| 00:00:00 | WRITTEN AND THE INTENT OF THE FRAMERS? |
| 00:00:06 | YOU HAVE BEEN CRITICAL OF THE PHRASE "A LIVING CONSTITUTION" AS RECENTLY AS YESTERDAY. |
| 00:00:16 | YOU EXPRESSED THE DESIRE TO SEE THE CONCEPT OF A LIVING CONSTITUTION DIE. |
| 00:00:22 | HOW YOU DIFFERENTIATE BETWEEN LOOKING TO THE INTENT OF THE FRAMERS AS TO THE MEANING OF THE CONSTITUTION AND THE PRESENT DAY? |
| 00:00:32 | >> I DON'T LOOK TO THE INTENT OF THE FRAMERS. |
| 00:00:33 | I DON'T CARE IF THEY HAD SOME SECRET INTENT. |
| 00:00:37 | ONCE AGAIN, I LOOK TO THE WORDS OF THE CONSTITUTION. |
| 00:00:41 | BUT ASK, WHY DID THOSE WORDS MEAN TO THE SOCIETY THAT ADOPTED THEM? |
| 00:00:46 | SO I WILL USE THE FEDERALIST PAPERS, THE WRITINGS OF MADISON, HAMILTON, AND J. |
| 00:00:57 | AY, BUT I WILL NOT USE IT BECAUSE THEY WERE THE DRAFTERS OF THE CONSTITUTION. |
| 00:01:00 | THOSE PAPERS TO SHOW WHAT THOSE WORDS MEANT TO THE SOCIETY THAT ADOPTED. |
| 00:01:06 | THAT IS THE SAME THING I DO WITH LEGISLATION. |
| 00:01:09 | WHAT DO THOSE WORDS MEAN? |
| 00:01:11 | WHAT IS THE FAIR UNDERSTANDING OF THEM? |
| 00:01:14 | ONCE I FIND THAT, THAT IS MY ANSWER, AND THAT UNDERSTANDING DOES NOT CHANGE. |
| 00:01:20 | FOR EXAMPLE, WHETHER THE DEATH PENALTY IS PROSCRIBED BY THE EIGHTH AMENDMENT, WHICH PROHIBITS CRUEL AND UNUSUAL PUNISHMENT. |
| 00:01:31 | THE DEATH PENALTY MAY BE A VERY BAD IDEA, BUT NO AMERICAN EVER VOTED TO ADOPT A CONSTITUTIONAL PROVISION THAT ELIMINATED IT, THAT ELIMINATED THAT AS AN OPTION. |
| 00:01:48 | THE LIVING CONSTITUTIONALISTS WILL SAY TIMES HAVE CHANGED AND IT IS UP TO MEET TO DECIDE WHAT IS CRUEL AND UNUSUAL PUNISHMENT. |
| 00:01:55 | THAT IS A CONSTITUTION AND HAS NO BITE IF THE CONSTITUTION MEANS WHATEVER WE WOULD LIKE TO MEAN TODAY. |
| 00:02:02 | WHY HAVE A CONSTITUTION? |
| 00:02:05 | YOU DON'T NEED A CONSTITUTION FOR THAT. |
| 00:02:07 | ALL YOU NEED IS A LEGISLATURE. |
| 00:02:09 | THEY WILL EXPRESS THE CURRENT ATTITUDE OF SOCIETY MUCH BETTER THAN MY COURT WILL. |
| 00:02:14 | WE DON'T KNOW WHAT IS GOING ON OUT THERE. |
| 00:02:22 | [LAUGHTER] >> IT IS TEMPTING TO APPLY CERTAIN CLAUSES OF THE CONSTITUTION TO NEW TECHNOLOGIES. |
| 00:02:31 | YOU HAVE DESCRIBED IT AS FALLING TO THE TRAJECTORY OF THE RIDING OF THE CONSTITUTION. |
| 00:02:36 | HOW DO YOU DIFFER -- THAT FROM A LIVING CONSTITUTION, OR ONE THAT IS ADAPTABLE -- HOW DO YOU DIFFERENTIATE THAT FROM A LIVING CONSTITUTION? |
| 00:02:47 | >> AN ENDURING CONSTITUTION, WHICH IS WHAT I FAVOR, IS NOT ONE THAT CANNOT BE APPLIED TO NEW SITUATIONS. |
| 00:02:54 | OF COURSE IT CAN. |
| 00:02:55 | YOU APPLY THE FIRST AMENDMENT TO RADIO, BUT WHAT YOU ASK IS, WHAT DID THE FIRST AMENDMENT MEAN AS APPLIED TO THESE OTHER PHENOMENON? |
| 00:03:04 | THEN YOU SAY, WHAT OUGHT IT TO MEAN, GIVEN THAT AS THE BASELINE, AS APPLIED TO RADIO? |
| 00:03:13 | WHEREAS THE LIVING CONSTITUTIONALIST WILL SIMPLY SAY, YOU KNOW, WHAT IS A GOOD IDEA TODAY? |
