Uncommon Knowledge with Justice Antonin Scalia

welcome to

uncommon

knowledge

I am Peter Robinson, nominated by President Reagan and confirmed in the Senate by a vote of 98 to zero anonin Scalia has served since 1986 as an associate

justice

of the United States Supreme Court Justice Scalia's most recent book written with Brian Garner reading Law, the interpretation of legal texts on behalf of the federalist society and

uncommon

knowledge

Mr. Justice Scalia, welcome, thank you Peter, glad to be here, reading segment one Law Quote, we seek a return to oldest and most common sound interpretive principle in its entirety Context words mean what they conveyed to reasonable people at the time they were written.

Close quote, Mr. Justice in this 2 36th year of our Republic, why should it be necessary to devote more than 400 pages to a common and sensible principle? That's a very good question, well, the reason, as explained in the first part of the book, is that we have gone off the rails today, especially when it comes to the Constitution, the accepted opinion and the declared opinion of my court. repeatedly. is that the words do not necessarily mean what they were understood to mean at the time, but they can be given a new meaning, it is up to the court to say what they mean today, what they mean today, what they should mean today, and it is up to the court to decide that that is new and, but you know, everything comes under the title The Living Constitution, we will get to that phrase, but again and again it makes it clear again and again when reading the Law. how to capture cosmic background radiation from some distant cataclysmic event a couple of quotes since the mid 20th century there has been a failure in the transmission of our heritage again in the last 50 years especially we have seen the judiciary take control of a territory that should be resolved legislatively once again some Commentators have claimed since the mid-20th century that all language is ambiguous 50 years ago something terrible happened what it was what went wrong why it happened then wow we didn't try to explain why why it happened then um, it happened then, uh, the moment when that philosophy took over is about the time of the Warren Court, uh, there were hints of it before, I guess, but it was never the accepted philosophy of the judiciary, um, the living Constitution.

The notion that words are all words are ambiguous, it's really up to the court to give them meaning, is much more attractive to academics than to judges, and it's really academia that brought all of this to prominence and to the majority. state that it now enjoys, so the court is lagging behind, the court is lagging behind the academy, yes, I think there were probably, I think there were probably law professors who espoused these views before the courts will adopt them, okay, um reading Law. once again the purpose of vist I pronounced it correctly purpose of vist purpose of vist well the purpose of vist you have to have some word for it you know I made it up the purpose of vist deres the meaning of the text of the purpose and it is not a purpose of the meaning of the text that is related to The Living Constitution or that is different that is uh that is different look there are two things that the book urges that lawyers and judges be the number one textualists, okay, the final point to point out It's a point urged by someone who is not a textualist at all, does not want to be bound by the text at all and is simply analyzing what the purpose of this text was and once he realizes he knows something.

Purpose can be identified on an infinite number of levels, the top of which is, you know, doing good and avoiding evil. And depending on the level of generality that you choose, you can turn a very narrow statute into a very broad statute because the broad purpose that you are looking for is this, and therefore, even though the text does not specifically address that particular question, the question should be answered that way because of this text which is a person who is not a textualist, it is an intentional, even if you are a textualist and to say yes, we are bound by the text, you can give the text the meaning it had at the time or you can say , and in fact, many of the living constitutionalists say that we are all textualists now, yes, everyone starts with the correct text, but uh, but they don't end with that, they don't end with that and they don't give it the meaning that it had when people adopted it, that's especially important when it comes to a constitution because a constitution, uh, removes from the democratic process certain particular elements and you're manipulating democracy when you remove elements that people never really agreed to remove, you know, the death penalty is a good example.

I have sat with four colleagues who Who thought it was unconstitutional even though it is absolutely clear that the American people never voted to make the death penalty unconstitutional when the Eighth Amendment was adopted? The cor and unusual punishments clause is that the death penalty was the only penalty for a serious crime. definition of felony, all states had the death penalty, so no one could plausibly claim that the American people said that no state should impose the death penalty, but I have sat with four colleagues who have adopted that position and say that the death penalty is unconstitutional because it should be because today we should consider it unusual and that it distorts democracy.

