 versus wade. and it's a theory that is simply a lie. the world is divided into substance and procedures. >> should abortion be illegal in your eyes? >> 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. >> the constitution when they framed it, they didn't even allow women to have the right to vote. they gave women no rights. >> come on. no rights? >> did they? >> of course, they were entitled to due process of law. >> all kinds of rights. >> you couldn't send them to

prison without the same kind of trial a man would get. >> but again, it comes back to changing times. the founding fathers would never 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? >> i don't know why. why wouldn't it? >> because at the time -- >> they didn't have wives and daughters they cared about. >> they did but it was not an issue that they would ever consider framing in the constitution. >> i don't -- >> women began to take charge in the last century of their lives and their rights and so on and began to fight for these. everybody believed that was the right thing to do, didn't they? why would you be instinctively against that? >> my view is regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad, regardless of how you come out on that, my only point is tt constitution does not say anything about it. it leaves it up to democratic choice. some states prohibited it, some states didn't.

what roe versus wade said was that no state can prohibit it. most things in the world are left to democratic choice and the court does not do democracy a favor when it takes an issue out of democratic choice -- >> how do you as a conservative catholic, how do you not bring your personal see of what is right and wrong to that kind of decision? because clearly as a conservative catholic, you're going to be fundamentally against abortion. >> just as the pro choice people say the constitution prohibits the banning of abortion, so also the pro life people say the opposite. they say that the constitution requires the bans of abortion

because you're denying someone life without due process of law. the constitution said nothing about the choice. regardless of what my views as a catholic are, the constitution says nothing about it. >> what has been your hardest decision, do you think? >> my hardest? >> yeah. >> you don't want to low. >> i do want to know. >> no, it's the dullest case imaginable. there is no necessary correlation between the difficulty of a decision and its importance. some of the most insignificant cases have been the hardest. >> what has been the one that -- >> it would probably be a patent case. do you want me to describe it -- >> no. all right, what has been in your view the most contentious? what's the one that most people ask you about? >> contentious? well, i guess the one that created the most waves of disagreement was bush versus gore. okay?

>> get over the possible corruption of the american presidential system? justice scalia? >> look it, my court didn't bring the case into the court. it was brought into the courts by al gore. he is the one who wanted courts to decide the question. and richard nixon thought that he had lost the election because of chicanery in chicago, he chose not to bring it into the courts. but al gore wanted the courts to decide it. the only question in bush versus gore was whether the presidency would be decided by the florida supreme court or by the united states supreme court. that was the only question. and that's not a hard one. >> no regrets? >> oh, no regrets at all. especially since it's clear that the thing would have ended up the same way anyway. the press did extensive research

into what would have happened if what al gore wanted done had been done county by county and he would have lost anyway. >> when people say about you that you're this fantastic justice, no one dispute that. incredibly charismatic. you ask the most questions. >> i don't ask the most questions. that's not true. >> apparently someone has asked the last 35 year, you ear the guy that asks the most questions. >> i used to be. >> you ask more than justice thomas, right? >> that's a low bar. >> it's just a bit weird. the guy can join the supreme court and literally not ask any questions? >> that's noft unusual. thurgood marshall rarely asked any questions. in fact, a lot of them -- i was the first one who started asking a lot of questionses. i appeared before the court once before i became also judge. i was serving in the justice

department and i got two questions the whole time of my argument. they both came from byron white. it was not at all unusual for justices not to ask questions. >> let's take another break. so leave clarence alone. >> in fairness, he has a principled reason. he told me in his interview, and this is all on the record, he does not ask questions because he thinks it's too cocophonous and he doesn't want to add to the cacophony. i want to ask you what makes you tick. [ female announcer ] caltrate's done even more to move us.

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>> back with justice scalia and the co-author of his book. are you a good colleague?

how do you get along with our other supreme court justices. are there clashes there? >> there are clashes on legal questions, but not personally. the press likes to paint us as nine scorpions in a bottle. that's just not the case at all. >> you and justice roberts have had a bit of a parting of the ways. you've gone from being best buddies to warring enemies. >> who told you that that? >> i think i read it in some of the papers. credible sources. >> you should not believe what is quoted in the newspapers, because the information has been made up or given to the newspapers by somebody who was violating confidence, which means that person is not reliable. . >> have you had a falling out? >> no, i haven't had a falling out with justice roberts. >> loud words exchanged?