| 00:03:19 | WHAT WOULD THE AMERICAN PEOPLE LIKE TODAY? |
| 00:03:25 | I PROBABLY SHOULD NOT USE THIS EXAMPLE IN THIS PLACE, BUT "NEW YORK TIMES" VERSUS SULLIVAN, THE FAMOUS CASE THAT HELD THAT YOU CAN LIBEL PUBLIC FIGURES WITHOUT LIABILITY, SO LONG AS YOU ARE RELYING ON A STATEMENT FROM SOME RELIABLE SOURCE, WHETHER IT IS TRUE OR NOT. |
| 00:03:49 | THE OLD LIBEL LAW USED TO BE, YOU ARE RESPONSIBLE. |
| 00:03:53 | YOU SAY SOMETHING FALSE THAT HARM SOMEBODY'S REPUTATION, WE DON'T CARE IF IT WAS TOLD YOU BUY NINE BISHOPS, YOU ARE LIABLE. |
| 00:04:05 | "NEW YORK TIMES" VERSUS SULLIVAN JUST CAST THAT ASIDE, BECAUSE IN MODERN SOCIETY, -- IT MAY BE CORRECT, THAT MAY BE RIGHT, BUT IF IT WAS RIGHT, IT SHOULD HAVE BEEN ADOPTED BY THE PEOPLE. |
| 00:04:21 | IT SHOULD HAVE BEEN DEBATED IN THE NEW YORK LEGISLATURE, AND THE NEW YORK LEGISLATURE COULD HAVE SAID YES, WE ARE GOING TO CHANGE OUR LIBEL LAW. |
| 00:04:30 | BUT THE LIVING CONSTITUTIONALISTS ON THE SUPREME COURT SAID IT USED TO BE THAT GEORGE WASHINGTON COULD SUE SOMEBODY THAT LIBELED HIM, BUT WE DON'T THINK THAT IS A GOOD IDEA ANYMORE. |
| 00:04:42 | SO THAT IS THE DIFFERENCE BETWEEN MY APPROACH AND A LIVING CONSTITUTION APPROACH. |
| 00:04:48 | I WILL BE GUIDED AS TO WHAT THE CONSTITUTION MEANS TODAY BY WHAT IT MEANT WHEN IT WAS ADOPTED. |
| 00:04:53 | THE LIVING CONSTITUTIONALIST FEELS FREE TO SAY IT IS A NEW DAY, AND WE CAN HAVE NEW RULES. |
| 00:05:04 | >> WE HAVE HEARD IN THIS FORUM -- >> I FEEL BAD ABOUT USING THAT EXAMPLE. |
| 00:05:14 | >> WE HAVE HEARD OVER THE PAST DAY AND AGAIN THIS MORNING A PHRASE THAT HAS BECOME POPULAR AMONG POLITICAL OBSERVERS IN THE CURRENT POLITICAL CLIMATE THAT WASHINGTON HAS BECOME DYSFUNCTIONAL, AND BY THAT I THINK THERE ARE REFERRING IS GENERALLY TO THE MORE POLITICAL BRANCHES, THE LEGISLATURE AND EXECUTIVE. |
| 00:05:40 | IN MY EXPERIENCE WITHIN THE JUDICIAL BRANCH, I HAVE REALLY NEVER HEARD THE JUDICIARY DESCRIBED AS DYSFUNCTIONAL. |
| 00:05:49 | IT WORKS WELL. |
| 00:05:55 | SURLIEST THERE ARE AN ABUNDANCE OF CASES AND SOME COURTS ARE VERY MUCH OVERWORKED AND WE NEED ADDITIONAL RESOURCES FROM CONGRESS IN THAT REGARD, BUT THERE IS AN UNDERLYING STABILITY IN THE COURT SYSTEM -- UNDERLYING CIVILITY IN THE COURT SYSTEM. |
| 00:06:15 | DO YOU AGREE WITH THAT OBSERVATION, AND IF SO, IS THERE ANYTHING THAT CAN BE TAKEN FROM THAT BY THE OTHER BRANCHES IN PERHAPS LOWERING THE TEMPERATURE OF THE DISCOURSE IN THE COUNTRY AT THE MOMENT? |
| 00:06:33 | >> YOU MENTIONED MY REMARKS YESTERDAY. |
| 00:06:37 | JUST THIS WRITER AND I SPOKE TO THE SENATE JUDICIARY COMMITTEE -- JUSTICE PRIORBRYER AND I SPOKE TO THE SENATE JUDICIARY COMMITTEE. |
| 00:06:52 | WHEN EXACTLY MAKES AMERICA THE FREEST COUNTRY IN THE WORLD? |
| 00:06:55 | I POINTED OUT THAT MOST PEOPLE THINK IT IS THE BILL OF RIGHTS. |
| 00:07:00 | IT IS NOT THE BILL OF RIGHTS. |