It should be up to the American people to take something from democracy to take it away, you know, the Constitution doesn't require you to have the death penalty. You think it's a bad idea to persuade your fellow citizens and abolish it like many states have done, but you know how to say that the American people surrendered it Beyond the Limits of Democracy is simply an absurd segment that reads two cannons The law features 57 cannons I am citing that canons properly considered are not rules of interpretation in any strict sense, but rather presumptions about what conveys a intelligently produced text.

Could you explain that well, again, most of it is common? Let's say most of them are like that or many of them are like that. old that have Latin names one of them is inclusio unus exclusio alterus uh when you include one thing, you exclude another implicitly, that's a fancy name for the application uh imp negative, for example, when you say um uh free credit uh uh free loans for the people with good credit, the implication is that if you don't have good credit you don't get a free loan, okay, that's inclusio Unos, that is, people with good credit, exclusio alarus implicitly excludes others, those who don't have good credit, so on the disc 57 guns and several of the reviewers make a point that I have a feeling you will be able to handle very well, but they point out that the Guns represent extratextual assumptions that you bring to the text, so Judge Richard Posner Posner says I quote it here I close there reading Law the related statute Cannon is not this to tell you and your co-author the related statute Cannon is not to tell the truth based on a realistic evaluation of what the legislature really meant by the Canon se based on a realistic assessment of what the legislature should have meant those are his words and then Judge Posner says in other words now I'm quoting his review judges should impose correct reason on legislators judges should in short clean up after that legislators do not I would not say that with respect, look, we say from the beginning that some of the Canons, like even OAS, are simply common sense, they are simply the way that people understand the language when others, however, have something of uh what.

Should I say social or legal? I support that there is a legal reason for them and the one we just talked about that you have to interpret the statutes so that they are harmonious is one of those that you don't want to make a mess of. from the Corpus jurist uh and that's always been the rule you don't interpret statutes so that they contradict each other if you can avoid it now if you want to call that uh uh go beyond the text I don't think so, I think it's anyone who enacts a statute , you should know that old rule and therefore you should know that that is the way whatever they write will be interpreted, if they leave it vague it will be interpreted as conforming to the old statutes, so, you have Judge Posner. and Stanley the fish in the New York Times Stanley the fish is a layman, of course, not a judge, and you have little Robinson here, it is clear that they are trying to find the distinction, it is clear that you bring a certain thing, you bring knowledge of the English language to text, you say and all reviewers agree that words have no inherent meaning in themselves.

You bring a knowledge of the English language to the text. You can also call that additional text, yes, exactly, that's right, so Posner says, wait a minute. minute says you have to bring knowledge of English to the text says you have to bring 57 guns to the text well, that's what Justice Scalia wants to bring to the text Justice Brier may want to bring some other things to the text how do you draw it? the distinction between what are assumptions that are in service of the text and those that open the door wide to judicial interference or Fiat, some of them, as I say, are just standard modals in which people understand the language , okay, I got it and that's a whole category that others can't complain about.

Others are so traditional that they have been around for so long. WR that anyone who is a legislator and writes a statute should know that that is the way it will be interpreted by the people and by the courts, an example of that is the proposition that was when you have a list at the end of the thing at the end of a passage that says something like uh uh dogs cats uh General uh uh parrots budgies and other animals that The term generalized will not be interpreted to mean elephants, it will be interpreted to mean other animals of the same type, that is, domestic animals, pets, uh, that's an old principle, it's almost a question of legal grammar, that's how it is, it's almost a legal grammar, right?

I'm not saying that every English-speaking person would automatically understand it, but every English-speaking lawyer would certainly understand that this is how courts have interpreted such a phrase for hundreds of years. In the segment three errors in reading The Law presents not only 57 guns for the way it should be phrased for the television audience and the audience here Stanley Pesca the New York Times critic almost despite himself called the book a compelling read. By the way, I agree that professionals are simply fantastic, almost the best. funny, in my opinion, are the 13 falsehoods exposed, yes, that was funny.

Well, let's take a couple of those. One of the 13 falsehoods cites the false notion that words should be strictly interpreted. Strict constructionism as opposed to fair reading. Textualism is not a doctrine to be taken seriously close quote with which I googled Antonin Scalia Plus strict constructionism and you know what many people think you are a strict constructionist not a doctor to be serious Tak explain explain that you should not interpret language strictly or you should not interpret it carelessly you should interpret it reasonably if strict constructionists give a bad name to serious textualists who say that language must be interpreted reasonably the first amendment is the example I always give if you were a strict constructionist you would have to believe that The Congress could censor handwritten letters because the entire first amendment is to say that Congress limits freedom of speech or the press.

