Scalia & Breyer: Constitutional Interpretation Debate

[00:00:03]from the leo rich theater in tucson arizona the rehnquist center of the james e rogers college of law at the University of Arizona is pleased to present principles of constitutional and statutory interpretation featuring United States Supreme Court justices Antonin Scalia and Stephen G Breyer and now your host for this conversation NBC News justice correspondent Pete Williams welcome to this program sponsored by the William H Rehnquist Center on the constitutional structures of government at the University of Arizona's James E Rogers College of Law and Tucson I'm Pete Williams from NBC and it's my privilege to cover the US Supreme Court two of its members today will offer insights into how they do their jobs and I really think that's something it's it's extraordinary because presidents talk about what laws should be passed and members of Congress talk about how they voted why they voted for or against something but very seldom if ever do they talk about the principles that guide them in their jobs the thinking behind what they do but two members of the US Supreme Court do explain how they approach their work there but they have both written and spoken about what guides them in interpreting the US Constitution and that the laws that they're called upon to review and we'll hear from them about their judicial philosophy so won't you welcome please justices Antonin Scalia and Stephen Breyer let me ask you both at the outset we're here to talk about judicial philosophies but why should a Supreme Court justice or indeed any judge have a judicial philosophy why don't you just call them as you see them Justice Scalia how you see them depends on what your judicial philosophy is I mean there there has to be a consistency to your application of the law you you believe in certain principles of construction you cannot alter those principles of construction when you have a plaintiff whom you like and and therefore apply a different principle so that that person will win I mean that's the that's the height of what you unjú dish' sness it's it's the height of randomness no I mean you you have to be consistent that's I mean the main thing for a judge so just as Breyer it's not as simple as that there are rules the judges follow and you you run the case but you're you're trying to interpret through that set of rules and you come out with the right answer no it isn't that simple I would have started when I was on the court of appeal of appeal saying what you just said I would have said well the objection to so-and-so he's not what his philosophy is but he has won so just take a case by case but overtime is a big difference between I think being on our court and being on a court of appeals is that we have as a steady diet cases involving the Constitution of the United States and so after a period of time a number of years you begin to see the document as a whole and then you wonder with that experience just what Justice Scalia says am I being consistent oh I'm not being consistent then there's nothing to prevent me from just doing what I want and everybody will have something different than he wants and there will be chaos so is there a consistent pattern here you begin to see things as a whole are you being the same as your in this case in the last one and then looking back I think you find yes there are certain principles or certain approaches or certain ways that a judge will have of approaching similar problems and I would I think it's fair to call that a judicial philosophy in robes coming off the bench and one is saying to the other yes I like to do justice in the case but what I really get a kick out of is taking the law into my own hands well let's talk about a specific here to see how your philosophies actually work the court divided four years ago when it ruled that the death penalty for juvenile offenders was unconstitutional this is for people who commit crimes before the age of 18 Justice Scalia why do you think it was wrong for the court to conclude that that practice violated the constitutional ban on cruel and unusual punishment because I think what the ban meant in 1791 when it was adopted it means today and for example year why not say the death penalty is unconstitutional as applied to everybody not just people under 18 what stops you from saying that and indeed I've sat with four colleagues who said that what stops you from and that would just be applying your own your own sense of what what the law ought to be rather than what the law is what stops you from saying that is in 1791 when the eighth amendment was adopted the death penalty was the only penalty for a felony there's no argument possible that it was unconstitutional and it was the same for executing people under 18 there was a common law rule that you that you you would not exercise and execute someone for crimes committed before the age of reason I think the age was 12 but after that there was no prohibition it was rarely done but it was left up to the jury and where the sentencing authority was usually the jury so you know it may be a very bad idea and nothing forces the American people to execute people who've committed the most horrible crimes before they're 18 years old nothing I think requires them to do that if they if they think it's a bad idea they can pass a law in their state which says no one will be executed for anything done under 18 but for this court to my court to just say it doesn't seem to us a good idea and therefore it's unconstitutional I just don't understand it explain it though two points for I agree first it's a good question and you don't know how good it is because unfortunately I have to tell you we agree about 40% of the top most of our court is in agreement almost most of the time unanimous unanimous and if you look at the 6-3 72 you don't get way up there until you're about 20 or 25 percent where we're divided in 5/4 and it's not always the same five in