>> the highest court in the land where the issues that decide america are decided. my exclusive on piers morgan tonight. good evening. it's not often a supreme court justice sits down outside the court itself. i am here in washington it interview the longest serving justice, ant 99 scalia. they never comment on cases that are pending. everything from his faith and family to his guiding judicial principals and thoughts on campaign finance and politics and his colleagues. it's all on the table and my interview with scalia and coauthor of their new book. reading law, the interpretation of legal texts. justice scalia, welcome. brian, welcome to you too. >> thank you. >> 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 should be based rigidly on the letter of the constitution. that's what you believe? >> yes. give or take a little. rigidly i should not say, but it should be based on the text of the constitution, reasonably interpreted. >> people criticize you for this and say a lot of the constitution was phrased in a deliberately vague way. they realize when they framed it that in generations to come, things may change that may put a different impression on a particular piece of text. >> right. >> why are you not prepared to accept that that means you can move with the times to evolve it? >> but 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 a play to new phenomena that didn't exist at the time. what i insist upon however is as to the phenomena that existed, their meaning then is the same as their meaning now. for example, the death penalty. some of my colleague who is are not 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 are thinking the death penalty -- 50 years ago when you were the longest serving justice when you began, the majority of americans, the big majority is beginning to change. you are seeing it as going out of fashion. one of the reasons being the introduction of dna and 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 continue to be so pro something that is flawed? >> i'm not pro. i don't insist there be a death penalty. all i insist is that the american people never proscribe the death penalty and never adopted a constitution that said the states cannot have the death penalty. if you don't like it, fine. some states have a polished it. it's a small minority of the states that abolished it. the majority still permit it. i am not pro death penalty. i am just anti-the notion that it is not a matter for democratic choice. it has been taken away from the democratic choice of the people by a provision of the constitution. that is simply not true. the american people never ratified a provision which they understood a polished the death penalty. when the cruel and unusual punishment clause was adopted, that was the only penalty for a felony. >> we have to amend the constitution. it is changeable, but changeable by a process and not by asking the judiciary to make up something that is not there in the text. >> in the crucial and unusual, i wouldn't say the death penalty so much as torture. i was fascinated by the 60 minutes interview where you said it wasn't a cruel and unusual punishment. torture was not punishment. it clearly can be a punishment. if you are an innocent person say in guantanamo bay. say you have been picked up off a battlefield and you are genuinely innocent and have nothing to do with anything and get tortured. that is a punishment, isn't it? >> no, it becomes torture and we have laws against it, but i don't think the constitution addressed torture. it addressed punishments that means for crimes. >> what are about if you are an innocent person being waterboarded? >> i'm not for it, but i don't think the constitution says anything about it. >> it's not the problem with the originalism? >> it's not the problem. it's a problem what does the constitution mean by cruel and unusual punishments? >> isn't that up to the supreme court to effectively give a more modern interpretation of the spirit of what that means? to adapt it to modern times. >> that's lovely. i don't think it is. look. the background principal of all of this is democracy. a self-governing people who decide the laws that will be applied to them. there exceptions to that. those exceptions are contained in the constitution mostly in the bill of rights. you cannot read those as broadly as the current court desires to read them. there by depriving americans of legitimate choice that is the american people have never decided to take away from them. that's what happens. whenever you read punishments to mean torture. if you are sentenced to torture for a crime, yes, that is a cruel punishment. the mere fact that someone is tortured is unlawful under 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 the justice. he is one of the world's great arguers. >> he's an intellectual giant and we have no debates in this book. in the first book we had four debate where is we had a pro and con. in it book we had none. the biggest issue in the end, we almost had a debate, but he persuaded me not to. that was weather a murderer can inherit. can a son 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. we all feel that's wrong and i was the first to argue that there should be an exception and we absolutely have to prevent a murderer from inheriting -- what did you say? response to that? >> i said if you are going to be serious about textualism, it does not make an exception. those states that hadn't made an exception amended their statutes. >> when are we come back, i want to ask you why you