>> no. >> best buddies? >> my best buddy is ruth bader ginsberg. >> and you disagree with her on just about everything. >> just about everything. >> what do you do when you're not presiding in the supreme court? >> i like to play tennis and in my later year, since i'm circuit justice for the fifth circuit, i have gotten into hunting. so i do a lot of hunting of various animals. >> you have been hunting with dick cheney? >> i did indeed. >> what was that like? you lived to tell the tale. >> he's a good wink shot. >> humans or animals? >> ducks. >> you got into trouble over that. they said it was a potential conflict in something you were presiding over. how carefully do you think -- before you accept an invitation to go hunting with dick cheney, how hard do you think about that

as a potential conflict? >> well in that case, i accepted the invitation long before the case that was the alleged source of the conflict was before the court. and nafs nothing -- cheney was not personally the defendant. he was named because he was the head of the agency that was the defendant. and justices have never recused themselves because they are friends with the named head of an agency. in fact, justices are friendly with a lot of heads of agencies and cabinet officers and what not. if we had to recuse ourselves every time one of our friends was named, even though his personal fortune was not at stake, we would not sit in a lot of cases. so that was tempest in a teapot. >> when people say you are overtly political with some of your decisions, some critics do.

how do you feel about that? does that annoy you? >> i usually don't read it. >> is this news to you? >> i think it's pay tently fpat. justice scalia has a record of deciding cases that goes against his pred lixs. a good justice will decide based on a governing text that goes against what the judge may think is wise policy. isn't that true? >> look it, i have ruled against the government when republicans were in the administration. and i've ruled for the government when the democrats were in the -- i couldn't care less who the president is or what the administration is. >> do you think any of your colleagues act from a politically motivated manner? >> not a single one of them. >> i know you can't discuss anything in the last session, but the classic example would be the health care thing. >> i don't think any of my

colleagues on any cases vote the way they do for political reasons. they vote the way they do because they have their own judicial philosophy. and they may have been selected by the democrats because they have that particular philosophy or they may have been selected by the republicans because they have that particular judicial philosophy. but that is only to say that they are who they are. and they vote on the basis of what their own view of the law brings them to believe. not at all because -- the court is not at all a political institution. not at all. not a single one -- >> when you see justice roberts, chief justice roberts getting criticized for being political, for being partisan -- >> i've been out of the country for most of that, i have to tell you. >> does it offend you that his

integrity would be questioned like that? >> it offends me that people point to the fact, and they didn't used to be able to when david suter and john paul stephens were still on the court. they often voted with the appointees who were democratic appointees so the 5-4 wasn't all five republicans versus four democratic. now that they're off, it often does turn that way, but that's not because they are voting their politics. not because they're voting for the republicans or voting for the democrats. it's because they have been selected by the republicans or selected by the democrats precisely because of their judicial philosophy. so it should be no surprise that the five appointed by the republicans tend to have a certain judicial philosophy and the four appointed by the democrats tend to have a

different one. i mean, that's what elections have been about for a long time. >> when you lose a -- or a case goes against what you would like it to go, what do you do? do you go have a few drinks? chill out? how do you deal with failure like that? because these are big deals. you're a supreme court judge. >> probably mutter something under my breath or something. i mean, you know, you play the hand you're dealt. that's all. and you can't take it persona y personally. >> i want to come back and talk to you about family. i know you're a huge family man. you've been married a very long time to a long suffering woman, would you say? >> i would say so, yes. >> i'll find out just how long suffering in a moment. those surprising little things she does

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>> back with justice scalia and brian garner, author of "interpretation of legal texts. have you ever broken the law, justice scalia? >> have i ever broken the law?

>> yeah. >> i have exceeded the speed limit on occasion. >> ever been caught? >> oh, yes, i've gotten tickets. none recently. >> that's it? that's the only criminal action in your life? >> yeah. i'm pretty much a law abiding sort mo sort. >> i like the phrase "pretty much." it gives me somewhere to go. >> i'm a law-abiding sort. >> what is your guilty pleasure? >> i don't have any guilty pleasure. how can it be pleasurable if it's guilty. >> i have guilty pleasures. >> no, you don't. >> i do. everyone does. >> anything i shouldn't do? smoking. >> you've been married for how long? >> 52 years. >> an amazing marriage. nine children. how many grandchildren? >> 33. >> amazing. what has been the secret of such

a long-standing marriage, do you think? >> maureen made it very clear early on that if we split up, i would get the children. >> we said before the break that possibly she was a long suffering wife. did you mean that? >> she has worked very hard. i have not gone after the dollar for most of my life. we didn't have a lot of money and she didn't have help at home raising that many kids without a nanny or without for many year, even people to help with the hou housework was hard. she worked very hard. >> how many times have you been properly in love in your life? >> properly in love? >> i think maureen is it.