the same for either so you're reading the paper as if we're disagreeing about everything no just the interesting stuff now he picked the point hey that's right he picked the point which will be of general interest and it will involve a phrase in the Constitution cruel and unusual punishment which doesn't totally explain itself nor does the word deprivation of Liberty Liberty without due process of law that word Liberty or even though freedom of speech they don't explain exactly where they belong so now he and I will also agree let's go back and see what was intended come on I wouldn't see what was intended what I see is not particular conditions at the time maybe they thought that flogging was fine these two flogged people on ships I don't know the exact details of what everybody in the 18th century thought was cruel and unusual but they didn't enact they enacted into law cruel and unusual punishment which meant a set of values not a specific set of eighteenth-century circumstances so for me the question would be how do those values that they enacted them apply to our circumstances today now I think most people I don't really get everybody but I think you get a pretty broad consensus that you should not execute people for robbery today or for theft or for all felonies nor do I think everybody today would say it's fine to execute a thirteen-year-old so when we look around the world and look around the United States and we see there's hardly anybody that executes a child even one over 12 the question becomes well where do we draw the line today not where they drew the line in the 18th century but where do we draw the line today in terms of the values but they enacted into that Constitution in the 18th century and I'll tell you that becomes a difficult question should it be 18 17 16 15 I don't think anybody's gonna go down to 12 but how to do that and figure it out and try to do it in a way that has some objective appeal and not just what I subjectively feel that's why the job is a difficult job as a job is a difficult job for judges but that's the point of disagreement I think how you do that in a particular case what circumstances have changed death was death then death is death now 18 was 18 then 18 is 18 now you're talking about applying different values I agree with you that they were enacting a value judgment but it was a value judgment of that time you do not have to adhere to that value judgment if indeed you think you shouldn't execute people under 18 fine pass a law but once you abandon what they meant by core alone punishment and say oh yeah even though they didn't they could covered that pebble we think it does you are at sea and it is as you say a difficult job Steve I don't know how you do it I'm just glad that I don't play that game [Applause] are you going to get to cue people for embezzlement are you going to execute them I mean you won't for parking tickets you make the example the less likely it is to occur I would like to give people for embezzlement but but but it's but it's not unconstitutional what about practices that were followed at the time of the founding ear notching the pillory if if cases like that arose would you find likely that they're constantly playing their constitutional on stupid listen a lot of stuff that is constitutional and an enormous amount of stuff that's constitutional is stupid that that cannot be the test no they're really stupid the word in the Constitution is cruel and the word is unusual it's possible that over time people have a different idea of what's cruel that doesn't mean that that thing isn't cruel because somebody in the eighteenth century thought it was they say you see it may be cruel but he doesn't change it to me he he talks as though as though it's a one-way a one-way street you know we get more gentle overage not more cruel but it's not a one-way street if you think cruel is whatever you think is cool not what the founders thought was cool what if what if you begin to think that things aren't cruel that they thought were cruel you know they thought thumbscrews were bad but you know nowadays what the heck we have a more violent society as some students aren't so bad but is that all that the Eighth Amendment means to thine own self be true don't do anything that you think is cruel we had our own notions of we don't want to bind you to our notions of cruel that can't be what it meant it was obviously meant to to set a standard and once you agree to that it sets a standard in both directions whatever they permitted is permitted and whatever they for bad is forbidden what you abandon that urine see well of course the phrase and the philosophy that was behind the court's decision in that case was that it was cruel and unusual based on evolving standards of decency now Justice Scalia has just said that the evolution always goes in one direction is that fair no I said it doesn't that my port was just the opposite I think it's his assumption that it's a one-way street it is not it goes both ways well that isn't something I've actually had to face in a case I mean it is true if you look at the seventeenth century and how people treated each other during the religious wars it was pretty unspeakable and think oh yeah we've been to Europe and visited some of the torture chambers and that was fairly common practice now it is true but today we would call that kind of practice barbaric and we would think it's just awful and cruel is the mildest word that we would use to describe it now I haven't seen instances where we've gone the other way if in fact we have a situation where the majority from the American people want to go back to something like that and pass the laws for it then I'll face that at the time yeah of course the issue doesn't just arise with the Eighth Amendment it may well be that society is you know is in no respects more cruel than it was back then but it applies to other provisions of the Bill of Rights as well for example some of the provisions