| 00:07:03 | EVERYBODY HAS A BILL OF RIGHTS AND THE MODERN WORLD. |
| 00:07:06 | THAT IS NOT WHAT DOES IT. |
| 00:07:07 | WHAT DOES IT IS WHAT I CALL THE REAL CONSTITUTION, IF YOU THINK ABOUT THE WORD CONSTITUTION. |
| 00:07:14 | IT DOES NOT MEAN THE BILL OF RIGHTS. |
| 00:07:17 | INSTRUCTOR. THE REASON THE BILL OF RIGHTS OF THESE OTHER COUNTRIES -- THE SOVIET UNION HAD A WONDERFUL BILL OF RIGHTS. |
| 00:07:23 | IT WAS WORTHLESS, BECAUSE THE REAL CONSTITUTION OF THE SOVIET UNION DID NOT FORBID CENTRALIZATION OF POWER IN ONE PERSON OR IN ONE PARTY. |
| 00:07:36 | WHEN YOU HAVE THAT CENTRALIZATION, THE BILL OF RIGHTS CAN BE DISREGARDED OR IGNORED. |
| 00:07:43 | IT IS JUST WORDS ON PAPER. WHAT MAKES US DIFFERENT IS THAT WE HAVE A STRUCTURE THAT DECENTRALIZES. |
| 00:07:49 | IT PITS AMBITION AGAINST AMBITION. |
| 00:07:53 | WHAT ARE THE CONSEQUENCES OF THAT? |
| 00:07:55 | SOMETIMES THEY DO NOT AGREE. |
| 00:07:58 | YOU HAVE DIFFERENT CENTERS OF POWER, BUT MOST NATIONS OF THE WORLD DON'T HAVE THAT. |
| 00:08:04 | MOST NATIONS DON'T HAVE A GENUINE, BICAMERAL LEGISLATION. |
| 00:08:07 | MOST NATIONS DO NOT HAVE A SEPARATELY ELECTED CHIEF EXECUTIVE. |
| 00:08:11 | WHEN I GO TO EUROPE TO TALK ABOUT SEPARATION OF POWERS, I END UP TALKING ABOUT AN INDEPENDENT JUDICIARY, BECAUSE THE EUROPEANS DON'T TRY TO SEPARATE THE TWO POLITICAL POWERS, THE LEGISLATURE AND THE EXECUTIVE. |
| 00:08:26 | THE CHIEF EXECUTIVE IS A PREACHER OF THE LEGISLATURE. |
| 00:08:30 | WHEN YOU HAVE OUR SYSTEM THAT DISBURSES POWER, YOU HAVE TO MATCH HOUSES OF CONGRESS THAT SOMETIMES DISAGREE -- TWO HOUSES OF CONGRESS THAT DISAGREE. |
| 00:08:45 | THAT IS WHAT HAS SAVED US. |
| 00:08:48 | IT IS PRECISELY THE DIFFICULTY OF ENACTING LEGISLATION THAT THE FRAMERS THOUGHT WOULD BE THE PRINCIPAL PROTECTION FOR MINORITIES. |
| 00:08:57 | IF THIS LEGISLATION IS REALLY GOING TO COME DOWN ON YOUR MINORITY, IT DOES NOT TAKE MUCH TO THROW A MONKEY WRENCH INTO THE SYSTEM. |
| 00:09:07 | A GUEST THERE IS SUCH A THING AS GOING TOO FAR, BUT I AM NOT ONE OF THOSE WHO OUT OF THE BOX COMPLAINS ABOUT GRIDLOCK. |
| 00:09:15 | GRIDLOCK IS WHAT OUR SYSTEM WAS DESIGNED FOR. |
| 00:09:19 | HE SAID PEOPLE DON'T COMPLAIN ABOUT GRIDLOCK IN THE SUPREME COURT. |
| 00:09:24 | THAT MAY BE BECAUSE WE HAVE TO ACT. |
| 00:09:27 | WE CANNOT JUST SAY WE HAVE NOT DECIDED ABOUT THIS CASE, SO GO AWAY. |
| 00:09:35 | SOONER OR LATER, WE HAVE TO VOTE, AND THERE IT IS. |
| 00:09:39 | CONGRESS DOES NOT HAVE TO DO THAT. |
| 00:09:43 | I THINK THAT IS THE PRINCIPAL REASON PEOPLE DON'T ACCUSE US OF GRIDLOCK. |
| 00:09:48 | THEY ACCUSE US OF A LOT OF OTHER STUFF, BUT WE DECIDE CASES. |
| 00:09:53 | >> JUSTICE SCALIA, THIS HAS BEEN A DELIGHTFUL MORNING WITH YOU. |
| 00:09:57 | I KNOW YOU ARE BEGINNING THE NEW TERM AND I KNOW HOW BUSY YOU ARE. |
| 00:10:01 | I REGRET WE |
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