>> the issues that divide america are decided. my exclusive with justice antonin scalia. "piers morgan tonight." good evening. it isn't often a supreme court justice invites a journalist to come sit down with him inside the court itself. but i'm here today in washington to interview the longest serving justice, antonin scalia. justices never comment on cases they just ruled on or are pending, but that left a lot of territory to cover. from his faith, family and guiding judicial principles. his thoughts on campaign finance and politics and his colleagues. it's all on the table tonight, my exclusive interview with antonin scalia. "reading law -- the interpretation of legal texts." welcome. the book is very much a template for the way you conducted your legal life. you are a man that believes fundamentally that the law in america is based on the constitution. >> rigidly, i would not say, but it should be based on the text of the constitutio reasonably interpreted. >> a lot of people say the constitution was phrased in a deliberately vague way. they realized in generations to come, things may change which may put a different impression on a particular piece of text. >> right. >> why are you not prepared to accept that you can move with the times, to evolve? >> i do accept that with respect to those vague terms in the constitution such as equal protection of the laws, due process of law. cruel and unusual punishments. i fully accept that those things have to apply to new phenomena that didn't exist at the time. what i insist upon, however, is that as to the phenomena that existed, their meaning then is the same as the meaning now. for example, the death penalty. some of my colleagues who are not tex you'llists or originalists, at least, believe that it's somehow up to the court to decide whether the death penalty remains constitutional or not. that's not a question for me. it's absolutely clear that whatever cruel and unusual punishments may mean with regard to future things such as death by injection or the electric chair, it's clear that the death penalty in and of itself is not considered cruel and unusual punishment. >> more and more americans come around to think of the death penalty as an ankara nisic thing. a big majority of americans would be in favor of the death penalty. that is beginning to change and you see it, for lack of a better phrase, going out of the fashion. one of the reasons being, dna establishing a large number of people on death row didn't commit their crimes. how do you equate that, as a man of fairness and justice, how do you to be so pro something which is so obviously flawed? >> i'm not pro. i don't insist that there be a death penalty. all i insist upon is the american people never proscribe the death penalty. if you don't have the death penalty, fine. you're quite wrong it's a majority. it's a small minority of the states that have abolished it. the majority still permit it. but i'm not pro death penalty. i'm just anti-the notion that it is not a matter for democratic choice, that it has been taken away from the democratic choice of the people by a provision of the constitution. that's simply not true. the american people never ratified a provision which they understood abolished the death penalty. when the cruel and unusual clause was adopted, the death penalty was the only penalty for a felony. >> all we would have to do is amend the constitution. it can be amended. it's changeable, but it's changeable by a process, not by asking the judiciary to make up something not there in the text. >> the cruel and unusual, i wouldn't prescribe the death penalty as much as torture. i was fascinated by your interview where you said torture wasn't an a cruel and unusual punishment. torture wasn't punishment. hang on a second, clearly it can be a punishmt. if you're an innocent person. say in guantanamo bay and you've expressed views about this, too. say you've been picked up off a battlefield and taken to guantanamo, but you are genuinely innocent. you had nothing to do with anything, and you get tortured, that becomes a punishment, doesn't it? >> it doesn't become a punishment, it becomes a torture. we have laws against torture. i don't think the constitution addressed torture, it addressed punishments. it means punishments for crimes. >> what if you're an innocent person being water boarded? >> i'm not for it, but i don't think the constitution says anything about it. >> isn't it a problem, though, with the originalism? >> it's not a problem. it's a problem of what does the constitution mean by cruel and unusual punishments. >> isn't it down to the supreme court to effectively give a more modern interpretation of the spirit of what that means? >> well, that's lovely. >> why don't you think it is? >> because -- look, the background principle of all of this is democracy. a self-gompbing people who decide the laws that will be applied to them. there are exceptions to that. those exceptions are contained in the constitution, mostly in the bill of rights. and you can not read those exceptions as broadly as the current court desires to read them. thereby depriving americans of legitimate choices that the american people have never decided to take away from them. and that's what happens. whenever you read punishments to read torture. if you are sentenced to torture for a crime, yes, that is a cruel moneyishment. but the mere fact that somebody is tortured is unlawful you should our statutes, but the constitution happens not to address it, just as it does not address a lot of other horrible things. >> what did you argue most with justice scalia about? he's one of the world's great arguers. he's done battle with them all. >> he's an intellectual giant. and we had -- in the first book, we had four debates. where we had pro and con. in this book, we had none. the biggest issue we almost had a debate about, but he persuaded me not to was whether a murderer can inherit. can a son, for example, murder his parents and move up his inheritance and still take whatever the property is from his parents if the statute doesn't say anything about it. and we all feel that that's wrong, and i was at first arguing that there should be an equitable exception and we absolutely have to prevent a murderer from inheriting. what did you say in response to that? >> i said if you're going to be serious about textulism, if the statute doesn't make an exception, it doesn't make an exception. and those states made an exception. that's what happened. >> let's take a break. i want to ask you why you think burning the american flag is allowed, even though personally you would throw them all in jail. 