according trial rights to defendants many people today don't think that these provisions are as important as the framers did such as the right to trial by jury Britain has abolished it for minor crimes even and for all civil matters now the Constitution guarantees it for all civil matters at common law exceeding $20 the Constitution assures criminal defendants for example that they have the right to confront witnesses against them and it's clear what confronting means the witness has to come to court and testify now there are some people who think oh yeah it's up just a lot of trouble I mean Europeans never did it that way and there's some people today you think we shouldn't do that do it that way and that's been one of the issue before issues before our court and if you believe in an evolving Constitution you would eliminate the right of confrontation which my court did for about a period of 25 years we essentially said you don't have to come into court to testify the prosecution can introduce hearsay so long as it's reliable hearsay just this would be in matters for example involving expert analysis of the crime lab technician it would include that but but but even in other matters as to whether whether a particular person was the shooter in a crime if you have a witness who says who is no longer available but the witness told somebody that this person was the shooter had comment you know under the Constitution you can't you can't let the person come in and testify that way because it's hearsay and you have no opportunity to cross-examine the person who told them but if you eliminate that right as we did in a case called United Roberts versus Ohio we held that all that's necessary as you show that the hearsay is reliable and it can come in it's a two-way street don't think that you're just going to acquire more liberties and and more what more lack of cruelty and all things you know good and beautiful it it goes both ways the only thing you can be sure of is that the Constitution will mean whatever the American people want it to mean today and that's not what a Constitution is for if you want it if you want the law to be what you would like it to be you don't need a Constitution you just need a legislature the whole purpose of a constitution is to constrain the desires of the of the current society solloway it's a good exam that Justice Scalia brings up but I don't think it is an example of evolving anything I think it is an example in my mind for better for worse of why a historical method doesn't work and the reason that I think that is the following we were together on a case involving what does it mean when it says in the conference in the Constitution you have a right in court to confront the witnesses against and we agree with this we said one thing it must prohibit it must prohibit like happened to Sir Walter Raleigh I think that was the one where they said they brought all the witnesses into a separate room approximately they get all the statements then they send the witnesses away to France or someplace and then they introduce the statements so poor Sir Walter has left they're not being able to cross-examine anybody that's overstatement if you get the point all right so now we agree on he lost his head a lot of people got upset but that's alright now we can do that because we both look to the history of it there and we said what's this clause basically about and I'll do that and he'll do that now the next case comes up and this is the next case do you apply the same rule when a victim of a crime gave a statement to a policeman and the defendant is on trial for murdering the victim now can you keep that statement out where say it was a wife I think and she says well he's about to kill me yeah or whatever if she told the policeman he's done it before etcetera you keep that out he's accused of having successfully carried out what he threatened to do so I said well I think there's an exception there but you don't keep it out when you're on trial for murdering the victim so he looked up the history of it and he goes into the history of it and comes to the conclusion you keep that out too and I look at the history of it and to be honest all words look at the history of it and we got everybody looking at the history of and before you know it I reach the following conclusion and I know this is a very namby can be conclusion and it's just so unsatisfactory but when I look at that history and say what did they really intend to do then about that I haven't a clue so and I don't think he has that much of a clue you may think he has a clue I don't so so so anyway what do i how do I solve that games I try to solve it by looking to what the purposes of this confrontation Clause work what's the value that it embodies what general idea did they have in mind not specifically what happened and then try to apply that as best I can to the circumstances of the case if you didn't do that if you didn't take that approach where would you be with school desegregation for example because it's certainly clear then at the time they pass the 14th amendment which says people should be treated equally there was school desegregation and they didn't think they were there was segregation and they didn't think they were ending it but that isn't a tough problem for me to solve conceptually because I said when the people of the United States passed that 14th amendment they were trying to create circumstances of equality where people would be brought into this society who had been former slaves that was their object and if they ever should have they should never have tried it but they tried this separative eke an evil thing and it didn't work so they had led to total segregation so the basic value underlying the 14th amendment is a value that says no segregated schools and if that wasn't clear in 1880 it was certainly clear by 1954 and so the court follows that they don't follow the details of what the people think it applies to in respect