. >> sort of a sub species of textualism. textualism means you are governed by the text. that i only thing that is governed by your decision. not whether the outcome is desired. originallalism says that when you consult the text you give it the meaning it had when it was adopted, not some later modern meaning. so. >> chris: if it was the constitution written in the 18th century you try to find that those words meant in the 18s this century. >> the best example being the death penalty. i sat with three colleagues who thought it was unconstitutional but it is absolutely clear that the american people never voted to proscribe the death penalty. they adopted a cruel and unusual punishments clause at the time when every state had the death penalty and every state continued to have it. nobody thought that the 8th amendment prohibited it. >> chris: you criticize and some of your colleagues another approach using a word i have to admit i did not know existed prior to reading your book? purposecivism. did i say it right? >> yes. and do i not make it up. >> what is it? >> probably

one is textualism and we talked about that. the second is originalism. that says is the text ought to be given the meaning it had when it was adopted or when it was ratified in the case of the constitution. thus, the words unusual punishment in the 8th amendment should be given the meaning. they were understood to have by the american people who ratified it. it was clear that when that 8th amendment was ratified, the death penalty was not considered to be prohibited. indeed, the death penalty existed in all the states and was the only penalty for a felony. for somebody today to say somehow the american people have prohibited the states by ratifying the constitution, they have prohibited the states from applying the death penalty, i don't know where this comes from. the american people never voted for any such thing. that's what originalism is. what did this mean when the american people ratified it. now there are some -- the death penalty was a phenomenon that existed at the time. there were other phenomenons that existed at the time and those you can't

>> i said if you are going to be serious about textualism, it does not make an exception. those states that hadn't made an exception amended their statutes. >> when are we come back, i want to ask you why you think burning the american flag should be allowed even though personally you would throw them all in jail. daddy, come in the water! somebody didn't book with travelocity, with 24/7 customer support to help move them to the pool daddy promised! look at me, i'm swimming! somebody, get her a pony! [ female announcer ] the travelocity guarantee. from the price to the room to the trip you'll never roam alone. >>> my special guest, justice scalia. why you believe that people who burn the flag in america should be allowed to do so and yet you personally if you had the chance would send them all to jail. >> yeah. if i were king i would not allow people to go about burning the american 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. that was the main

>> i said if you are going to be serious about textualism, it does not make an exception. those states that hadn't made an exception amended their statutes. >> when are we come back, i want to ask you why you think burning the american flag should be allowed even though personally you would throw them all in jail. ♪ [ acoustic guitar: upbeat ] [ dog ] we found it together. on a walk, walk, walk. love to walk. yeah, we found that wonderful thing. and you smiled. and threw it. and i decided i would never, ever leave it anywhere. because that wonderful, bouncy, roll-around thing... had made you play. and that... had made you smile. [ announcer ] beneful. play. it's good for you. with two times the points onake lunch dining in restaurants,ch? you may find yourself asking why not, a lot. chase sapphire preferred. there's more to enjoy. did you know honey nut cheerios is america's favorite cereal? oh, you're good! hey, did you know that honey nut cheerios is... oh you too! ooh, hey america's favorite cereal is... honey nut cheerios ok then off to iceland! >>> my special guest, j

>> i said if you are going to be serious about textualism, it does not make an exception. those states that hadn't made an exception amended their statutes. >> when are we come back, i want to ask you why you think burning the american flag should be allowed even though personally you would throw them all in jail. done even more to move us. because vitamin d3 helps bones absorb calcium, caltrate's double the d. it now has more than any other brand to help maximize calcium absorption. so caltrate women can move the world. you get a 50% annual bonus. and everyone likes 50% more cash -- well, except her. no! but, i'm about to change that. ♪ every little baby wants 50% more cash... ♪ phhht! fine, you try. [ strings breaking, wood splintering ] ha ha. [ male announcer ] the capital one cash rewards card. the card for people who want 50% more cash. ♪ what's in your wallet? ♪ what's in your...your... you walk into a conventional mattress store, it's really not about you. they say, "well, if you wanted a firm bed you can lie on one of those. if you want a soft bed you can lie on o

- but that is his base sick point his judicial -- basic point his judicial philosophy is called textualismhe says you have to read the base of the law and understand what it meant during that time and then apply that not sit there and talk about values or living constitution or what the purpose was but try to stay as true to the text as possible, it is acontroversial view how judging should go on but he makes a very strong case for it. >> fascinating can't wait to watch chris wallace thanks for talking with us. >> catch fox news sunday, after our show 9:00 a.m. here on fox 5. >>> all right time now to check in with gwen get the latest on our weather outside we have been so used to having so much heat and humidity we would love to have a little break. >> we will get a bit of a break not so much in heat but humidity short lived however, just so you know. here is the highs from yesterday, 97 degrees, regan national airport 9 degrees above the seasonal average. 92 dulles, 91 bwi marshall, 4 degrees warmer than we should have been. now right now we are off to a warm start 75 degrees this hour,

