guns but rather simply a right to bear arms as in the arms of bears usable as clubs there's an originalist argument for it but jokes aside this is a serious debate literally a life and death of aids and for a supreme court justice like antonin scalia say this issue is settled because of one word used by our founding fathers the word bear is not just irresponsible and intellectually lazy it's dangerous saying americans have a right to hand held rocket launchers that can take down airplanes does however serve a purpose and scalia knows it can just add more legitimacy to those crackpots who believe the second amendment was written to protect the people from our government and thus we the people should be just as well armed as our government that is not what the founding fathers intended second amendment was there to protect our government from foreign invaders not from president obama who's just trying to give health care to more americans if you think it's bad that we have a supreme court justice who doesn't understand that just think how many more whacko supreme court justices we may have i

[laughter] and i arguthat this approach adttis nnty i even challenge the originalists on originalists grounds, for those of you who are interested in these matters. hamilton and calais were visionaries. they were advocates of what heclalhiouldca al program the american system. why did he call it the american system? he called that because you want to distinguish it from the british syem, and the british system was based on laissez-faire. and he sa the meric y omngfe,us adsall our republican tradition, and understood how the comments contributed to individual prosperity. theamerican system as conceived by clay d an orou thub gh t endorse henry clay, if they have been around back then. play one of the federal government to help a lot with all sorts of things including what he called eternal improved, ose bridg, cs rds whhegerell meovrrl,has done a lot of work on infrastructure and to say that we should be doing more to build and rebuild our infstructure, i want somebody to suggest to him that we should stop using that word and go back to ay's dot soeltmpovets tt d 'sraly ahe hamilton an

republicans looking for originalist and textualist and democrats are looking for the opcyst. people who believes in roe versus wade. why should it be a surprise they end up with these philosophy. >> chris: willingly or not the court was dragged in the arena in the 20 10 state of the union. president obama called out the justices seated in front of him fo the courts decision on citizens united. >> guest: last week the supreme court reversed the century of law that will open the flood gates of special interest. including foreign corporation to stand without limit in our election. >> chris: chief justice roberts found that spectacle troubling; do you? >> guest: it is eye mild adjective. i wasn't there and it is yet another reason why i will not be there in the future. i stopped going to what is essentially a political speckacle as did john paul stevens and bill ren quist department go. >> chris: do you think when a president directs comments in the supreme court and they have to sit there like potted plants as one said in a hearing and everybody else is standing or jeering that

the orpblgalists most -- orpblgalist most of -- originalists asks a common questions: would the framers support this as being constitutional. if you asked me in 2008 looking at citizens united at the issues presented to the court whether an originalist interpreting the first amendment would have found the corporate electioneering regulations this body adopted in mccain-feingold to be valid? it seems to me there was only one possible answer, and that was yes. our founding fathers recognized corporations are creatures not endowed like the rest of us with inalienable rights. they are rather fictional legal creatures. were this not the case, the corporation, whose name is citizens united, the corporation that was at issue in this decision wouldn't have stopped at simply making a movie attacking hillary clinton but would have actually cast a vote against hillary clinton. of course it couldn't. corporations don't have bad hair days. corporations don't have tasteless ties. corporations don't have moods and opinions. corporations are not people. they exist as people only in legal fiction. and i

it's not an originalist theory. one thing government supposed to do is to create a relative sense of content among the populous including the feeling that if you win elections, you can really do things. one of the things that are extraordinary complicated national system insures is that elections at the end of the day mean much less than one might think. that's something we should talk about in the 21st century. >> thank you. next question. >> my question is directly largely to professor harrison but anyone can answer. the totality of the lib ran operations has ended the war pack as a functional or meaningful break presidential behavior, in war-like conditions. >> there is certainly, there is something to that. i do think that part of what is going on with the weakness of the war power resolutions is that it was an attempt by congress to constitutionalize an issue that's governed by statues. the first part is a declaration about what the constitutional rules are. if you think that congress is wrong about those const

it's the shoe -- does the shoe pinch theory, it's not an originalist theory, but it -- one thing government's supposed to do is to create a relative sense of content among the populous including the feeling that if you win elections you can really do things. one of the things that are extraordinarily complicated and the system ensures is that elections at the end of the day mean much less than one might think and that's something that we should talk about in the 21st century. >> thank you. next question? >> my question is directed largely to professor harrison, but anyone can answer. i would argue the totality of circumstances surrounding the libyan operation have effectively ended the war powers act as a functional or in any way, meaningful break on presidential behavior, vis-a-vis foreign countries in essentially, warlike conditions. >> there is certainly something to that, but i do think that part of what is going with the war powers resolution is that it was an attempt by congress to constitutionalize an issue that is primarily governed by statutes and that hence, congress could control d