to this house or that house or some other physical thing in their society they follow the value those people wrote are trying to attack well that's a piece of cake a piece of cake following the valley you look Justice Breyer makes two points one that sometimes in is difficult to find out just what the understand of a generalized provision such as equal protection or calling usual punishments what it was at the time it is indeed difficult sometimes and people can honestly disagree I don't pretend that my approach originalism has all the answers something it's a heart I know what I'm looking for sometimes it's hard to find it sometimes maybe you can't find it but I don't have to prove that my approach is perfect a my approach by the way is the traditional approach this stuff begins with a warrant court you know let's we have an evolving Constitution Marshall is wearing [Laughter] we didn't last 200 years doing this stuff I don't have all the answers but by George I have a lot of answers especially in the most controversial areas right to abortion come on it was nobody thought it final even anything the Constitution for 200 years it was criminal homosexual sodomy the same thing now they may be bad ideas to prohibit these but don't tell me it's unconstitutional I have a lot of answers what answers doesn't does the other approach provide there are no answers I mean he said Oh equal protection oh we know there's it's inclusion right it's a broad while flying does does it include same-sex marriage does it include a requirement for equal pay for equal work to women all sorts of questions how do you decide these you know how you decide you close your eyes and decide what you think is a good idea and that is the problem with the evolutionary approach there are no answers zero answers now as for as for Brown versus Board of Education I think I wouldn't be but you know justice Harlan in Plessy versus Ferguson which is the case that Brown overruled came out on the other side and I would have been with him as an originalist because you have you begin with the text and it was a text that prohibited racial discrimination and although some states continued to have schools like that some abolished segregated schools after it was passed but but regardless don't make up your mind on this on this significant question between originalism and playing it by ear on the basis of whether now and then the latter approach might give you a result you like I'll stipulate ok I will stipulate that in will I mean you know Kings can do some stuff I did good stuff that a Democratic Society could never do Hitler developed a wonderful automobile what does that prove I'll stipulate that you can reach some results you like with the other system but that's not the test the test is over the long run doesn't doesn't require the society to adhere to those principles contained in the Constitution or does it lead to a society that is essentially governed by nine justices version of what equal protection ought to mean what cruel and unusual punishment ought to mean whether it ought to be 18 or 16 before you can execute incidentally speaking of the evolving Constitution only how many years ten years before the case that held you couldn't execute anybody on their 18th for a crime under 18 we had held that you couldn't execute anybody for a crime committed under 16 and in 10 years we evolved two years higher I mean you know the next time it'll be 21 and we'll all look at the ceiling and say yeah 21 I don't know 18 16 21 there are no answers once you abandon the original understanding of the text you can usually find out what that was once you abandon that there is no other criteria what if you can't find out what the original meaning of the text was and I think here about the Second Amendment case just a couple of years ago where the court for the first time in American history explained what the Second Amendment right to keep and bear arms means there was a lot of problem trying to figure out what the founders meant whether it was an individual or group or militia right is it appropriate in those cases to look at Justice Breyer says the underlying value what the founders had in mind there what they were trying to accomplish as a sort of tiebreaker what both I mean what was at issue in that case was precisely what that under up but that underlying value was was it the right of self-defense wasn't the right of every every person to have firearms for self-defense or was it rather just the right of people to join a militia that was the whole how do you decide that question wasn't that that was not a hard question go go read the opinions not even close not even close I know that no they know common to one commentator during the entire 19th century thought that the Second Amendment only meant that the preserved nothing but the right to join a militia one commentator and he acknowledged that he was the only one and that his view was crying in the wilderness that everybody else came up the other way it was that's a bad example if you want to talk about a case where it's difficult to find out what the answer was I don't think I assume you agree with his point but not his the worry comes out that's Winans he's right about saying that that was a case we had to work out what the fundamental value was so insofar as he's trying to work out what he thinks this is basically there to protect the Second Amendment and insofar as I'm trying to work it out I think we're both asking the right question insofar as he wants to apply it by looking to how people might have applied it at that particular time you know they didn't apply it at that particular time to stop bazookas because they didn't have the Zipit and they didn't apply it at that particular time to fight stop something rather I mean you don't look to the details you look to the value in that case was a basic disagreement about what that value was the descendant the dichotomy by the way is not in my mind the dichotomy