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[ normal voice ] so i can trust 'em. unlike randy. are you in good hands? justice antonin scalia and the co-author of his book. you left the viewers on a cliffhanger. why do you believe people who burn the flag in america have the right to do it, and yet you personally if you had the chance would put them all in jail. >> if i were king, i wouldn't allow people to burn the flag. however, we have a first amendment which says that the right of free speech shall not be abridged. and it is addressed in particular to speech critical of the government. i mean, that was the main kind of speech that tyrants would seek to suppress. burning the flag is a form of expression. speech doesn't just mean written words or oral words. it can be burning a flag, a symbol that expresses an idea. i hate the government. the government is unjust, whatever. >> if you're not sure, then in the end, no one knows the constitution better than you do. doesn't it come down to your personal interpretation of the constitution? if it isn't clear cut, which it clearly isn't, you in the end have to make an opinion, don't you? >> well, forget this person has to be convicted by a jury of 12 people who unanimously have to find that he was inciting to riot. so, you know, it's not all up to me. it would be up to me to say there was not enough evince for the jury to find that perhaps. >> a fair reading of speech including symbolic speech, there's a lot of case law about that, of course. but it's a good example of why we think skrikt construction is a bad idea. a lot of people think justice scalia is a strict constructionist when, in fact, he and i both believe -- >> what does that mean? >> well, it really means a narrow reading. a crabbed reading of statutory words or constitutional words. and it's a kind of hyper literalism which we oppose. >> at the moment, under your interpretation of the constitution, you should be allowed to raise money for a political party. the problem, as i see it and many critics see it, that has no limitation to it. so what you've now got are these super pacs funded by billionaires effectively buying elections. that cannot have been what the founding fathers intended. thomas jefferson didn't sit there constructing something which was going to be abused in that kind of way. i do think it's been abused. don't you? >> no, i think so thomas jefferson would have said the more speech the better. so long as people know where the speech is coming from. >> i'm talking about money to back up the speech. >> you can't separate speech from the money that facilitates the speech. >> can't you? >> it's utterly impossible. could you tell newspaper publishers, you could only spend so much money in the publication of your newspaper? >> that's entirely different. >> would they not say you're abridging my speech? >> but they're not buying elections. the election of a president, as you know better than anybody else, you served under many of them is an incredibly important thing. it shouldn't be susceptible to the highest bidder, should it? >> newspapers endorse political candidates all the time. what do you mean -- they're almost in the business of doing that. >> do you think perhaps they should be? >> i certainly think not. as i think the framers thought, the more speech the better. you are entitled to know where the speech is coming from. you know, information as to who contributed what. that's something else. but whether they can speak is, i think, clear in the first amendment. >> is there any limit in your eyes to freedom of speech? what are the limitations? to you? >> i'm a textualist. what the provision reads is congress shall make no law abridging the freedom of speech. so they had in mind a particular freedom. what freedom of speech? the freedom of speech that was the right of englishmen at that time. >> what's the difference between speech about insurrection being unacceptable and speech as you're burning a flag. isn't that a form of insurrection? >> no, no. no, no. that's just saying we dislike the goth. it's not urging people to take up arm against the government. that's what i mean by speech urging insurrection. speech incitinto riot or inciting to -- >> or shouting fire in a theatre. what about that? >> one of the more complex things about you, justice scalia, which i thinkcriticized in equal measure. you centered against something where i think common sense would dictate the opposite. marilyn craig, a young girl who had been abused by a child molestor. and she gave evidence through closed circuit television. she didn't appear in court and the abuser argued that this was unconstitutional because under the confrontation of the constitution he should have been allowed to be face to face with his victim. what part of human decency or common sense says that he should have the right to be face to face with his young girl victim? because you dissented against the supreme court. you decided he should be allowed to. >> all legal rules do not come out with a perfect sensible answer in every case. the confrontation clause in some situations does seem to be unnecessary. but there it is. but the meaning is clear. you are entitled to be confronted with the witnesses against you. >> even when the witness is a young girl who's already been abused and is actually traumatized by what happened? >> what it says is what it says. >> do you go home at night when you dissent in that particular case? do you have misgivings about it on a personal level? or are you always able to divorce that from your, as you say, legal responsibility to uphold the lesser of the constitution. >> i sleep very well at night, knowing i'm doing what i'm supposed to do. which is to apply the constitution. i do not always like the result. very often i think the result is terrible, but that's not my job. i'm in charge of making the constitution come out right all the time. >> let's take a break and speak about roe v. wade. you had very strong opinions at the time. i suspect you have equally strong opinions today. we'll find out. ♪ [ ding! ] losing your chex mix too easily? 