>> i said if you're going to be serious about textualism, if the statute does not make an exception, it does not make an exception. and those states made an exception amended their statutes. 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. ♪ you want to save money on car insurance? no problem. you want to save money on rv insurance? no problem. you want to save money on motorcycle insurance? no problem. you want to find a place to park all these things? fuggedaboud it. this is new york. hey little guy, wake up! aw, come off it mate! geico. saving people money on more than just car insurance. according to ford, the works fuel saver package could terally pay for itself. jim twitchel is this true? yes it's true. how is this possible? proper tire inflation, by using proper grades of oil, your car runs more efficiently, saves gas. you could be doing this right now? yes i could, mike. i'm slowing you down? yes you are. my bad. the works fuel saver package. just $29.95

political gesture, refusing to allow some maniac to scare me away from a movie or rather than recon textualize it would be inappropriate to talk about it on this show because it has giant tragic associations. i think it is appropriate. the movie belongs to us just as much as it did before. he doesn't get to overshadow it. many people went to see "the dark knight rises," the largest in history. as one told a hollywood reporter, i can't live in fear. indeed. it wasn't exactly the escapist fare many turned to blockbuster for. it's themes of modern landscape, a vicious attack of the 99% from the 1%, the rich beaten by mobs and thrown out of their homes. it's an occupy wall street fantasy. also an intense chase for a computer program that will erase you from every database on earth, give you free from permanence of computer arrived memory. do many people need that? no. a loose nuke in the hands of a maniacal terrorist, loose bombs all over gotham city, basically new york city, brought me back to 9/11 and the post apocalyptic feel of new york. when horrific visuals ran through our heads and soldiers

tried to pull together all of the what you might say interpretive causes that i consider important, textualism, originalism, no use of legislative history, and have described, you know, the opposing theories of interpretation. and most important of all, maybe most important, but certainly most difficult of all, have gone through the steps that a textualist has to take in order to produce a correct reading of the text, namely the so-called cannons of interpretation which are, you know, largely ancient common sense rules of how language is used. host: who do you expect to read this? guest: i hope judges will read this. i hope lawyers will read it. i hope lawsuits will read it. and i hope legislators will read it. because it's just as important that legislators know how their language will be interpreted by the courts as it is for the courts to know how they ought to interpret the language.

so i think we both have now textual evidence and evidence from inside the court that what happened was that roberts' switch ended up producing a situation in which the bulk of the dissent was written by the same justice who wrote the opinion of the court, which is, i think, a close to unprecedented situation. >> and glen, what professor campos calls the strange treatment of the ginsberg opinion is that the dissent refers to the ginsberg dissent. the ginsberg opinion was a concurring opinion with the majority. this is yet another clue that they -- that that opinion, when the dissent with was first written, ginsberg was in the minority. >> yeah, we don't know exactly what went on here. i have great regard for professor campos, and i'm sure someone in the court have told him this, just as people have told jan crawford something a little bit different. i'm sure people have different agendas. but what he's right about is that this opinion is extremely strange. and a lot of legal experts reacted exactly the way i did, that he did, that something happened here that is very unprecedented. and

he talks about textualism, you stick to the text of the constitution and in terms of interpreting it, originalism is the idea that words have meanings that change over the years and you want to stick as closely as possible to what the words meant at the time. in the constitution, if there is a choice of what a word or phrase means, what does it mean in 18th century america when it was written? in this particular case, he was clear that he thought that...: we didn't talk about the commerce clause, but specifically, the way in which justice roberts, chief justice roberts saved it saying that the mandate is a tax. he said was nonsense because he said, there is no way -- he said, you can't call a penalty a pig. that's what he feels that roberts tried to do, sew that you can't make something up to say it's constitutional and he thinks roberts did that in saying the mandate was a tax when in fact it's a penalty. >> shannon: whether you agree or disagree with the philosophy, from the bench, he is always entertaining in sometimes very stuffy arguments. he has a reputation of it being cantanke

but he very much defends and es spouses this idea of textualism. we'll get into roe vs.eller case. the heller case, he wrote the decision. that was the one that struck down the ban on handguns here in d.c. and with what happened in colorado, one of the questions is what about assault weapons? what about magazines that can carry 100 rounds? that certainly was not something that was anticipated by the founders when they drafted the constitution. >> he has warned this is not a goodbye to the bench. he is planning to stick around, i did read that. we'll learn all of that and more on your exclusive interview sunday. chris, thank you. >> allison, maybe he is impressed by my great legal mind. may be i'm selling myself short. >> i always believe that. i certainly trust in your legal mind. thank you, chris. you can catch fox news sunday here on fox 5 at 9:00 a.m. sunday morning. >>> coming up, "twilight" torn asunder. why it could be the end of the road for robert pattinson and kristen stewart -- >> oh, no! >> -- a day after she admitted cheating. >> and a new study linking shift