in the outlook he won't Justice Scalia won't agree with this but my belief is it's a matter of degree it's not a matter of kind it's a matter of degree as to how much weight you put on the basic value as opposed to looking into the detail how much weight you put on the basic purposes or values as opposed to the test everybody looks at both now of course I think you can't take an extreme position on that get the law school one of the first sort of philosophical cases they give you is they imagine a statue but it's a sign in a park it says no vehicles in the park question they ask is does that apply to a Jeep but aji used as a war memorial hmm I don't know that's great it's a teacher for an hour's discussion in class I mean the answer is you don't know without knowing why they wrote the song okay that's true throughout law it's true throughout law Congress enacts a statute and it says you cannot you cannot kill members of an endangered species and everyone at the time every single congressman Thanks every single one things that a red squirrel is not an endangered species and 30 years later it turns out lo and behold they're no more red squirrels and they're an endangered species well of course you apply the statute to protect those red squirrels because that's what it says that's what its purpose and really the argument between Accio I don't think he'll disagree with that but he'll say be very careful how you do that and don't do that too often because if you do you start looking at the ceiling and thinking about what I don't look at the ceiling you know I do oh wow okay fine I have objective as most judges do and they write their reasons down in their opinions and people who don't like those reasons can criticize them and say they're wrong and that's useful in a democracy because people learn from the criticisms of the opinions and it comes back to us in another case and learn something so that's objective and then he thinks he's got their control through his method of trying to put more weight on the details of the history and I'll say well you know you put too much weight on that you'll have a constitution but it won't be a constitution people be able to live under it won't be a constitution that applies the conditions of modern society the internet which they never thought of automobiles which they never thought of all kinds of things which they never thought up and you start applying it just vlogging my goodness doesn't make any sense they'll get a constitution but that constitution not only won't work but it would be a constitution that would violate the basic principle in the framers mind the basic principle that they're creating a document that includes certain values that will last for hundreds of years and they wanted that above all yes imagine submitting to the people a document that guarantees equal protection of the laws and what it says at the bottom is what equal protection consists of is whatever the Supreme Court of the United States says it consists of from year to year you think anybody would have voted for that does it consist of same-sex marriage for to take just one of many examples of course not are we talking about democracy or not you understand that the Constitution is an exception from the fundamental principle of democracy the fundamental principle is the majority rules we debate about things we put it up to a vote either directly or through our representatives and the majority rules in liberal democracies however the majority does not rule with regard to certain matters and those matters are set forth in the Constitution in ours mostly in the Bill of Rights and the important point is who made those exceptions from democratic self-government the majority did because that Constitution was submitted to the people and it was the people who voted for those things and when they voted against cruel and unusual punishments they never voted for abolition of the death penalty when they voted for equal protection of the laws in ratifying that provision of the Constitution they never voted for same-sex marriage and for a Supreme Court to assume the power to take all of these significant issues out of the democratic process just because we're we're dealing with you know fuzzy words of course they they represent values and when you're dealing with new phenomena such as television and so forth yes you have to calculate the trajectory of the original provisions for example sound trucks there's a famous case SIA versus New York where where New York City prohibited sound trucks after 10 o'clock at night is a case from the 1920 sound trucks were new what did the framers think of sound trucks so you are guessing no you you you have to see what they approved as being permitted by the First Amendment and what they disapproved at the time concretely and they had laws against nuisance so therefore you apply their values to this new phenomenon but to just lean back and say well we're a new society and you know whatever we think is equal protection whatever we think is is freedom of speech that that is a road to the end of democracy and it it's I'm just gonna say something else oh well you don't look at the ceiling ceiling and the others are navel contemplate errs I mean you know it's it's one or the other I I don't can I ask you about one of those projectory cases you wrote an opinion a couple of years ago involving a technique where the police were trying to find out if someone was growing marijuana in the house and what they had was something called a thermal imaging device and they would drive through neighborhoods and see who's hot whose house was hotter than the others and if they thought it was emitting this certain signal then they would get a search warrant and go inside the house now you said that was unconstitutional clearly the founders didn't know from thermal imaging so how did you do that I did it by by regarding what the framers would have thought about a technique that essentially intrudes into