understands that republican presidents appoint a certain kind of judge, more like him and texturalists, originalists democrats appoint a different kind of judge who makes a more expansive view of the constitution. i said, would you time your retirement so that you would not -- it would be -- your replacement would be named by a president who would appoint a like minded justice and he said, absolutely i don't want to retire and have someone come to undo everything i tried to do for the last 25 years. >> jamie: and what a run it has been for him. chris, i think you are the best and he made a good choice en sitting down with you, what an honor to be chosen. thanks for bringing us a preview. >> thank you, all i can say to folks is, you know, sometimes we say, oh, this is great t.v. you don't want to miss this. either on the fox broadcast network, fox news channel, 2:00 or 6:00 p.m., this half-hour is really must-see tv. >> jamie: and it rarely hatches, thanks for bringi -- happens, great, thanks for bringing it to us and i know you will get a lot of pats on the back. for the rest of the interview, chris

some of my colleague who is are not 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 are thinking the death penalty -- 50 years ago when you were the longest serving justice when you began, the majority of americans, the bigajority is beginning to change. you are seeing it as going out of fashion. one of the reasons being the introduction of dna and 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 continue to be so pro something that is flawed? >> i'm not pro. i don't insist there be a death penalty. all i insist is that the american people never proscribe the death penalty and never adopted a constitut

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 ankara 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

. >> if you're an originalist, it's a silly question to answer whether it's unconstitutional to prohibit. it obviously wasn't when wherever provision of the constitution relying on was adopted. doesn't mean you have to prohibit them just as it doesn't mean you have to have the death penalty. these are political questions for the american people to decide. that's what democracy is about. you think abortion should not be prohibited? fine, persuade your fellow citizens. pass a law. you think the opposite, persuade them the other way but don't tell me that the constitution has taken that issue out of democratic choice. it simply hasn't and it's the same for those other issues. death penalty, abortion, sodomy, whatever. persuade your fellow citizens and go either way. >> another historical figure that you quote a lot in your book is jeremy bentham. who is he? >> he's an english law professor who has a lot about the law. >> why should you follow him? >> she's he's a smart fella. so is aristotle. he also was highly respected by the frame use of our constitution and has been influential on legal

some of my colleagues who are not textualists or not origin originalis 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 punish pts 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 punishmented. >> everyone when you began -- you're the longest-serving supreme court justice. when you began, the big majority, we've been in favor of the death penalty. that is beginning to change. you'll see it going out of fashion. a large number of people on death row didn't commit their crimes. how do you continue to be so pro-something which is so obviously flawed. >> i don't insist that there be a death penalty. all that i insist upon is that the american people never prescribe the death penalty. if you don't like the death penalty, fine. you're quite wrong that it's a majority. it's a small minority of the states

. >> eric: constitutionalist, originalist. >> dana: last week, even though greg says in my secret lifeking people's kidneys and he didn't think i had tv. i did hear about that. my sister angie married ben. that is their first wedding picture. on the beach in st. lucia. the four of us together. very special. a great. wonderful, peaceful calm thing and i wish them the best. they will do great. >> eric: very nice. go ahead, kimbo. >> kimberly: we have good pictures here of a crasher, right? everyone loves a good crasher. here is part of the security problem. they're investigating how unauthorized woman was able to accompany in the stadium. see the lady in red. >> bob: is that a lady? >> dana: yes. she was a dancer. >> kimberly: dancer in the opening ceremonies. what is she doing there? mitt was right after all. crasher! >> bob: she was going to beat the hell out of -- >> greg: we are been aing the word "colandar." but my other banned phrase is baby bump. i am so sick of hearing -- >> dana: who says that? >> greg: what are you talking about? don't you read "u.s. weekly." it's called being

