Transcripts For CSPAN2 After Words Christopher Scalia Scalia Speaks 20180107

This not about Court Opinions, its about speeches. His Court Opinions are memorable and im often said they went to his opinions first for that reason, they were so crispy written and evocative and powerful and his speeches have the same qualities as his opinions do. He could let more of his personality shine through for one thing. He was a great performer, a little bit of a ham. He played macbeth in a High School Production and i think the president of georgetown theater club so that shined through in the speeches in the way it doesnt in the opinions. And Court Opinions are necessarily they have to follow certain conventions that are asked to turn off the average person who is not a court person or a law student. So we wanted a collection that would be of interest to the layman, really. So itd be interesting to the average americans and not just the legal nerd. Host Something Like well adjusted normal people that dont read court opinion. Normal people arent going to read an opinion. Theyll read a writeup, but probably not the whole thing. One of the advantages about the speeches, especially the law, my dad could explain his approach to interpreting the constitution and the law without having to focus on a specific case, but bring in multiple cases and we were, the coeditor, ed whalen and i, were sure to pick ones that really would be understandable to anybody, not just a law student and of course, the range of subject matter. Obviously there are plenty of speeches about the law in here and a section devoted, really to his approaches to the law and his jurisprudence, but a lot of the speeches have nothing to do with the law and i think the readers will be interested in the surprising subjects he touches on in the speeches. Host certainly, i knew about his view of the law and the law speeches, but this has wonderful speeches at High School Graduations or talking about his catholic faith to catholic audiences. And its one of the real appeals of the book. Guest there were a couple that really surprised me, he spoke a couple of times at the National Wild Turkey Federation convection convention, but we included a speech my father explained why he became interested in hunting and why he loves it. Im not a hunter myself, but i enjoyed the speech because it showed a side of my father i knew a little about, but learned more about through that speech. Host you mentioned you did this with ed whalen, a law clerk from Justice Scalia in the early 90s. Ed is a terrific writer and greatly admired Justice Scalia. How did you do it . Was there a file cabinet full of typed up speeches or did you do any transcribing of audio recordings of speeches . We didnt do any audio transcription. All of these speeches, i should say theres one exception, but all of these speeches are ones that he had sharpened and revised pretty carefully himself. Only a couple had ever been published before and i think thats one of the great things in this collection, but the way we set about this is basically we got a couple of binders of his speeches from his secretary, angela, and he had two binders of about 50 speeches each, i think, spanning, the early 80s through the present. And in addition to those two binders, which were very easy to navigate. We also had a big box of loose speeches, a couple of which were just different versions of or cuts redundant versions of what we had in the binders, most were fresh ones we hadnt encountered. We had to sort through the loose speeches and then there was another box of floppy discs which some of your viewers may not even remember. An archaic form of storing information. So i had to sort through those speeches and again, a couple of those were ones we already had, but there were a lot of new speeches, there, too, it did involve a lot of sorting and sifting. But we were surprised by how many great speeches he had. We both knew he spoke a lot, but and we knew he spoke not just about the law, but at commencement addresses, he spoke at my high school graduation, so i was aware of that, but, again, the Turkey Hunting speech i had no idea about. Just the range of his speeches was very surprising and the consistent quality of them was surprising. So, as editors, i think the hardest thing ed and i had to do was decide what not to include. Theres really no filler in here. Theres a lot of good material that we couldnt include. Again, going back to thinking of the general reader, that was really the cutoff. If we thought that something would be a little too in the weeds for a general audience, we would exclude it. Host were there multiple versions of the same speech . Because i recall hearing Justice Scalia talk different places, different years and my impression was, that he had sort of a stump speech and he sort of knew what he wanted to say. As you say, he was a wonderful performer and a good speech part of it is the substance, but part of it is the points he would emphasize. But is it correct, your sense, that he had sort of a speech about originalism and the law and he could go to a lot of places and take that and sort of deliver it and add material and sort of just talk . He delivered, i think i think i know the stump speech youre referring to. Its a speech he delivered about originalism and why its superior to whats called a living constitution approach. Host right. To jurisprudence and i heard him deliver that speech, too, in madison, wisconsin in 2001. And its one he delivered very often. It was his stump speech and i was looking forward to finding a written version of that, i love that speech, i thought it was great. It included a wonderful passage where he just compared the living constitution approach to a Television Commercial from the 1980s where a prego commercial where somebody is making pasta and heating up storebought pasta sauce and the husband says to his wife, youre using this storebought sauce . Youre not doing it homemade . What about the oregano . And the wife says, its in there. What about the pepper . Its in there. The garlic . Its in there and my dad would say weve got that kind of