>> you struck gold. >> oh, yeah. >> will you ever retire? >> of course i'll retire. certainly i'll retire when i think i'm not doing as good a job as i used to. that will make me feel very bad. >> and as we sit here now, what would you say you're greatest achievement has been as a supreme court justice? >> wow. i think despite the fact that not everybody agrees with it, i think the court pays more attention to text than it used to when i first came on the court and i like to think that i've had something to do with that. i think that the court uses much less legislative history than it used to in the past. in the '80s, two-thirds of the opinion would be the discussion of the debates on the floor and the committee reports. and that doesn't happen anymore. if you want to talk about individual -- >> on that point, on the history

point. again, critics would say to you, hang on a second. because you're such a constitutionalist and always go back to the way they framed the constitution. they debated all that, that is in its way legislative history, isn't it? >> what is? >> the constitution and amendments and so on. >> i don't use madison's notes as authoritative on the meaning of the constitution. i don't use that. i use the federalist papers, but not because they were the writers of the federalist papers were present. one of them wasn't. john jay was not present at the framing. i use them because they were intelligent people at the time and therefore what they thought this language meant was likely what it meant. >> why do you have such faith in those politicians of that time? i mean, these days, if the current proper politicians created some new constitution,

people wouldn't have the faith that burning un-flynn muching faith that you do. why are you so vinced that these guys over 200 years ago were so right? >> you have to read the federalist papers to answer that question. i don't think anybody in the current congress could write even one of those numbers. these men were very, very thoughtful. i truly believe that there are times in history when a genius bursts forth at some part of the globe, like 2000 b.c. madison said that he told the people assembled at the convention, gentlemen, we are engaged in the new science of

government. nobody had ever tried to design a government scientifically before. they were brilliant men. >> do you wish we had a few of them now? >> i wish we had a few of them now. and i certainly do not favor tinkering with what they put together. >> justice scalia, it's been fascinating. brian, congratulations. it's an amazing book. anyone that's listened to that will want to go and read it. it's full of humor and i think it will give people a much better understanding of what you're about and i think you've helped bring that out bryan. may you sell many books. it would be a lot less colorful without you. >> thank you. >> after the break an only in america special. justice scalia takes me on a tour of the supreme court and names his favorite american president ever and his favorite italian pasta dish.

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tonight we talk presidents and pasta. >> so in the bowels of the supreme court. >> bowels? >> do you still get a little thrill when you come in. >> no. i've gotten used to it by now. it's a nice place to work. >> who has been the most

impressive president for you personally. >> most in history? >> no. >> in my lifetime? >> in your lifetime, yeah. >> i guess ronald reagan. i would be an ingrate if i didn't say ronald reagan. >> what made him special. >> he was the great communicator. he had a way of making important and complex ideas exrensible to the people. >> did he make any requests. >> no. >> did he say anything? >> no. >> would you tell me if he had. >> he almost got my name right. >> when we went out to the press room in the white house and one of reagan's aides says to me, well, we think he'll get scalia

right, but we don't know about antonin. and sure enough he messed up antonin. >> you were the first italian in the supreme court. >> it was a big deal for the italians. i got an enormous amount of mail afterwards. >> do you ever have to pay for spaghetti in new york. >> i have a lot of italian friends. >> but i put questions out on twitter of all the serious ones, one popped out which is one is what is his favorite pasta dish. >> your wife does amazing macaroni. >> she does. but if i had to pick a favorite. there is a sicilian dish with sardines and fennel. you can buy the yellow can and it's very good. >> what do you call it?

pasta con sarde. >> i would have pasta bolognese. it is 10:00 here on the east coast. trying to get answers from five republican members of congress who are alleging massive infiltration of the u.s. government by radical islam i can gee haddists. one of those law makers refused to answer questions about her unproven claim that muslim extremists had infiltrated the government and john mccain took an extraordinary step and went on the senate floor calling her out on it. >> when anyone, not least a member of congress, launches degrading attacks against fellow americans on the basis of nothing more than fear of who

they are and ignorance of what they stand for, it defames the spirit of our nation and we all grow poorer because of it. >> now, this almost never happens. a sitting member of congress publicly scolding other sitting members let alone members of members of his party. as we've been reporting, they want the inspectors general of five security agencies to look into what bachmann calls the possible deep penetration, her words, of muslim extremists in the government. they're pointing fingers at a particular person, this woman, huma abedin, implying that she may be somehow working on behalf of the muslim brotherhood. again, senator mccain today. >> to say that the accusations made in both documents are not substantiated by the evidence