what the originalists would say is the electric chair more cruel and unusual than hanging was and, of course, it isn't because it was adopted to be less cruel. and the same thing with lethal injection. >> chris: okay. in your book you lay out beyond the general argument 57 specific canons, principles for judging. here is number 38. you have 57. like the heinz varieties. statute should be interpreted in a way that avoids placing its constitutionality in doubt. in other words, try to find a way to avoid judicial conflict with the legislature. canon number 38. >> right. >> chris: but you voted to strike down obama care which the legislature in this case the congress debated for a year and in your dissent you criticized chief justice roberts for following canon 38 by fiving that the -- you are taking your head -- for finding that the individual mandate is a tax. didn't justice roberts do exactly what you say a good judge should do, try to find a way to avoid striking down a law? >> if you read the rest of the section you would say to find a way to find a meaning that the language will bea

he also climbs to be an ore originalist -- >> when we had mustets, right? >> yeah, exactly.en if you are really mad, forget it -- >> stick the power in there. >> oh, never mind. i got to take a nap now. [ laughter ] >> james in virginia you are on the "stephanie miller show." hi, james. >> hey, how are you? hey, we are all seeing that mitt romney is the second coming of sarah palin, don't you think? >> yeah. maybe we can find some friends in europe if he stops off in bordeaux france. >> yeah he is just a big ball of george w. bush and sarah palin combined. >> oh, god. >> let's live into the right-wing world. john bolton. >> i think it has been a very successful trip. i think the his meetings and speech in israel demonstrated the stark contrast between the romney view, and the obama administration view, which is that israel is a large source of the problems in the middle east. >> sure, i think we can all agree on that, can't we? >> sure. [♪ magic wand ♪] >> we can all agree on that. >> i think you would blow up the top ten stories of mitt romney and nobody would notice. [ lau

and originalist thinking, abthotu ielield look a s d fft borow y. s wri ian o t l could reconcile, to my mind, tat inconsistency. ex .e happen to have aca po. ri, tigis oek t rdethra, and what they said and wrote in the context of that era. his beef on lislative history is tt it's not, actually, as inatthe doo aclysetow. yoveth floor, all the committee reports, all the other artifacts of legislative history, they're not at gets signed into law. thlls sedn. thiloi k aneeonenh enf pleorle majority of the supreme court still does have a high regard for legislative history. >> i actually think the two reil.s are perctly copoeat wds kn wheds meant. he also doesn't care what the intentions of the framers were, he wants to know the original public understanding ofos s heer d kat ry fft rine p f ste xt h ha qioou affirmate action case that's coming up. and i just want to hear a little bit more about it. um, i'd heard th potentially, deonstros' tiheoia ngim u sow rme on yavyouab ic justices might go or which way they might be swayed, i'd be curious to any in

he said i'm on originalist, i go back to the constitution.ing airplanes back then but we can view how they might have viewed different regulations. but when it comes to cannons. that doesn't fall under the auspices of right to bear arms possibly. listen to the judge. >> the amendment does not apply to arms that cannot be hand carried. it's to keep and bear so it doesn't apply to cannons. but i suppose there are hand-held rocket launchers that can bring down airplanes that will have to be -- it will have to be decided. >> you know, i left that interviewed, and i saw him interviewed once before, what a waste he's a judge. he's the most charismatic guy on camera. you wait on the edge of your seat to say something. >> why do you think it's a waste to be a justice? >> anybody can do that. >> really? >> he can be a huge star. >> there's too many tv personalities. >> really, steve? >> some people have described him as cantankerous, and he responded. he said i simply express myself vividly. >> it's fantastic. it's totally compelling. >> ice one of th

in my mind, there is an inconsistency utice calia hiy,inlof on t other.o originalist thinking, i thinkook at what somebody from south carolina else about the wobefe twhon and the 17, it meel n w ab cotu ahe0s wandg nyon l doncit to my mind and that inconsistency? [talking over each other] >> i should defer toyu >>feliesko hes tramrk d tsa and wrote in the context of that era. his beef on legislative history is that it is not actually as inatthe ulooh nu , us i stat spes gon h all the other committee reports and artifacts of legislative history, they arentsged inawe sgn itmsonen py pplorntf fft onnd th majority of the supreme court still does have a high regard for legislative history ti apriy ncle totngsar oanmh 'tt thasthw.s mets ko o he also doesn't care what the intentions of the framers were. he wants to knowhat the original public understanding of those words at the time were. and i think that is not very tef tttetfo ength pin ive uen about affirmative action case that is coming up. i just want to hear more about it. deon-si osd that potentially h e msuptrdo if hanou a which way j