a constitution now. You want a right to an abortion, its in there. You want a right to die, its in there. Anything thats good and true and beautiful, its in there, no matter what the text says, and i thought that was being a pop culture junky myself and having watched that commercial with my father, i thought i always loved that passage. I was looking forward to finding it, but he never actually apparently wrote that speech down. So, we have a version of it, a very a very different version of it in the collection. One he delivered in australia, i think in the early 90s. But that particular version, which he delivered very often, he never wrote down and instead, he works from a very clipped series of of notes that he called the outline. And the outline of prompts that he would rip off of and if you looked at this speech and the outline, what could this mean . There are 50 words on it, some are misspelled and then he would photocopy the outline and write notes on it for any different occasion. So, the people he should thank at the speech or new ideas that popped into his head. Unfortunately, theres no reference to the prego Television Commercial on the outline. Were surprised thats how he did it. He knew what he wanted to say so clearly, it was easy for him to just rip riff off that basic outline. Host you were a student at university of wisconsin at that time . Yes. Host one thing i remember talking to Justice Scalia about it, he would go out to a lot of universities and then there would be he would surely have a lot of protesters, and maybe its gotten worse now than it was then. But even 20 years ago or whatever, i would always admire the fact that he would go to law schools and universities where he knew there was going to be some, you yeah, people who didnt like him. And he did it anyway. He was not shy about what he thought he was he was a brave guy and didnt mind being criticized. I think its unfortunate the way that politics have gone these days, people tend to go to places where theyll be welcomed and not liberals go one place and conservatives the other. You actually remember him going to wisconsin and getting some protests or some yeah, it was in 2001, shortly after the bush v gore decision so he wasnt terribly popular in madison, wisconsin. There were protesters outside. It wasnt a violent demonstration or anything, really just a handful of demonstrators outside holding pictures of hitler, mussolini and my dad. So, pretty, pretty subdued stuff, nothing too terrible. And like you, you wonder what would be the case now . Im assuming it would be more intense now. That was outside. Inside the lecture hall, the audience was respectful, there were there were pretty intense questions afterwards, there were certainly plenty of people there who disagreed with him and let him know that and there was some combative back and forth even. It wasnt all polite. But, you know, my father delivered speeches in what you might call hostile territory because he was he believed he could persuade people and he believed that people in general were persuadable and open to reason. Even people who disagreed with him. At the very least, he wanted them to hear his ideas unfiltered and he think thats why he delivered speeches as often as he did, and as many speeches as he did. He really believed that he could persuade people and i think that even if he didnt persuade people to agree with him, he was at least able to show that he wasnt the caricature that maybe a lot of people had going into into this speech or the event. Host thats always the reaction i heard from the speeches, either talking to people or reading about them, is that a fair number of students would be quoted say, what do you think . They said, well, i didnt agree with Justice Scalia, but he made a really good argument for this. They came away thinking, you know, theyd actually learned something that caused them to think twice about what they thought. Guest yeah. Host and that he really could sort of win over people to say, this is a really smart guy. Hes got a really good point. I didnt really understand the argument that he was making. He also had a sort of, like nobody else at the court, that the law is sort of he loved to argue and that theres sort of a combat of ideas. And i remember asking him once, hed written some opinions that were sort of critical of Justice Oconnor. People said it sounds like youre going hard on Justice Oconnor. Were friends and we disagree on some things. You go to the middle of the ring and tap gloves and come out swinging and Justice Oconnor probably didnt see the job that way, but his view was that you sort of argue about the law and that was the way to do it because thats the way to, you know, to grapple with whats the right answer. People disagree, you should talk it out. Guest and he often is quoted as saying, i dont attack people, i attack ideas and a lot of very good people have some very bad ideas and thats how he saw it. He didnt in his opinions he didnt do add homonym attacks and he didnt expect, going back to the boxing analogy, he expected people to take their own punches at him, too. Host right. Guest Justice Ginsburg writes the forward to this collection and one of the things that she mentions is that they people may know that they were good friends. They also were good colleagues because they helped each other writing their opinions by pushing back at each other in the drafts, kind of explaining how they could improve an element of their argument by taking into account this point or changing this phrasing here and there. Even though they disagreed, they were trying to help each other out by pushing back. My father my father thought that, again, going back to the concept of persuasion, its possible to persuade people and its possible to help one another kind of arrive at the truth of the matter by but not by just saying what you want without any feedback. There had to be some give and take there, and some conversation, basically. Host their friendship was sort of the wonderful things in washington you dont see much anymore, that they were sort of on the opposite side of ideological