Liveblog: Justice Scalia and Justice Breyer Discussion at University of Arizona

October 26th, 2009

The debate begins Monday, October 26, at 2:30 p.m. EST at this link

I will be liveblogging the discussion here. My comments in blue.

A.S. Indicates Antonin Scalia. S.B. indicates Stephen Breyer

Moderated by NBC’s Pete Williams. I think the Arizona Public Media site is flooded right now. The video feed was inconsistent, and kept breaking, so I was not able to transcribe everything. Total NPR fail.

Justice Scalia is wearing a dark grey suit, a light blue shirt, with a dark tie. He is sitting comfortably in a leather chair, gesticulating like a Sicilian should.

Justice Breyer is wearing a cream colored suit, a blue and white striped shirt, and a red tie.

SB: Freedom of speech, Deprivation of Liberty, Cruel and Unusual do not explain themselves. Need to go back to find original intent. Do not know what people in 18th Century thought was cruel and unusual. The questions should be how do the values they enacted then apply to our circumstances today? SB thinks people are not in favor of execution for robbery, or executive a 13 year-old. When we look around the world, hardly anyone that executes a child, even over 12. Question becomes, where do we draw the line today, not where they drew the line in 18th century, in terms of the values they enacted in the constitution in the 18th century.

AS: Just because I would not practice execution does not mean it is unconstitutional. I would find pillorying constitutional and stupid. An enormous amount of things are constitutional and stupid. NINO FTW!

SB: The term is cruel and unusual. Over time, people have different idea of what is cruel.

-I apologize, the feed is very choppy, and it just dropped out, I will try to reconnect.

AS: Some of the provisions in the Bill of Rights according trial rights to the Defendant, many people do not think these provisions are as important as the Framers thought, including the right to trial by jury, which was abolished by U.K.

-Feed dropped again. I am actually attempting to predict what Scalia was saying. I bet he was about to go into a rant on Crawford.

-Video turns back on, and Breyer is talking about the trial of Sir Water Raleigh. I was right! Confrontation clause.

S.B. Scalia doesn’t have a clue what founders intended. SB looks at purposes of confrontation clause, what values they had in mind, and try to apply that as best as they can to circumstances of the present. Justice Scalia does not take this approach. If we didn’t take this approach, where would we be? With school segregation. At time they passed 14th amendment, and said people should be treated equally, schools were segregated. Oh harsh. When people passed 14th amendment, they were trying to create circumstances of equality where people would be brought into the society.

S.B.: Separate but equal did not work. Basic value underlying 14th amendment is a value saying no segregated schools. If that wasn’t clear in 1880’s, it was certainly clear in 1954.  Court did not follow details of what people think.

A.S. As for Brown, I would agree with Justice Harlan in Plessy v. Ferguson, as an originalist. We begin with the text that prohibited racial discrimination. Some states had segregated schools, but some states abolished segregated schools after 14th amendment. Don’t choose jurisprudence based on the method that produces the best result.

Q: About Heller.

AS: Heller was not a hard question. Not even close! (applause).One commentator during entire 19th century though 2nd amendment preserved right to join a militia. He acknowledged that he was the only one. Bad example for a case where it is difficult to find an answer.

SB: They didn’t apply it at that time to stop bazookas because bazookas did not exist.  My belief is that is a matter of degree, not a matter of kind. How much you put on basic value

SB: Talking about “no vehicles in the park.” Does that apply to a jeep? Great for a teacher’s discussion. You don’t know without knowing why the wrote the sign. True throughout law. Congress enacts a statute. Cannot kill members of the endangered species. If a red skill was not endangered 30 years ago, but today it is endangered. Didn’t quite get the gist bc the feed broke, but I think he was explaining that meanings of terms change.

Update: From Josh W. who called AZPM media Department, they were not expecting the event to be so popular and do not have the bandwidth.

More after the jump.

AS: Talking about case that bans sound trucks from making noise in the streets at nights. Have to see they approved as permitted by the First Amendment, and what they disapproved. They had laws against nuisance. Apply their values to this new phenomenon. People argue that we are new society, and we should apply whatever we think is freedom of speech. That is a “road to the end of democracy.” Nice.

Q: Asking about Kyllo (thermal imaging device to scan for marijuana). Founders did not have thermal imaging.

AS: 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 inside a house. The founders would clearly have though about that was unlawful

AS: Supreme court inventing new rights they never thought existed. Sodomy, death penalty, abortion, suicide. These things are nothing new. Supreme court almost found a right to suicide.

AS: You do not have to modify the constitution in order ot change and keep up to date. If you want to change, change through the legislature. Abolish death penalty by statute. Create right to abortion through statute. Create the right to suicide?

AS: I meant a right to assisted suicide. It’s hard to punish suicide 🙂

AS: The people who want to read new rights into the Constitution want rigidity. The right will mean the same thing in all states. Leave the constitution as the low bar it already is.

Q: How is Kyllo different from Breyer’s method (I think this was the question, it cut out)?

AS:  It’s not.

SB: What Scalia calls looking for what framers thought is the same thing as Breyer looking at values. Figure what founders in 1789 were after, and pursue that goal.

SB: Tough cases, where it makes a difference. Hard case- affirmative action. The question whether grant “equal protection of the law,”  does that mean state school cannot look to race of individual applicants.  The 14th amendment does not “grant” equal protection, but it prevents the government from denying it. This is a HUGE distinction, that belies Breyer’s misreading of the clause. Like UMichigan to achieve more diversity. Does it mean complete colorblind? No. Read O’Connor’s opinion, quoting Army brief. Army needs diversity. Look at broad purposes.

AS: People never have “bad” purposes. Legislators always have good purposes in mind, even in Plessy.

SB: Still talking about armed forces brief in Grutter. The founders are trying to tell us something that relates to purpose of 14th amendment. Purpose of 14th amendment, take society that is divided by slavery, and make it one political entity where people think they wanted to belong.

AS: How high up above the level of generality do you want to go? Nino interrupts.

Question: Deciding purpose of 4th amendment and confrontation clause, why not with 14th?

AS: Look at how 4th amendment operated, what did it prohibit? Entry into homes without warrant. Different from 14th. With 14th, begin with the text. Do not consider broad purposes in mind.

SB: When the text is clear follow the text. In the 14th amendment, it isn’t clear!

SB is reading the prefatory clause of the 2nd Amendment. He really should have that memorized 😉

Talking about Stevens opinion in Heller, and about state controlling militia, talking about Article I militia clause, state ratification conventions, opponents of Constitution, militia stuff. Purpose of 2nd amendment to protect these militias.

AS: Looking at ratification debates not looking at legislative history. Looking at the understanding of the people on the basis of commentary, ratifying conventions. I am not looking at drafting history.  This is not accurate . He cites early drafts of the 2nd amendment in his opinion. he certainly does look at Legislative History, but as I argue in this article, older legislative history is more reliable.

Q: Place in Judging for applying moral values?

AS: None.

SB: Yes

AS: Interjects, “only good moral values.”

SB: Criminal law incorporates important moral values in society.

Debate over at 3:30.

Wow, total bandwidth fail. I hope I transcribed as much of that as possible.