the house without the consent of the homeowners to find out what is going on in the house they clearly would have thought that that was unlawful and therefore we we disapproved of it but that's a new phenomena that's not what the fights about in most of these cases the flavie's about the Supreme Court inventing new rights that nobody ever thought existed with respect to with respect to old phenomena the death penalty sodomy abortion suicide all of these things are nothing new and the Supreme Court came within a whisker of saying there's a constitutional right to suicide oh I know the other thing that I meant to say before do not believe that you have to modify the Constitution in order to change in order to keep up to date that's not the function of a Constitution if you want to change you can change as fast as you like through your legislature abolish the death penalty by statute create a right to abortion the way most rights are created in a Democratic Society pass the law you want you want the right to suicide you don't have to read it in the Constitution nobody ever put it in there the people never ratified that you want the right to suicide pass a law as Oregon and Washington have done assisted suicide you're talking about here yes it's hard to punish suicide it really although there were criminal laws against it at one time right right so listen don't be misled the people who want an evolving Constitution are not trying to bring you flexibility they're trying to bring you just the opposite rigidity they want the whole society to have to follow the same rule regarding abortion coast-to-coast the people in Utah and the people in New York have to have the same rule and it will be that way from coast-to-coast now and forever or until the Supreme Court changes its mind that's not flexibility they're the people who want to read new stuff into the Constitution are seeking what a constitution always provides and that is rigidity that's why they're reading your stuff it and that's why you should leave the Constitution the the low bar that it already is what did the people decide to take out of the democratic process and all the rest we persuade each other and vote on it but when you say in your task in the thermal-imaging case was to ask yourself what did the founders think what would they have thought of that how is what you're doing there albeit applying or a write that they recognize to a new technology how is that different from what justice Breyers talking about I am I am in in the process much more closely tied to the concrete things that the framers approved not to simply the concept of freedom of speech and then what should it mean today I would never take that approach I would say you know what speech was prohibited then and and where does this fall with him within that context and the same thing with searches and seizures what kinds of searches and seizures were unlawful at that time and where does this fall within that context what was clearly unlawful was anything that intruded into the home to discover what was going on in the home without the consent of the homeowner what about that Justice Breyer the short answer to the heat-seeking case yes he could have said the answer quicker he looked for the value he plied the value to today's circumstances that's what he did that's what I would have done I joined his opinion it was a very very good opinion excuse me I didn't apply the value I mean no tell me what I did I look at what the framers thought search unreasonable search and seizure consisted on right and I say if they thought this was unreasonable how does this compare with that and perfect no because now people will read that opinion they will see that how what you call looking for what the framers did could be what I call looking for the values so perfect and that's why I think there's less difference and sometimes meets Leon for example what Justice Scalia says is would people vote for a footnote which said and equal protection of law will be whatever the justices say is that's not the question they've already voted from that footnote or happened twice did all the people argue about that but that's a question whether the Supreme Court will have the last word which was decided in Marbury vs. Madison in other cases the question is whether in finding that last word do you look at the ceiling gaze that you're enabled or do what you want I do not know one responsible person who thinks that's the way to go about do you in fact try to look bad to figure out in detail what people would have thought in 1789 or you use what they thought that is a clue to what they were after and then apply what they were after to today's circumstance I'd say I lean towards alaya he leans more towards the former remember we're in agreement probably 80% of the time but now you try to pick some tough cases work really is gonna make a difference now note that most of the examples that are brought up are examples that either have never been decided yet or decided long before I was there but if we want to turn to a real disagreement and this is a good one because there is a real disagreement and it absolutely implies what he's thinking about and it's a difficult case it's not a case that I've chosen because I think all the facts just favor me it's a really hard word and if you were there you'd have to decide in that hard case I think is affirmative action and the question is whether those words equal protection of the law you have to grant everyone equal protection of the law does that mean a state a state school cannot ever look to the race of an individual Africa for example University of Michigan for example to achieve more diversity does it mean total colorblind or does it mean sometimes the state will be able to do it colorblind never some dives well why sometime and there you have a set of arguments coming in that says what the purpose of that 14th amendment was was it was the purpose to take people who had been slaves and