sides about a lot of big issues, but it never you know, they were friends in the 1980s, they were friends up to the end. They got together regularly. Justice scalia always spoke well of Justice Ginsburg. Guest yeah. Host he might not join one of her opinions, but he never derided her. Ng he respected her, she respected him, they were friends and its unfortunate that you just dont see a lot of that anymore. People who have fundamentally different political or ideological, but nonetheless could Work Together and be friends. Guest it does seem like ideology has taken a hold of everything, and. Host right. Guest and i think, if people let that happen theyre missing out on encounters with a lot of great people and friendships. In their case, they focused on what they had in common. It was an awful lot. They were born in well, my dad was born in trenton, but grew up in new york around the same time. They had that in common. I think that was an element to their friendship. They both loved opera and they had cameo appearances in opera together and their spouses were great friends, too. My mother is a great cook. Justice ginsburgs husband marty was basically a gourmet chef and Justice Ginsburg and my dad both liked to eat, apparently, so that was another element of their friendship, that i really think kind of just by focusing on those things they had in common, with how the friendship thrived. I think somebody asked my father once, basically, you know, how could you like Justice Ginsburg so much when you disagree about everything. He said whats there not to like . Just a wonderful person. Host yeah, except her views on the law. Guest yes, exactly. Host i saw them together at gw a couple of years ago on the stage and they could also joke with each other. Justice scalia would say, you know, we took that trip to india together. It was a big problem for ruth because we were on this elephant and i was up in the front and all of her feminist friends didnt like the fact that she was sitting behind me and as he finished, Justice Ginsburg in that sort of modest way of hers, she said i was told it was a matter of the redistribution of weight. [laughte [laughter] which he got a kick out of. Guest thats good. Host they could joke and have fun. Tell me, this book, it really is full of wonderful speeches on all kinds of different topics. Tell me what some of your favorites are. Guest well, its hard to narrow it down to a handful. I think, obviously, the legal speeches are probably the ones that we hope will kind of secure his legacy, but theres so much more there was so much more to him in life and i think thats the great thing about this collection, that you see so much of that. So, a couple of my favorites, one, one of my favorites is one for the sake of this collection, we just call the arts. This is one of my favorites because the context is fascinating. I didnt know he delivered this speech so i was fascinated when i discovered it. He delivered it at the Julliard School in new york city. School of, you know, very wellknown school of the arts. And it was on the occasion of the schools 100th anniversary. There was a symposium about the arts in american society. And the schools president now that my father was interested in the opera, and knew he was a conservative justice who would offer opinions that wouldnt be heard very often in new york city. And so he thought, on the one hand, my father would fit right in, on the other hand he might challenge the audience a little bit. So to his great credit, he reached out to my dad, and he tells that my dad was skeptical at first, but was convinced and decided to participate. Im really glad he did. He was part of a fascinating panel. Other speakers on this panel were david mccullough, the Pulitzer Prize winning historicalion, i believe, and opera singer rene fleming and brad way singer steven son heim. A disparate group of people. Im not sure that my father knew that steven sonheim wrote on west side story and i think he wrote into a dissent, but definitely some court opinion. But i dont think my father realized that at the time, but i wished they had a chance to talk about that during their encounter. Apparently, my father got an along with him very well before the speech and at the speech itself, he tells it went over great. And it was faculty, students, artists and law students from around the city and my father begins the speech by kind of recognizing how out of place he is. How incongruous his presence there is. Let me find the beginning, its pretty great. Host i remember that one. Guest he said, im happy to be here this afternoon, and to tell you the truth, somewhat surprised to be here this afternoon. Todays program reads like some sort of iq test. Which of the following is out of place . Diva, author, composer, lawyer . So, he begins, i think, its a brilliant speech because of kind of begins with this selfdeprecating humor and he does that a lot in his speech. Host what am i doing here . Exactly. And then he explains why lawyers are, in fact, important to artists and create the conditions in which the arts can thrive, for example, through contract law and things like that. So, he eventually kind of wins the audience over and he refers to we lovers of the arts, to kind of get them on his side a little bit, and brilliant rhetoric, i think. But that second half of the speech, he challenges them by saying, by discussing the First Amendment. And he says, you know, we lovers of the arts like to believe that all matter of the arts would be protected by the First Amendment, by freedom of speech. In fact, thats not the case. And my father goes on to explain why some of the arts, everybody in that room would like, dance, for example, would not actually be protected by the freedom of speech. And his argument was that through an originalist interpretation of the freedom of speech, that phrase meant something i can it to the founders and didnt include some things. It wouldnt include an opera libreto, for example, it might include sorry, it would include the libreto, but not include the opera music. It might not even include the libreto if it were just ugly