think burning the american flag should be allowed even though personally you would throw them all in jail. ♪ [ acoustic guitar: upbeat ] [ dog ] we found it together. on a walk, walk, walk. love to walk. yeah, we found that wonderful thing. and you smiled. and threw it. and i decided i would never, ever leave it anywhere. because that wonderful, bouncy, roll-around thing... had made you play. and that... had made you smile. [ announcer ] beneful. play. it's good for you. with two times the points onake lunch dining in restaurants,ch? you may find yourself asking why not, a lot. chase sapphire preferred. there's more to enjoy. did you know honey nut cheerios is america's favorite cereal? oh, you're good! hey, did you know that honey nut cheerios is... oh you too! ooh, hey america's favorite cereal is... honey nut cheerios ok then off to iceland! my special guest, justice scalia. why you believe that people who burn the flag in america should be allowed to do so and yet you personally if you had the chance would send them all to jail. >> yeah. if i were king i would not allow people to go about burning the american flag, however, we have a first amendment which says that the right of free speech shall not be abridged and it is addressed in particular to speech critical of the government. that was the main 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. burning a flag is a symbol that expresses the idea. i hate the government, the government is unjust, whatever. >> if you are not sure, in the end, no one knows the constitution better than you do, doesn't it come down to your personal interpretation of the constitution? is it clear cut, you in the end-have to make an opinion? >> this person has to be convicted by a jury of 12 people who unanimously have to find he was inciting to riot. it's not all up to me. it would be up to me to say there was not enough evidence for the jury to find that perhaps, but ultimately, the right of jury trial is the protection. >> don't you think this example of speech and reading speech in a fair reading is including symbolic speech. there is a lot of case law about that of course. it's a good example of why we think strict construction is a bad idea. a lot of people think justice scalia say strict constructionist when he and i both believe -- >> what does that mean? >> a narrow reading. a crabbed reading of statutory words or of constitutional words. it's a hyper literalism which we oppose. we like a fair reading of the statute and the words. in this case, speech. >> let me take up the issue of speech and turn to political fund-raising. at the moment under your interpretation i believe of the constitution you should be allowed to raise money for political parties. the problem as i see it and critics see it that, has no limitation. what you have now got are the super pacs funded by billionaires effectively trying to buy elections. that cannot mean what the founding fathers intended. thomas jefferson didn't construct something which was going to be abused in that kind of way. i do think it is being abused, don't you? >> i think thomas jefferson would have said the more speech the better. that's what it's all about so long as they know where the speech is coming from. >> i'm talking about money. >> you can't separate speech from the money that facilitates the speech. >> can't you? >> it's utterly impossible. could tell and so much money to the publication of the newspaper? would they not say this is a bridging of my speech some. >> they are not buying elections. >> the election of a president is better than anybody else. they should be susceptible to the highest wid bidders. they are almost in the business of doing that. are you going to limit the amount of money they can spend? surely not. i think the framers thought that the more speech the better. now, you are entitled to know where the speech is coming from. as to who contributed what, that's something else. whether they can speak is i think clear in the first amend am. >> sorry there a limit in your eyes to freedom of speech? what are the limitations to you? >> i'm a textualist. what the profession reads is congress shall make no law a bridging the freedom of speech. they had in mind a particular freedom. what freedom of speech? the freedom of speech that was the right of english men at that time. those are exceptions. >> between speech and insurrection being unacceptable and speech as you are burning a flag. isn't that a form of insurrection? >> no, no. that's just saying we dislike the government. it's not urging people to take up arms against the government. that's something quite different. that's what i mean by speech urging insurrection. speech inciting to riot. >> or shouting fire in a theater. what about that? >> what are the more complex things about you and criticized in equal measure. the case i would put to you or it's interesting where you sent it against something where i think common sense would have dictated the opposite. a young girl who had been abused by a child molester and she gave evidence through closed circuit television and didn't appear in court. the abuser argued that this was unconstitutional because under the confrontation he should be allowed to be face-to-face with his victim. what part of human decency or common sense said he should have the right to be face-to-face with his young girl victim? you decided he should be allowed to. >> all legal rules do not come out with a perfect sensible answer. the confrontation clause in some situations does seem to be unnecessary. there it is. its meaning could not be clearer. you are entitled to be confronted with the witnesses against you. >> this is a young girl who has already been abuse and is traumatized by what happened. >> what are it says is what it says. >> do you go home at night when you descent on that case, do you have misgivings or are you always able to divorce that as you would say from your legal responsibility to uphold the lesser of the constitution. >> i sleep very well at night. i am doing what i am 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 not king and i haven't done charged with making the constitution come out right all the time. >> let's take another break and come out with one of the most contentious supreme court decisions, row v wade. you had a strong opinion at the time and i suspect you have strong opinions today. 