A handwritten letter is not a speech, it is not the press, so it can be censored, right? No, I mean a proper understanding, the first amendment is a speech. Press it, it means there is a figure of speech called oh, I see a sale where the part represents the whole. To know the name STI, my goodness, that's brilliant. I grew up. Did you have a Jesuit education? I had it. I didn't have it, but. I grew up in upstate New York, where the English teacher just said "think skincity." Ah, I see, yes, okay, it's so ccti sticy and I think speech and press are sticy and represent the transmission of ideas, expression whether it's done by semaphore or morse. code burning a flag as long as it is your own flag uh you are free to express yourself well another falsehood uh citing the reading of the law the false notion that committee reports and floor speeches are worth AIDS in construction statutory close quote Mr.

Justice Scalia you How long do we have how long do we have interest in investigating the intent of a legislature? Well, yes, you will rarely find a court that does not say that the object of interpretation is to discern the intent of the legislature. They say that all the time. I think Aristotle said that I think it's wrong, at least it's wrong, in a democracy we are, as the famous phrase in the Massachusetts Constitution says, a government of laws, not of men, we are governed by the laws that Congress enacts, not because of the unexpressed intention of whoever wrote them and if they meant it when they said below, that's their problem.

Frankly, if the storyLegislative is completely clear about this, too bad, we are governed by laws, so that's point one, you shouldn't worry. about your intent anyway, you should care about what was enacted for the people, that's what governs them, but secondly, even if you were interested in legislative intent, are you going to find that in legislative history for a side? in a multi-member body it is very difficult to understand what the intention was beyond the words that everyone voted for, other than that they could have voted for them for very different reasons, or simply because one or two of them say oh, I think language does this, the rest may not have felt the same way, so the notion that you can pull statements from a couple of legislators or even a committee report that is usually written by some teenagers and not even members of the Federal Society, if we are lucky, yes, not even, not even, very often, not even the committee reads it, much less the whole house reads it, much less the other house, uh, the notion of that in some way reflects the intention. of the entire Congress and the president who had to sign the thing, I mean, it really is the last, uh, the last surviving fiction in American law, there are many fictions, you know, this is a fiction, this is what you have. engage in a willing suspension of disbelief to accept that last falsehood cite the false notion that the current Constitution is an exception to the rule that legal texts must be given the meaning they had when adopted close cite the argument, Of course, it's that the wisest, the editors were wise men, they understood that they were building a document for the ages, so they left a little play in the joints, they allowed this thing to breathe, to expand, to adapt, and the body In charge of executing these expansions and adaptations is the judiciary, yes, no, they knew that there would be a need for change and that is why they had an amendment provision, since some constitutions do not, this constitution could be amended and, if you listen to John Marshall, at the Bank.

In the case of the United States, what allows the application of the Constitution to new situations that cannot be imagined by its framers is not the ability of the courts to change the meaning of the Constitution but rather when the courts interpret provisions of the Constitution that they must as John Marshall said, to give those Provisions a broad meaning because they have to be used in situations that cannot be imagined now, that is the way the Constitution is expandable and flexible, not by being amendable through the courts, The political and legal culture has evolved such that we amend the Constitution very rarely. uh you mean people through the formal court.

It would amend any provision of the Constitution, and in fact the only provision it would amend is the amendment provision. It is very, very difficult to amend it, infinitely more difficult than when that provision was drafted. You know, you need two-thirds of the vote. of each chamber to propose the amendment and then it has to be approved by three-quarters of the states. I found out once, if you take a bare majority in the smallest states by population, something less than 2% of the population could prevent a constitutional amendment that is probably too harsh and certainly much worse than it was, you know, the disparity. of population between California and Rhode Island is much larger than what existed at the time of writing, so I would amend that segment four how to do's and don'ts how to don't Row versus Wade two quotes that say Law in Row v.