and poorly written, that its technically not protected if im remembering my fathers argument correctly. So, he challenges the audience by saying, we may want all of these things to be protected upped the First Amendment, but they arent necessarily. That appropriate approach to the constitution isnt to understand it as defending and protecting everything you like. It protects a lot of things you dont like and leaves a lot of things you like unprotected. So, i think its just kind of a brilliant speech because of the different ways he approaches the audience, and again, the context was so fascinating. Host i thought the same thing. Thats one of his speeches the people were there for the arts and in about 15 minutes they learned a lot of copyright and First Amendment law. He speaks very concisely and sort of tells you in a way that you can understand a whole lot of body of law in a short time. You know, he says, in one of those speeches, that he was invited to give a lot of commencement addresses. He would ask people for advice. And the one consistent advice he got was always keep it to 15 minutes. I dont know whether he did that, but i think that a lot of his speeches are concise. They say a lot, in a relatively few words or few pages. Yeah, especially in High School Commencements. He knew that he wasnt the real story there, it was the students. So he want today move through it pretty quickly. I heard him speak at a few commencement addresses and i thought they all we include a couple of them in here. They were always entertaining easy for his audience to understand as you mentioned, but still, not just not just full of platitudes and, again, challenging. He taught and he challenged with pretty much every time he spoke. Host theres a classic on that one, i thought, that i called platitudes and wisdom. And he gave this speech at your brother pauls graduation at Langley High School and you said he might have given it more than once, but its i thought its amusing. He begins giving a commencement address is not as safe an enterprise as it used to be that sometimes the students sit around and make up jokes and he says a few weeks ago, the Washington Post published a bingo card come containing the most frequently used graduation platitudes, from this is not an ending, this is a beginning and you are the future leaders. And he said the idea is take a card to the Graduation Ceremony and if you could check off a string of chestnuts up and across the entire class would come up in unison and yell bingo and he says, your principal, dr. Manning, is probably angry at me for giving next years class this idea, and then he says ive heard some speeches where i wanted to jump up and yell bingo even without the benefit of a bingo card. And that speech is about the things that speakers say, like this is an unprecedented crisis, and he says, no, it isnt. I thought it was wonderful for a high school graduation. At the end of that speech and goes back to the bingo card idea after the serious points and good luck, lets see i had one last platitude around here, yes, the future is in your hands. Bingo i always got i heard him deliver a version of the speech a couple of times and i always loved it, got a kick out of him ending it by yelling bingo. Host theres something classic about Justice Scalia that so Many High School graduation speeches are full of those platitudes, so he goes and gives a graduation speech that makes fun of platitudes and says why theyre really not correct. Guest and you mentioned one point about, you know, dont think one of his points is, do not think youre facing unprecedented challenges, its usually a matter of degree, not in kind. Those environmental threats, those have been around a long time. We may be facing a different one now and he says there, that the reason its dangerous to think youre facing an unprecedented challenge is that, it will demoralize you a little bit and also, it will prevent you from looking back and learning from history. And trying to glean lessons from the past. Even while hes having fun with platitudes, he is drawing important lessons. Host the other one, the line about never compromise your principles, follow your star. Dont compromise your principles and he says you better think twice about your principles. If your principles are the same as hitler or lenin or whatever, you better think twice about it. Its more important to be sure your principles are correct, rather than in a sense, blindly following principles that would lead you the wrong way. May i read that passage . I love this part. He says, i am here to tell you that its much less important how committed you are, than what you are committed to. If i have to choose, i will undoubtedly take the less dynamic. Indeed the lazy person who knows whats right, than the zealot in the cause of error. He may move slower, but hes headed in the write direction. Movement is not necessarily progress. More important than your obligation to follow your conscience, or at least aspire to it, is your obligation to form your conscience correctly. Nobody, remember this, nobody ever proposed evil as such. Neither hitler, nor linen, nor any other despot you named ever came forward with a proposal that said lets create a really oppressive and evil society. And so, again, poking fun at this as a platitude in a humorous way, but by the end of the section driving home a very serious point pretty clearly. Host i couldnt agree more. I thought its a way of actually delivering a High School Commencement speech that says something significant and memorable, but he does it in the guise of sort of making fun of or knocking down platitudes. Guest yes, this speech includes another he considers the platitude, the United States is the greatest country in the world. And he says, i dont mean to contradict this platitude, but i think we need to consider for a moment why we believe this. He says, i believe this, but i want to make sure we believe it for the right reason, which is classic my father, even in his opinion, you know . And so he goes on to explain why we should think the United States is the greatest country and he says, we