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[ all screaming ] watch the elbows ladies. my special guest, justice antonin scalia and his coauthor. let's turn to row v wade. you had ry strong opinions about this at the time. i know you do now. why were 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 impose that decision was a theory that does not make any sense. that is namely the theory of substantive due process. there is a due process clause in the constitution that said no person shall be deprived of life, liberty or property without due process. that say guarantee not of life, liberty, 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 no process would suffice to take them away. that was the theory in roe vs. wade. a theory that is simply a lie. the world is divided. >> should abortion be illegal in your eyes? >> should it be illegal? i don't have public views on what should and shouldn't be illegal. i have public views on what the constitution prohibits and what it doesn't. >> the constitution when they framed it, they didn't allow women to have the right to vote. they had women with no rights? >> no rights? >> did they? >> of course. they were entitled to due process of law. you couldn't send them to prison without the same trial a man would have. >> for 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 enter their mind. >> i don't know why. why wouldn't it? they didn't have wives and daughters? >> they did, but it was not an issue. women began to take charge in the last century of their lives and rights and so on and began to fight for these. everybody believed that was the right thing to do. why would you be against that? >> my view is regardless whether you think prohibiting abortion is good or bad, regardless of how you come out on that, my only point is the constitution does not say anything about it. it leaves it up to democratic choice. some states prohibited it and some didn't. what roe vs. wade said was that no state can prohibit it. that is simply not in the constitution. it was one of the many things, most things in the world left to democratic choice. the court does not do democracy a favor when it takes an issue oust democratic choice simply because it should not be there. >> how do you as a conservative catholic, how do you not bring your personal sense on what is right and wrong to that kind of decision? clearly as a conservative catholic you are going to be fundamentally against abortion. >> as the pro choice people say the constitution prohibits the banning of abortion, so also the pro life people say the opposite. they say the constitution requires the banning of abortion because you are debriefing someone of life without due process of law. i reject that argument just as i reject the other. the constitution in fact said nothing at all about the subject. it is left to democratic 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? you don't want to know. >> i do want to know. >> it's the dullest case imaginable. no necessary correlation between the difficulty of the decision and its importance. some of the more insignificant cases have been the hardest. >> what are has been the one -- >> the patent case. want me to describe it? >> what is the 1 that most people ask you about? >> contentious? i guess the one that created most waves of disagreement was bush versus gore. that comes up all the time and my usual response is get over it. >> get over the possible corruption of the american presidential system? justice scalia? >> my court didn't bring the case into the court. it was brought into the courts by al gore. he is the who wanted courts to decide the question. richard nixon thought that he had lost the election because chicago, he chose not to bring it into the cowers, but al gore want the courts to decide it. the only question in bush versus gore was weather the presidency would be decided by the florida supreme court or by the u.s. supreme court. that was the only question. that's not a hard one. >> no regrets? >> no regrets at all since it's clear that the thing would have ended up the same 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 are people say about you that you are fantastic justice, no one disputes that and charismatic and ask the most questions. >> i don't ask the most questions. that's not true. >> somebody counted. you are the guy that asks the most questions. >> i used to be. >> more than justice thomas, righ >> that's a low bar. >> a guy can join the supreme court and not ask any questions? >> that's not unusual. thurgood marshall rarely asked questions. income, a lot of them -- i was the first who started asking a lot of questions. i appeared before the court once before i became a judge. i was