Wade the Supreme Court declared unconstitutional state statutes that in no way contradicted any specific provision of the Constitution close quote second quote Judge Blackman Opinion 1973 By itself, the right to privacy, whether based on the concept of personal liberty of the 14th amendment or as determined by the district court in the reservation of rights to the people of the ninth amendment, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. So Justice Blackman, writing for the majority, takes pains to substantiate the Court's decision. Well, I guess he could do it on the 14th and 9th, or if he reads your opinion carefully, he can choose the 14th or the 9th and he was wrong. 14 or said that the right to privacy whether it is based on the concept of personal liberty of the 14th amendment as we felt or as determined by the district court in the reservation of people's rights of the 9th amendment well, a Again, this is one aspect that the book addresses when you have terms in the Constitution that are not ambiguous in the sense that they can mean one of two things, but are general, so they can cover many things.

You have to interpret them so they don't cover things up. that the people who adopted that provision didn't think they didn't think they covered and, you know, unusual punishments are one, of course, those words could cover a lot of things, but it's clear from the history of the times that nobody thought that nobody included the death penalty and it's the same thing with this right to abortion, whether it's founded on the 14th or I mean God, the Ninth Amendment, forget it, nobody ever thought about that, I mean, just look at history, y'all States had abortion bans for hundreds of years, so when did the American people make the decision to prohibit a state from adopting such a thing?

They never did it, they never appeared in court, the court made it up and then you know we're not talking about the right or wrong of the substantive outcome. I mean, I'm pretty neutral on that, the point is who should decide whether it's about a question about abortion, if people try to persuade each other that there should be one. It shouldn't be and put it to a vote, okay, you know, if you want the right to abortion, create it the way most rights are created in a democracy, you persuade your fellow citizens to pass a law that you want to abolish. death penalty is the same thing, but all that, the Democratic choice is eliminated when the court can give vague provisions like, uh, due process of law, equal protection of the laws, meanings that they didn't have when they were adopted. how it should be done 2008 case of District of Columbia v.

Heler in which you wrote the decision upholding the individual right of POs to own firearms, a decision spanning over 60 pages of very detailed textual and historical analysis which reads the quote from the Second Amendment law. He did not say that the people will have the right to keep and bear arms, he did not even say that the government will not prevent the people from keeping and bearing arms, but rather that the right of the people to keep and bear arms will not be infringed, this triggered historical investigation then, How does history influence the reading of what surprises a layman like me?

It's a very complicated text, that comma in the introductory clause, well, that passage that you read triggered, I said it triggered uh uh, historical research because, um, the Second Amendment refers to it as Although as if it were a preexisting right, no He said that the people will have the right or even that the government will not remove the weapons, but the right of the people to keep them as if it were a pre-existing right. right and that triggered his historical research which takes him back to the English Bill of Rights which actually contained the right to keep and bear arms as to the prologue, are you going to know what the prologue is?

You know, a well regulated militia is being necessary for the defense of a free state as the right of the people to possess and bare arms should not be infringed uh again if you studied history what is the connection between not taking away weapons? the right of the people of K and the militia seems very A strange but historical investigation shows what the connection is with the way the Catholic Monarchs destroyed the militia, which were supposed to be all male citizens trained for weapons, the way that they destroyed the militia was not abolished, they simply took away the weapons of all those who opposed the Catholic Monarchs and that is why there is a connection, a very royal Ministry being necessary for the defense of a free state, a militia composed of the entire body of citizenship as the right of the people to keep them, weapons will not be infringed, it makes a lot of sense if you understand the history and without history, you wonder what is this guarantee of the state's ability to have a militia, what is in the Bill of Rights?

For God's sake, why do you know why any other part of segment five of the Constitution onwards and then when reading the Act, your views are final? The pros themselves just convey a solid feel, but you include a preview of judge Frank Easterbrook throwing a banana. to peel right in the middle of the argument quoting Frank Easter Brooks forward, the meaning of an expression depends on how the interpretive community alive at the time of adoption understood those words, the older the text, the more distant that interpretive community from ours at some point, the difference becomes so great that the meaning is no longer recoverable. quote close, so the Constitution of the United States slowly fades before our eyes.

Well, I can't disagree. I wouldn't have written that. I don't know why Frank. They were that, but once you invited him to write the trailer you were hooked. Well, yeah, Frank is fine, he knows what he's doing and he's as textualist as I am. What he said there is completely true. That is, when you cannot recover the historical meaning, of course, you cannot do textualism, but that is not the case with respect to the provision of the Constitution that I am talking about, we know what the laws were at the time of the 17, huh. The Bill of Rights was adopted, Ed, in 1791.