are the greatest because of the good qualities of our people, and because of the governmental system that gives room for those qualities to develop. And he goes on to elaborate on that, basically the constitution, not just the bill of rights, but the frame work of the constitution. Host theres a speech after that, too, where he spoke to Law School Classes and somebodys quoted as saying, that you remember this speech. Guest yeah. Host i thought in that one, too, he talked about what a lawyer does, and what lawyer work is, and i thought in a very in a relatively concise speech, he talked about sort of a compulsive precision with words. And ive covered the courts for a long time and it was a surprise to me when i started and its still, is that they will spend, you know, the full hour, a major case comes up, and frequently it turns on whats the meaning of a particular word. Guest yeah. Host and so he makes the point, thats what lawyers do, we spend a long time trying to be precise about words e. Guest i think this is the speech where he compares lawyers to poets and he says, poets love ambiguity, they love vague language. The job of a lawyer is to remove language of all ambiguity. Host right. Guest and to be as clear as possible. He says if you have any interest in being a poet, get out now, those careers are at odds. He makes fun of poets a couple of times, which is funny to me because i like poetry, so, he had as a great line in it, when hes theres another platitude he exams, a spespeech called legal kinard. And he analyzes some common legal things that he cant stand and one of them is emmersons line, a foolish consistency is the hob goblin of legal minds. Thats not a legal expression, but one he encountered in briefs. Of emmerson, i think its a generally sound policy to leave poets alone if they leave you alone. Hes not leaving us alone so i have to analyze it, but again, it comes back to the different writing and thinking of a lawyer, and other professions, including in this case poets. Host tell me a little about your experience as the son of a judge. You were in Elementary School when he was on the court in 1986. Guest yes, i was ten years old. Yes. Host how does it change things in your life and around the house . Well, first it helps to remember that growing up, the most remarkable thing about my family on a daytoday basis was that there were just so many of us. I had eight siblings and we werent ever all nine of us living in the house at the same time, but there was still usually a lot of us in the house. So, that was the most remarkable thing. So, i always we were already kind of a weird family, an unusual family growing up. What changed in 86 was, obviously, just, you know, he was in the papers more. He was a federal judge already and i knew that was kind of a big deal. But he didnt there wasnt a lot of Media Attention for that. But the day he was nominated, i remember i remember watching, seeing my dad on tv, and i remember that the next day hanging out with some neighbors at the pool, and noticing that or just sensing that people were kind of talking about me. Maybe that was just paranoia, but i think its probably accurate. So, i just you know, it became more public, but i didnt really get a sense of how i didnt get a sense of the jobs real significance until probably going through middle school and in high school and then i understood what my dad was up to, what his job was, and really why he was he as a justice, the other justices, too, were getting attention. And even with all of that, and you know, the eminence of his position, my dad made a point of being home every night for dinner. He led the family in grace before meals every night. I took that for granted growing up. In fact, sometimes i didnt like it because it meant we had to wait longer for dinner, because of traffic or Something Like that, but now, you know, i dont have nearly as many kids as he did and just, i appreciate the efforts he took to make the family kind of a normal family, and especially growing up in the d. C. Area, its hard for a lot of parents to be home with their kids and to spend time with their kids. Im really grateful my father did that. In some ways, it was different from my friends families, but in other ways, in the ways i noticed the most, it was pretty similar. Host well, thats impressive cause its one of the things that a job like that, in washington or whatever, you can have a lot of evening encounter a lot of travel, a lot of trips and all that. Guest yeah, and obviously, he went on trips. I mention in my introduction when every summer he and my mom would go on a go away to europe or Something Like that for a teaching speaking excursion and my older siblings, never me, would take advantage of that by having a few friends over, but and after dinner, he would get back to work. So i still knew he was busy, but that time was always did i was going to ask you did he do a lot of work at homes on the evenings and weekends . He would, he would go to the study in the house. I love that study. Book shelves, a fireplace he never used, but decorative fireplace, but just the aura of that room always impressed me, but he would read briefs in there and later in the career, there would be a computerer in there and type away on his opinions. Host i was going to say, he did a lot of writing at home . He did, yeah, id often walk by when the door was over and hed be leaning over the keyboard and over the screen revising or hed have another reading chair to read briefs. Host were the kids on notice, dont interrupt dad . I dont remember him saying that. And i think it was a given. His study was right by the foy and we would hang around there a sometimes and be loud and he would sometimes remind us, but usually kind of knew, and be upstairs doing our homework or downstairs watching tv, preferably. Host if you ever go up to the court and watch arguments or see him in action at different places . Well, i did hear him give a few speeches. Unfortunately, i only saw one oral argument. I was really regret that. My wife has a law degree and we up until shortly before my dad died we didnt when we were