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[ male announcer ] with a variety of tastes and textures, only chex mix is a bag of interesting. my special guest justice antonin scalia and his co-author. let's turn to roe v. wade. you had very strong opinions about this at the time. i know you do now. why are you so violently opposed to it? >> i wouldn't say violently. i'm a peaceful man. adamantly opposed. basically because the theory that was expounded to oppose that decision does not make any sense. and that's namely the theory of substantive due process. there's a due process clause in the constitution, which says that no person shall be deprived of life, liberty or property without due process. that is obviously a guarantee, not of life, not of liberty, not of property. you can be deprived of all of them, but not without due process. my court in recent years has invented what is called substantive due process. by simply saying some liberties are so important that no process would suffice to take them away. and that was the theory used in roe versus wade. and it's a theory that is simply a lie. the world is divided into substance and procedures. >> should abortion be illegal in your eyes? >> should it be illegal? i don't have public views on what should be illegal and what shouldn't. i have public views on what the constitution prohibits and what it doesn't prohibit. >> the constitution when they framed it, they didn't even allow women to have the right to vote. they gave women no rights. >> come on. no rights? >> did they? >> of course, they were entitled to due process of law. >> all kinds of rights. >> you couldn't send them to prison without the same kind of trial a man would get. >> but again, it comes back to changing times. the founding fathers would never have any reason at that time to consider a woman's right to keep a baby or have an abortion. it wouldn't have even entered their minds, would it? >> i don't know why. why wouldn't it? >> because at the time -- >> they didn't have wives and daughters they cared about. >> they did but it was not an issue that they would ever consider framing in the constitution. >> i don't -- >> women began to take charge in the last century of their lives and their rights and so on and began to fight for these. everybody believed that was the right thing to do, didn't they? why would you be instinctively against that? >> my view is regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad, regardless of how you come out on that, my only point is tt constitution does not say anything about it. it leaves it up to democratic choice. some states prohibited it, some states didn't. what roe versus wade said was that no state can prohibit it. most things in the world are left to democratic choice and the court does not do democracy a favor when it takes an issue out of democratic choice -- >> how do you as a conservative catholic, how do you not bring your personal sense what is right and wrong to that kind of decision? because clearly as a conservative catholic, you're going to be fundamentally against abortion. >> just as the pro choice people say the constitution prohibits the banning of abortion, so also the pro life people say the opposite. they say that the constitution requires the bans of abortion because you're denying someone life without due process of law. the constitution said nothing about the choice. regardless of what my views as a catholic are, the constitution says nothing about it. >> what has been your hardest decision, do you think? >> my hardest? >> yeah. >> you don't want to low. >> i do want to know. >> no, it's the dullest case imaginable. there is no necessary correlation between the difficulty of a decision and its importance. some of the most insignificant cases have been the hardest. >> what has been the one that -- >> it would probably be a patent case. do you want me to describe it -- >> no. all right, what has been in your view the most contentious? what's the one that most people ask you about? >> contentious? well, i guess the one that created the most waves of disagreement was bush versus gore. okay? >> get over the possible corruption of the american presidential system? justice scalia? >> look it, my court didn't bring the case into the court. it was brought into the courts by al gore. he is the one who wanted courts to decide the question. and richard nixon thought that he had lost the election because of chicanery in chicago, he chose not to bring it into the courts. but al gore wanted the courts to decide it. the only question in bush versus gore was whether the presidency would be decided by the florida supreme court or by the united states supreme court. that was the only question. and that's not a hard one. >> no regrets? >> oh, no regrets at all. especially since it's clear that the thing would have ended up the same way anyway. the press did extensive research into what would have happened if what al gore wanted done had been done county by county and he would have lost anyway. >> when people say about you that you're this fantastic justice, no one dispute that. incredibly charismatic. you ask the most questions. >> i don't ask the most questions. that's not true. >> apparently someone has asked the last 35 year, you ear the guy that asks the most questions. >> i used to be. >> you ask more than justice thomas, right? >> that's a low bar. >> it's just a bit weird. the guy can join the supreme court and literally not ask any questions? >> that's not unusual. thurgood marshall rarely asked any questions. in fact, a lot of them -- i was the first one who started asking a lot of questions. i appeared before the court once before i became also judge. i was serving in the justice department and i got two questions the whole time of my argument. they both came from byron white. it was not at all unusual for justices not to ask questions. >> let's take another break. so leave clarence alone. >> in fairness, he has a principled reason. he told me in his interview, and this is all on the record, he does not ask questions because he thinks it's too cocophonous and he doesn't want to add to the cacophony. i want to ask you what makes you tick. ♪ ♪ i want to go ♪ i want to win [ breathes deeply ] ♪ this is where the dream begins ♪ ♪ i want to grow ♪ i want to try ♪ i can almost touch the sky [ male announcer ] even the planet has an olympic dream. dow is proud to support that dream by helping provide greener, more sustainable solutions from the olympic village to the stadium. solutionism. the new optimism.™ ♪ this dream ( bell rings ) they remwish i saw mine of my granmore often, optimism.™ but they