We knew what we know, what the laws of the different states were, and those laws didn't change, which shows that these people didn't think the death penalty was prohibited, they actually did. you do. Make a contrary point in Reading Law that when it was first elevated to the high court, amika writings that included historical background were relatively unusual and have now become standard, so it would be almost correct to argue that history is coming more clearly to Focus that fading is fair that's fair I'm just making it up that's fair okay I wouldn't have made the point clear but it's a fair point I mean the story is there or it's not there if like Frank I said that You can no longer recover it yes, you, you, it is an obstacle to giving the text its original meaning.

I guess you have to resort to gee. I don't know what it originally meant, although I'm not sure what you'd do. What I'm saying is, therefore, it means what I think it should mean, but anyway, yes, it is a true statement, but it is not a criticism of proper historical research where history has not been lost and has not been lost forever. Most of these things that Judge Easter Brooks advances here come from his own later quote from Law's reading. Some will argue that a widespread adoption of the techniques we advocate in this book would be turning back the clock, but we do not propose that all the decisions made and the Doctrine adopted in the last half century of unbridled constitutional improvisation should be set aside; we should bow down to the stellar decisions. close quote Mr.

Justice Scalia it's not about turning back time but about restoring the original meaning of the Constitution you put four for 400 pages, you show that you have 400 pages of moart and you end up with two and a half pages of a br, you take it all away , you say it's not so, say it's not so right, then the Council appears before us in the case and and uh, it's arguing that it's about to argue that a statute enacted by Congress is unconstitutional, but before we get into the Council, oh wait, wait, wait, you think we have the power to ignore a statute enacted by Congress simply because, in our opinion, it is unconstitutional?

He says oh yeah, you're in this, you know, Marberry versus Madis, I know, I know Mark, but was that right? Let's reconsider, you can't run a legal system that way, reinvent the wheel every time you have a new case. , you have to accept yourself. know that the water over the dam is uh and that's what the star decides, it's about that, it's a star that decides, in Latin it means water over the dam, that's what in Latin means right, okay, but You then provide these criteria to decide if the Deci Star should rule. and the criteria are as vague as the criteria Judge Posner might impose in reading the search for legislative intent.

Has it been an established law? Have people organized their lives around it? One, the number of items to which this vagueness applies is much smaller than the number of items to which Judge Posner's vagueness applies. I mean, you know the world, the world is your oyster, any statute can be interpreted as doing what you should do uh uh but secondly I don't think those criteria that I laid out there are that vague. I established three um, which I use theNumber one, how wrong was he? Know? Was it blatantly or something? Of them are maliciously wrong, they must have known they were lying on the books for more than half a century before Brown arrived.

Well, that's just one of my questions. Okay, okay, okay, number two. Has it been generally accepted? You know, when I was in law school, the Doctrine of Incorporation was still controversial over whether the 14th Amendment had the effect of applying the Bill of Rights to the states, it didn't usually apply to the states, but it's been accepted for half a century . hundred now and uh, it's not a big deal number three, compare that to Row versus Wade, which was controversial when it was adopted and still is and and apply the first Criterion to Row versus Wade, you know how bad that was, even the people who they like the result recognize that it was a terrible opinion third factor uh and for me the most important one I really can I can I can I can work with this case as a lawyer uh and again the best example is Rover says wait I don't know how to do Rover his wait It's supposed to I must say, does this particular State Statute impose an undue burden on women's constitutional rights?

As? I know if I'm a lawyer. Normally I would go to the law books and see, do you know what a UN is? What do you know? For 200 years no burden was an undue burden. You could ban it. This is a political trial. I mean. You have a statute that requires so many doctors, so many nurses, so much expensive equipment and this increases the price of abortion and the question for my court will be whether this creates an undue burden. Do you know what I'm supposed to do? with that as a lawyer you think we are going to talk about law we are not going to talk about law we are going to say I don't think that is an undo you think it is an undo but how many things how many five hands are four, it is not, I am not going to do that, but you know, those are my three criteria.