married we never lived up here and we didnt get chances to see them together, but i wish my mom im sorry, my wife got to see oral arguments. I only saw one, i enjoyed it, but wish i should have taken better advantage of the opportunity while i had the chance and i took it for granted. I went to court occasionally, and you know, visited his chambers or went to events there, its just, i love going there, such an impressive building and such a great aura to it. Host i have covered i actually started covering the court the summer he arrived in 1986 and everybody said, i didnt have a full appreciation of, he changed the court had changed, there were no dull oral arguments when Justice Scalia was there. Because even if there was a dull argument, he would ask a question that said, so, counsel, you want us to say the word blue really means black . He would ask a question that sort of put the lawyers on notice that he wasnt buying whatever they were saying. And anyway, he had a wonderful sense of sort of comic timing. And hes you know, very smart guy and if a lawyer would make an argument that didnt make a lot of sense, he would sort of squint and then give him one of those zingers, so, it was there are a lot of reasons why the court says they dont want the oral arguments on television, but its one of my regrets is that students and the general public couldnt watch some of those arguments cause he theyre interesting to begin with, but he always enlivened the argument and sort of pushed both sides and made it a more interesting when i started there were a lot of very old justices who mostly would sit there for the hour and listen. Guest yes. Host but Justice Scalia thought this was sort of an opportunity to go in there and ask the question that was on his mind and somebody ought to answer it so he really enlivened it and sort of continued on after that. There will not be anybody like Justice Scalia, but the arguments are much more lively thanks to him. Guest thats my understanding, too, that he kind of changed things and i think he brought that his background is as a law professor. He was a law professor for some time and i think he kind of brought that professorial demeanor and approach to oral arguments and did change oral arguments so much that now, if you dont speak every time, people think somethings wrong with your approach. But, yes, back then, it was much more subdued and he brought liveliness to it, that most people participate in now. Host reminds me of one of the jokes at that period, when he arrived in 1986 i think that louis powell the old virginiaion was there one year, retired at the end of the year and people said that Justice Powell thought the new guy thought scalia asked too many questions. And i saw retired judge powell, were you bothered that Justice Scalia asked too many questions. You know, mr. Savage, he was a law professor and they get to speak for the full hour. [laughter] i think a way of saying, yes, maybe, but everybody caught up after a while and as i said, he changed the arguments, i think all for the good because its a much more Lively Exchange because of the justices are fully engaged in asking questions. Guest yeah. Host so. Well, tell me about another theres an awful lot of speeches about subjects about his catholic faith, for example. A big theme of the book. Tell me something about one of those speeches of your thoughts on that. Ill talk about a couple from that section. So he really valued or put a great emphasis on his speeches about religion. Probably second only to the speeches he delivered about the law. Host right. And really refined these and polished these. One in particular, he delivered very often was the christian, as chretien or as he called it other times, the two thomases. And in that speech, he focuses on or discusses the differences between Thomas Jefferson, the great founder, obviously, and st. Thomas moore, one of my fathers heroes. The year after my parents got married they lived traveled around europe a little bit and they saw the robert bolt play, man for all seasons about thomas moore and it really impressed both of them and kind of really left a deep i am imprint on my father throughout his life and what impressed him about thomas moore was his respect for the law, but also, his devotion to his faith, that it was possible to have both of those things. As opposed and he contrasts that with Thomas Jefferson who had a version of the bible, the jefferson bible, he edited the gospels to remove references to anything miraculous or unbelievable. The new jefferson testaments concludes with the death of christ, theres no resurrection and no miracles, obviously. So my father uses those two important figures as contrasts and tells he delivers a speech often to groups of catholic lawyers and telling them that st. Thomas moore is a great model for you, and ill just read the ill read the end of this speech. It is the hope of most speakers who impart wisdom. It has been my hope to impart to those already wise in christ the courage to have their wisdom as regards stupidity. Are we thought to be fools . No doubt, but as st. Paul wrote to the corinthians, were fools for christs sake, are we lead to be childish, and christ did say we were his sheep and we would not get to heaven unless we became like little children. So, it was a reminder to a specifically christian audience of that they would be seen as peculiar to nonchristians, particularly in secular environments, obviously. He always thought, that speech was crucial to him and kind of his set of speeches. He delivered that one often. And theres another speech he delivered called faith in judging, which, i think, is really important because it clarifies the relationship between his faith and the law and i think it will disspell a lot of preconceptions people have of the fear that he was some sort of theocrat. In this speech he makes it clear although he takes his re ligs seriously, his job as a lawyer or as a justice is not to impose his religious beliefs or policy preferences on the law. And he gives the example of abortion. So, let me read a little bit here. First, he says, just as