bring them into society it was inclusive and therefore a state rule that has its object inclusive should be treated more leniently than one that hasn't it's object and exclusive you think all the arguments favor the latter position if you think that that's my position but if you fear that you're wrong it's a very close question in my opinion and there are lots of good arguments for the colorblind side and there are lots of good arguments for the other side which the perm I call it a purpose I've read now what tips the difference well for me what gives the difference is what I read into the Constitution as a basic objective namely to have a democratic society where the people control the government and if you read Sandra O'Connor's opinion in that case she will quote the army she quotes what the when you say that case she find the diversity regime I talked about brooder University she she taught tells us what the business community said she tells us what the labor union said what the educational institution said and they said we can't run our institutions very well where people are feeling excluded because of their rapes and we don't want to use affirmative action much for diversity but don't tell us we can't use it at all and that was the ground eventually she went on you say looking to purposes and rather high level purposes and the dissent in that case had very strong arguments for a totally colorblind view no that's the kind of case that it makes a difference in and I can't prove that my approach is somehow the right approach or that Sandra O'Connor took them it's a matter of it's a matter of making up your own mind but if I were to read one set of opinions so that you can see the real contemporary difference I think that's the one I'd chew and I go back and look it up and then you'll get a a very good idea of what I think is a real division of opinion in a case which is close and difficult and important how about that inclusive not exclusive come on however the case should be decided it should not be decided on the basis of what you think is is going to make a happier Society what is more gonna please the labor unions or the academics or whoever that is certainly not the issue the issue is what did the American people mean when they ratify the Equal Protection Clause did they say you can discriminate on the basis of race so long as you're doing it for a good purpose did anybody ever think he was doing it for a bad purpose hey let's have a really bad purpose I mean you know even even in Plessy versus Ferguson where they required the blacks to ride in a separate railroad car don't you think there were arguments that this was necessary for the peace and security of society don't you think their arguments like that of course there were but the Constitution says what it says no person shall be denied the equal protection of the law and to grant some people entry into educational institutions because of the color of their skin and deny it to others because of the color of their skin I don't care how useful you think that is socially it violates the provision of the Constitution that one is easy because there you're talking about a clear textual prohibition and just as plus he had to come out the way it did I think affirmative action has to come out the way what I don't want to agree with is that it's easy because the the the side that she wrote for is not set absolutely not saying the constitutional for support from this is the labor unions like it or that the business community likes it or that the armed forces like it or that it would be good truthful and wonderful what they're saying is they're trying to tell us something and they're trying to tell us something that relates to the purpose of the Fourteenth Amendment the purpose of the Fourteenth Amendment isn't a mystery they wanted to take a society that have been divided by slavery and needed a society that could not have been more divisive they wanted to make it one political entity where people would feel they belong the object the level they wanted to do good and avoid EU no no they however the level of generality are you going to go I think exactly where I went but if it's a if it's if it's alright Justice Scalia to say what was the purpose behind the Fourth Amendment in the when you're deciding the thermal imaging case or what's the purpose behind the confrontation clause why is it alright to do the same thing I wasn't saying I was looking at the purpose I was looking at the way the Fourth Amendment operated what did it prohibit what did the founders who adopted it believed it prohibited it prohibited entry into homes has prohibited finding out what was going on in homes without a warrant so in that case do you look at the Fourteenth Amendment and say it was intended to eliminate slavery and that's about as far as it goes well you begin with the text and it says no person shall be denied the equal protection of the laws and with the suspense specific reference to race since it was part of the 14 15 16 13 14 15 Amendment prohibitions of racial discrimination you start with the text where the text is clear you you're you're about it's not up to you to decide what what broad purposes did they have in mind oh they wanted a you know a happy Society what would make a happy Society today oh well then we'll do that that's that's that's no way I mean I need to tell you the actual quote that you started to give when the text is clear you follow the text that's the first half and I think I read somewhere that the person who started with that quote which you used his port Elise wrote the French Civil Code and he's done I said when the text is clear you follow the text but when the text is clear you and it's never clear believe it but it's not clear you look to the values and purposes that lie beneath that's true the French system and it's true the American system who picks the values or purposes at what at what that is about you're trying to read that's why it's