I don't think they're very vague at all and, uh, uh, when, when, when I find out that they get crossed out on all of them. three I No, uh, I don't adhere to the previous case. Final question before moving on to audience questions reading Quote from the Law. Originalism does not always provide an easy or even clear answer. Originalism is not perfect, but it is more. surely any other Criterion and it is not too late to restore a strong sense of judicial Fidelity in the text, closed quotes, so here is the question, this book, in fact, his entire career represents a sustained and determined effort of restoration, Are you optimistic, how is the project going?

Come on, that's an unfair question, especially after the last period where I went down in the last six cases announced last period, so I don't know you, I just don't know if I'm an optimist. It's worth fighting, winning. or you lose you meet Frodo in The Lord of the Rings you then you sold your look the problem is that the other approach is enormously seductive even for the average citizen it is seductive to think that the constitution means what it should mean is a living Constitution, whatever that I care passionately about is there in the Constitution, you know, people used to say that when they don't like something that's happening, they say there should be a law, there used to be a comic strip that I know there should be a law about people. that plays stereos in the park and stuff like that, people don't say that anymore, they say it's unconstitutional if they really feel passionately about it, and it's even more seductive to judges, it's a wonderful thing to have a constitutional case and you're always happy with the result because it means exactly what you think it should mean.

Let me ask you the last question in a slightly different way, but it's the same question I was talking to a friend about. here at Stanford Law School, who said that when Scalia was nominated to the Supreme Court in 1986 at the Law Academy of prestigious law schools, originalism was considered dead and gone and now, if you don't have some pretty good originalists in your college, in your law school should not be taken seriously and that is overwhelmingly a man's job now I say you give me hope you give me hope Peter stay with me stay stay in my chambers okay we have some questions we have some questions from the audience We have made some progress.

I will say that we are a Federalist Society that sponsors this event. There were no questions from the audience. Is there a negative effect on the judiciary due to the modern confirmation process? You were confirmed. 98 to close those days are over, right? I think they're over. My explanation for why they ran out is that I told you that all of this really starts with a court order or at least that's when this living Constitution. philosophy takes over and I think it took the American people a while to realize what was going on, maybe 30 years, but once they realized that the Supreme Court is essentially rewriting the Constitution term by term, the old criteria for appointing and confirmation judges no longer apply.

I mean, it's okay to get someone who is a good lawyer, who is very kind and someone with a wonderful judicial disposition, you know someone who, you know, is an honest man, etc., that's all very good, but hills. The important thing is what kind of new constitution this person will write, put in the things I like and take away the things I don't like, and that's what's been happening at least in the last few confirmation processes. where where where where the Senate does not have overwhelming control, you know, filibuster-proof control of one party, you know, Judge so-and-so, do you believe that there is a right to whatever abortion is, whatever whether you have or love yourself?

Well, I think it's there and my constituents think it's there and I'm not going to put you on the Supreme Court, that's what's happening and it should continue because I hate that process. I prefer the alternative which is simply to let the Supreme Court, without any political control, rewrite the Constitution term by term. If they are going to do it, I would like some popular control, even if it is in this Byzantine way, that amounts to a mini Constitutional Convention every time we appoint. a new judge so the corruption of the process comes from the high court not the Senate Judiciary Committee yes they are doing what they would be expected to do and what I say they should do if that is what the Supreme Court is doing that's what the Senate should be doing, since I don't like the whole thing, how much of the current Constitution is due to Congress's irresponsible unwillingness to get the tough issues right.

I don't think that's a good excuse, oh, Congress has done it. He hasn't done it so we should do it. Where do you get that from any of that? Zero don't blame Congress. It is not the job of judges to do those things that the representatives of the people have. because for some reason we decided not to do it even when we had it like we had it even when they weren't fake even when we had it like we had it a couple of years ago a sitting Speaker of the House referring to a document from 2000 and some pages I'll have to go through this to find out what's in it yeah I don't think it's up to the court well you're not a safety net oh god certainly not does natural law have a place in interpreting the Constitution? look at him he says what he says I apply the law of the United States I do not apply natural law God applies natural law the the the only now natural law has a place in the written law when you are writing a constitution or when you are writing a statute You shouldn't say that anything you know or believe is contrary to natural law, but once it's there it says what it says and if it forces me to do something that goes against my conscience, of course, I have to give up the law. post. bank, but the mere fact that it doesn't conform to natural law, but it doesn't make me do anything wrong, that's no basis for saying oh, the statute doesn't conform to natural law, so I'll apply natural law no. that is the only role that natural law has under the Constitution.