theres no catholic way to cook a hamburger, so, also, theres no catholic way to interpret a text, analyze a historical tradition or discern the meaning and legitimacy of prior judicial decisions except, of course, to do those things honestly and perfectly, and he goes on to explain how this applies toward his attitude toward abortion law. I find myself somewhat embarrassed, therefore, when catholics or opponents of abortion come forward and thank me for my position on roe vs wade. Thats not affirmation of my religious belief or policy choice, but the product of lawyerly analysis of constitutional text and tradition and that legal analysis had produced the opposite conclusion, i would have had to come out the other way regardless of their or my views concerning abortion. My religious faith can give me a personal view on the right or wrong of an i abortion, but it cannot make a text say yes where it in fact says no or tradition say we permit when in fact it says we forbid. If my position on roe vs wade, were on this, imaginative justices say, no one is deprived the life and liberty. However, the constitution does not ban abortion any more than infers abortion, and no amount can change that. Thats going back to a similar idea he was presenting in the speech about the arts, but just because you like a policy or dislike a policy doesnt mean its defended or rejected explicitly in the constitution. Host i thought it was another very good im glad you read that, another good passage for people to understand his viewers views on the law especially with Something Like abortion. His position was the constitution doesnt settle this, this is up to each state. Guest exactly. Host and in a country like this, if there were no row versus wade, some states would allow abortion and some would forbid it, but it would not be decided by the constitution. Guest that was my fathers general argument in favor of religion and against a living constitution approach to interpretation. He believed that the living constitution approach, which basically argues that the constitution evolves with the morals and standards of the times. And so, as opposed to originalism, whereby justices tried to interpret the constitution to its original public meaning. What it meant, and its originalism for laws and statutes. What did it mean then . What did people think they were voting for on the senate floor . And he believed that the living constitution approach basically allowed justices to seize too much power from voters, and from legislators, by making them the arbiters of an ages, or the countrys morals and standards and values at any given time. So he had kind of a more modest view for judges, view of a judges jobs in a lot of ways, if the law doesnt say something, then the people have to fill in the gap. Its not the role of the justice to do that. Host so he does talk about originalism a lot and its an important idea, it was one of his favorite ideas and he talks about it a lot of different audiences including a speech interpreting the constitution. I am one, but a small group of hearty judges in the United States speaking in australia, who subscribe to the principle of originalism. Originalists believe the provisions of the constitution have a fixed meaning which does not change. They mean today what they meant when they were adopted, nothing more and nothing less. And you know, thats one of those i find that appealing and i think most people do. I almost said a regret in a book like that that you dont have Justice Scalia answering some of this, the hard part, whether you take the provision to have a fixed narrow meaning or that its a fixed principle. Guest yeah. Host i know he dealt with this a few times. The braun versus board of Education One way to illustrate it, 1954, the Supreme Court strikes down School Segregation violates the equal protection clause. Now, the equal protection clause was added in 1868, and no state may deny any person equal protection of the laws, the same Congress Allowed segregated schools in washington d. C. The 1890s, you know, the Supreme Court in the separate allowed separate railroad cars. And then in 1954 they sort of changed direction, said, no, look at america today. Having separate schools for blacks is inherently unequal. I think the hard question is, i think that Justice Scalias view was the equal protection law forbids racial discrimination, always did, but the very people who passed it didnt think it had that meaning. So that if you said it only had the fixed meaning in the narrow sense of 1868 then it would suggest that brown versus board of education was a sort of made up new meaning. So i think thats where the debate is. Guest and brown v board is a particularly important one, obviously. And he doesnt address that in this book as you mentioned, but i believe he does in reading the law, a book he worked on with coauthor brian garner. Host right. Guest i think he does in that. I dont im not an originalist myself. I dont have a legal background so i dont know the details, but i do know that he does address that particular argument in another book. So, but, yeah, i wish i could give you an answer now. But he gives the example of womens suffrage and argues, they back then, nobody understood that to mean that women could vote. They believed that it meant they had to actually go out and fight for an amendment and win it that way. Host right. But, yeah, i dont know how that applies to brown v board. I wish i could give you an answer for that. Host its just one of those things that Justice Scalia, as a firm advocate for his view and almost seems like, that you sort of wish he would still here to say, okay, but what about this or whatever. Guest one thing he says often, he doesnt think originalism is perfect. He just thought it was the better. Host the better. Guest the best approach out there. Nor did he think that originalists would always arrive at the same conclusions. And he gives these speeches examples, instances in which he and Justice Thomas arrive at different ends of an opinion, so both approaching it as originalists. He gives, also, the example of heller, the d. C. Gun