a terribly interesting case on I know it's very believable it's very important and it's also difficult and interesting and instructive the Second Amendment gets because there you see two groups of people who are trying to find out just what those purposes all and the first floor to see the first part of that Second Amendment says good a well-regulated militia being necessary to the security of a free State the right of the people to keep and bear Arms shall not be infringed and one group says y'all they put that on there because that's you do you think that it does serve that but that isn't basically what the right to keep and bear arms is to do that we look at Blackstone various other things that defines the right and it will have as a consequence helping the militia while the other group says no let's look at the history here why did they write this and Bester's John Stevens and I agree to anticipate but John Stevens says go back and see what was going on what was going on is we had just fought a civil war against the English we won so it was a Revolutionary War having won we depended on militia to win that and the state controlled the militia but in article 1 of this constitution it says that Congress will have the power to regulate to call up and regulate the militia and in those constitutional conventions in the state to ratify this document where it was touch-and-go the people who didn't like the Constitution said you know what Congress will do in a call up all those militia and once it calls the month it will disband them and then you'll be in effects you states will have no militia at all you will have no way to protect yourself against federal tyranny so Madison not being stupid says here's what we'll do we'll have a write in the Bill of Rights and the Bill of Rights will assure that will never happen and there we have the second well if that's what was going on this is all quite interesting but it has very little application today and so four of us thought that's what was going on but the purpose of the second amendment is basically to assure that the states will be able to have their militia and Congress won't be able to destroy it now you can use those purposes and get certain applications today but not too many what is pretty join to express that for us the right amount what a strange way I mean putting a militia clause or something and it would have been in the main text of the Constitution not would the Bill of Rights with other individual rights given to Americans and it's expressed the right of the people to keep and bear Arms shall not be infringed now the prologue shows that one of the purposes of that of course was to help preserve the militia because the history of the matter was that the English kings had eliminated opposing malicious the militia was was anyway it was not like the National Guard it was not some select group of individuals it was the body of the people trained to arms and the way the English kings had worked their will was not to abolish the militia they would take away the arms of those elements of the militia but they didn't agree with they would prohibit their use of arms for hunting or for any other things and that was the only connection between the functional portion the operative portion of the Second Amendment and the prologue which which relates the militia it makes perfect sense and I don't know why in order to preserve the right to join the militia you would you would express the view the right of the people to keep in bed didn't you do basically the same analysis didn't you try to figure out what they had and what they what was the purpose behind what they why they did it that way well yeah I mean you can call it what the purpose was I was looking for did anybody at the time think that the effect of this provision was solely to enable the states to maintain their militia nobody thought that that was the effect of as nobody thought the effect was to enable people to keep arms in their home for self-defense and for hunting is that sort of constitutional legislative history and I know you disapprove of that but don't you have to do a little of that in a case like this no that's not really legislative history I'm not looking at the at the people who wrote the Second Amendment you know they're they texted the debate of Bates um I'm looking at the understanding of the people on the basis of commentaries on them on the basis of the discussion of it in the ratifying conventions I'm not looking at the draftsmen of it really let me ask you in the few minutes that we have remaining whether there's any place in judging for applying moral values there's a lot none in yours no Justice Breyer is there a place in judging for moral values yes in what way you don't have to give that shorter for example most obvious example shares post obvious example is those who write criminal law and those who apply it and those who have to live under it know that basically criminal law incorporates important moral values of a society and if you discover in enforcing a criminal law or an interpreting a criminal law that you're going to reach you resolved that basically runs counter to basic moral intuition do you think there's something wrong here I better think again that's why we insist for example by and large in criminal law we insist that a person intend the consequences of what he does and a person says I respond who even kills somebody but his hand was blown by the wind and he couldn't stop it that's a person we don't know culpable under criminal law I give a simple example I'm just saying it's filled with the law is filled with the incorporation into law of ordinary moral tuitions intuitions and that comes through in the laws that are passed and therefore should be reflected in interpretation and by the way if you look too soon very quickly sir which leads to striking death more laws it is not my view Justice Breyer Justice Scalia thank you both very much [Applause] [Music] you [Music]