Did you mention that you mentioned the 9th amendment in one of your previous questions? I did it, I did it well. Judge Blackman mentioned it, yes, Judge Blackman got it right. You know, that's the amendment, the enumeration says. here of certain rights will not be considered to deny or belittle other rights that are retained by the people and the Academy in recent years, having finally given in to the reality that the substantive due process that has been the basis of Fila versus peso and many of the living Constitution is nonsense, uh, having finally admitted that that doesn't make any sense, they are looking for other ways to get there and one of the ways is the Ninth Amendment, which is a source of unenumerated rights, is not a source of unenumerated rights I apply the ninth amendment I apply it rigorously I do not deny or disparage other rights maybe there is a right to abortion that is not my line of territory uh, you are free to argue before the legislation that there is, but I know that it is not is one of the rights contained in the Bill of Rights and therefore is not one of the rights that I enforce, what the 9th amendment was was the expression of the framer's belief in natural law, just because we have some rights here.

It doesn't mean there aren't others and if you try to take them away we'll go back to the barricades. That is what it means that the procedure and evidence once the purview of precedent jurisprudence, the common law, more recently have been codified question: would it make sense to codify the federal rules of statutory interpretation? Should we take the reading of the law and turn it into statute? I wouldn't want to do that because I hate to think that it's up to Congress to tell us how to decide cases. I mean, suppose they decide to say that you will not use logic or suppose they say that you will seek to achieve the purpose that Congress had in mind no, no, I am a judge, we are our own branch and our responsibility is precisely to decide how to interpret the statutes and I I'm not in favor of having that written into a statute last question, uh, appropriate question for Silicon Valley, we would ignore it anyway, you know, you know, I have to.

I know some of the students here at Stanford Law School who are in this hearing and they spend three years cowering before the faculty and I've seen Smiles break out several times and I know exactly why because time and time again you've given these people the palm of your hand, it is comforting to my young friends if the The text of the first amendment refers only to speech and the press. You have explained that this is not the case, but how can you extend it to cover the Internet without causing all kinds of problems? Internet. I told him that it does not refer only to expression and the press. means expression, the Internet is a form of expression, the notion that an originalist cannot handle these new phenomena, radio, television, cameras, of course, you imagine the need to take the principles that you have applied to face... face to face speech face and applied it to any new phenomenon that arises that is not like that, it is not the living Constitution that is simply applying the principles to new phenomena where where the shoe tightens is where you are dealing with phenomena that did exist at that time the penalty of death abortion homosexual sodomy to treat them differently today than the way they were treated before that's a different question and that's basically what the principle of originalism puts against you uh like the phenomena that existed in the moment when the American people took from the democratic process only what they understood they were taking from it and nothing more anonymous Scalia associate

justice

of the Supreme Court and yes, I talked about Brian, my co-author and the co-author with Brian Brian is a great man, he's America's foremost philologist, editor of Blacks Law Dictionary and parts of the book are identifiable as Brian Garner, for God's sake there's a whole appendix on the use of dictionaries that you don't think you don't think I wrote that and there it says one of the things you should know.

I did not know that. He said one of the things you should know about dictionaries is what is the principle on which uh. they decide what order to put their definitions in and he quotes an opinion from my good friend and colleague Steve Brier who made a mistake because he used the Oxford and English dictionary, he used the first meaning as the most common meaning and that is not the system that uses the Oxford English Dictionary puts the oldest meaning first and then moves on to the new one. I would have made the same mistake to tell you the truth, but that's all Brian, he's very helpful, he also has uh, you know what? they are the definitive dictionaries of each era because you want to use a dictionary from the era, you don't want to use today's meaning, you know, for the 18th century and he's good at all that, okay, let me show this to the camera. more time Brian Garner down at the bottom Brian Garner down at the bottom and sitting next to me Associate Justice on the Supreme Court and co-author with Brian Gardner of the reading Law anonin Scalia thank you very much Mr.

Justice Scalia thank you Peter thank you