control case of 2008, 10. Host 2008. Guest so, even in that case, the minority decision also took he wrote the majority and obviously, he took an originalist approach, but the minority opinion also approached it, i think, not as thoroughly, emphatically as originalists, but also used some of the methods he had been preaching about. Host i remember that well. The Second Amendment says a wellregulated 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 Justice Scalias opinion goes back to england and britain and basically says the right to have a gun was always seen as a sort of right, and Justice Stevens in dissent, the Second Amendment was really about state militias and they go back and forth. I think people thought it was one of the interesting situations where Justice Scalias method or approach had sort of won over the court, but it didnt actually resolve because both of them had a different view about the original meaning of that provision. Guest yeah, my fathers argument there, he discusses it here, unfortunately, i dont remember the precise page number, but, yeah, at the time that that introductory clause was referring to a specific event that the founders would have been familiar with. The other early americans would have been familiar with, and it wasnt the only defense, but kind of an aspect of many. You know, for a lot of lawyers ap i think justices of the court, one of the other great things he did, its hard to explain to an ordinary audience, but the whole next of notion of text and interpret text, what else would you do. The frequently the justices would say, what was the purpose of this statute. So i remember a famous case in the 1970s, remember 1964 Congress Passed a law that says you may not discriminate. Nobody may discriminate against employees because of their race, sex and gender. In the mid 1970s, however, there was a question of affirmative action, where companies were saying, were going to every other new hire is going to be an africanamerican to make up for the history of and so the question is, do you follow the text, which says dont discriminate against anybody on race, or do you follow the purpose. Guest right, thats a great example of that conflict. Host and so i do think its not as discussed or controversial, but i think that Justice Scalia made an enormous difference of sort of focusing the Supreme Courts attention and almost all judges on, okay, but what does the statute actually say . Lets sort of think about what they were trying to do, what does it actually say . And there are so many arguments i went to where he would, you know, basically get the lawyers to say, now, wait a minute, what does it actually say and theyd spend time focusing on the words and its really a very significant change in the law. Guest yeah, as you know, i mean, the warren court in particular took that living constitutionalist approach and my fathers attitude was he wasnt he wasnt introducing anything new with originalism or text ulism. He was trying to revise the approach and bring it back, it had always been that way until relatively recertain relatively recently. And that causes them to craft their language. It meant my father didnt like looking at legislative history. When focusing on the intent of a law lawyers and judges would often look to congressional records, what did people say in conference meetings, for example, what were they trying to hash out and my father, one of my fathers arguments against that was that the people voting on this law werent voting on conference meetings. Few were in the conference meetings or knew about the internal discussions. They were voting on what the law actually said, the proper text of the law. But thats what thats what the people were voting on and thats what the representatives were voting on so thats what the justices should be interpreting and focusing on. He also pointed out that the legislative history, once Congressional Staff and congressmen and women realized that lawyers and justices were looking at legislative history they could basically doctor it, read a statement and get a specific interpretation in the congressional record so it can be used as legislative history when judges are trying to interpret the law, even if it had no actual appearance in the text itself. Host i think that was one of the advantages he had as being a Justice Department lawyer for a number of years before he went on the court because he saw that in what was happening. I think he knew that that became sort of a game, that the Committee Staff would take a report and file a report with the bill and say, here is what this real meant. Guest yeah. Host the danger was that it wasnt necessarily part of the agreement, it was sort of and hes done a great, i think, to lessen the focus on legislative history, and its one of the many delightful things in this what we have basically run out of time, but i wanted to say, thank you and ed whalen for doing a wonderful job for putting together these speeches. Guest thank you. Host its a great read for a lot of lawyers and a lot of interested people because it not only talks about the law and does it in an engaging way, he talks about a whole lot of other aspects of his life and growing up and makes for a wonderful read. Guest thank you so much. Its an honor to work on the book and a pleasure talking to you about it. Host thanks, christopher. If youd like to view other after words programs online, go to our website, book tv. Org. Type after words into the search bar and all previous after words episodes will be available. Here is a look at some of the upcoming book fairs and festivals happening around the country. January 24th to 26th well be in california for the writers festival and feature former Senior Advisor to president george w. Bush karl rove, former senator barbara boxer. Ed stevens, historicalion Barbara Miller and others. Then to georgia, live on book tv on cspan2. On march 10th and 11th live from the university of arizona for the tucson festival of books. And later in march the virginia festival of the book in charlottesville. The Washington Post columnist has written many novels including