LUBBOCK, Texas (AP) — One of the most conservative justices on the U.S. Supreme Court and one of the most liberal ones sparred Friday over capital punishment, the direct election of senators and various other constitutional questions during a rare public debate that highlighted their philosophical differences.
Antonin Scalia, 74, the longest-serving current justice, appointed by Republican President Ronald Reagan, and Stephen Breyer, 72, appointed by Democrat Bill Clinton, shared the stage in front of a crowd of thousands during a West Texas event organized by Texas Tech University Law School.
They particularly clashed on the question of capital punishment.
Scalia argued that while there’s room for debate about whether the death penalty is a “good idea or a bad idea,” it is not cruel and unusual punishment.
“There’s not an ounceworth of room for debate as to whether it constitutes cruel and unusual punishment because, at the time the Eighth Amendment was adopted — the cruel and unusual punishments clause — it was the only punishment for a felony. It was the definition of a felony. It’s why we have Western movies because horse thieving was a felony.”
Breyer said 200 years ago, people thought flogging at a whipping post was not cruel and unusual.
“And indeed there were whipping posts where people were flogged virtually to death up until the middle of the 19th century,” he said. “If we had a case like that today I‘d like to see how you’d vote.”
The two bandied about other issues, including Brown vs. The Board of Education, the landmark high court decision in the 1950s that 
outlawed school segregation case, cable television rulings, and how they view cases that come before them.
Later, Scalia returned to the issue of flogging, saying it’s “stupid” but “not unconstitutional, which is stupid. There‘s a lot of stuff that stupid that’s not constitutional.”
Scalia said he has no interest in what legislators intended when making a particular law. Breyer countered, saying judges need to go back and find out the purpose legislators had when crafting a bill.
“I don’t at all look to what I think the legislature thought,” Scalia said. “I frankly don’t care what the legislature thought.”
Breyer responded quickly, saying, “That’s the problem,” which brought thunderous laughter from the crowd.
“You’ve got to go back to the purpose of the legislation, find out what’s there,” Breyer said. “That’s the democratic way, cause you can then hold that legislature responsible, rather than us, who you can’t control.”
At the end, the two were asked what they would change about the Constitution.
“Not much,” Breyer said. “It’s a miracle and we see that through” our work.
Scalia called the writing of the Constitution “providential,” and the birth of political science.
“There’s very little that I would change,” he said. “I would change it back to what they wrote, in some respects. The 17th Amendment has changed things enormously.”
That amendment allowed for U.S. Senators to be elected by the people, rather than by individual state legislatures.
“We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states’ rights throughout the rest of the 20th century. So, don’t mess with the Constitution.”
AP
Breyer countered that change has sometimes been needed.
“There have been lots of ups and downs in the enforcement of this Constitution, and one of the things that’s been quite ugly — didn’t save us from the Civil War — is that there is a system of changing the Constitution through amendment. It’s possible to do but not too easy.”
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Comments (85)
ScarletRose
Posted on November 13, 2010 at 1:17pmBreyer countered that change has sometimes been needed. “There have been lots of ups and downs in the enforcement of this Constitution, and one of the things that’s been quite ugly — didn’t save us from the Civil War — is that there is a system of changing the Constitution through amendment. It’s possible to do but not too easy.”
———–
That just proves that the Amendments the Dims went for are not popular, and the Amendments the GOP SHOULD be going for, are easily popular enough with Americans, but the GOP is tied to the Dims’ Agenda, not to the American Voters, and refuse to get the Amendments rolling, that would easily pass the Voters.
What Breyer is saying is that it is too hard for powermongering Government “Servants” to change our Constitution to THEIR ADVANTAGE against the best interests of the Constitution, the Nation, and the Citizens.
Report Post »Montana Libertarian
Posted on November 13, 2010 at 1:08pmScalia is correct. I certainly hope he hangs on and stays healthy. We need more like him.
Report Post »janedough1
Posted on November 13, 2010 at 12:49pmWhat a fine example of why we need to take back congress and the office of the president and hold it for long enough to get rid of the Progressives on the court.
Report Post »QuietRiot
Posted on November 13, 2010 at 12:02pmU.S. Supreme Court Antonin Scalia Luv you man!! Stay healthy live long and help us.
This guy has big balls of steel in his sack, So big that he cant go out in a lightening storm
for fear of getting struck by lightening.
I agree 100 % the 17th Ammendment needs to go… and the corruption with it.
Report Post »citizenx
Posted on November 15, 2010 at 9:05amDo you realize that the 17th Amendment was a Republican amendment? Secondly, they passed it because corporations were buying the seats… so I am curious as to how repealing the 17th amendment would solve anything.
Report Post »Republic Under God
Posted on November 15, 2010 at 6:11pmCitizenx, Republican or not, it opened the gate for campaigning and special interest. It took our eyes as citizens off our states and instead onto Washington. There becomes a Disconnect. Representatives were the ones We The People sent to DC.
Your skepticism is well-founded:
“…they passed it because corporations were buying the seats…”
Allow me to point out that your main audience in this comments board consists of “Awaken-Americans.” We have already decided that we will be holding our elected officials to the fire (and I implore you all to be especially diligent with your local governments as the best place to start cleaning up is home) and we are in it for the long haul. This is also the age of information so we have and will have (assuming the progressive efforts to censor the internet come do not find the light of day) the resources to bring light to this . Such corruption as corporate buy-offs will be the exception and not the rule when we are done restoring this country.
Report Post »R_U_4_Real
Posted on November 13, 2010 at 11:53amThe best solution is Term Limits for all Federal Officials. No more regulators, it is up to Congress to legislate; do not allow them to defer their power to unelected regulators.
Report Post »American only
Posted on November 13, 2010 at 11:02amMr. Scalia et al
Do your damned job! Defend the Constitution from the bench and bring treasonous dogs to justice!
Report Post »especially the evil WH inhabitor!
artman
Posted on November 13, 2010 at 11:01amYou people who want judges to consider legislative intent are stupid! What Scalia meant was that legislators may have all kinds of intent on overthrowing the Constitution (like claiming it is a living document that can be changed with legislatures or judges). Legislators intended on continuing slavery for a long time. WHAT MATTERS IS THE FOUNDERS INTENT! And that is what judges like Bryer want to ignore in order to “progress” without that nasty need to go through the amendment process outlined in the Constitution. Like Scalia says, legislators can do all sorts of stupid things that are not unconstitutional. And can do things that ARE unconstitutional. But they are only unconsitutional if what they do is not the intent of the Framers. Bryer sees no problems with a “living” constitution. I wonder how he would be with “living” traffic laws where the judge could change the meaning of a law when Bryer was brought in front of him.
Report Post »Rowgue
Posted on November 13, 2010 at 10:48amI would like to see the 17th amendment repealed as well. It would put the senate elections back in the hands of the state legislatures which is where it belongs. Most people are more worried about sending a senator to washington that’s going to vote the way they want on federal issues which is contrary to their duty.
And another added benefit is that you would no longer have the circus of senate elections every two years. It would go a long way to eliminating the non-stop campaign that has become modern politics.
Report Post »Smoovious
Posted on November 13, 2010 at 3:26pmit is the house that is elected every 2 years… supposed to be more responsive to the people that way.
the senate gets elected for 6 years, with terms staggered at 2 year intervals so you don’t have a wholesale change of the senate in a single election
Report Post »Libby
Posted on November 13, 2010 at 10:42amBenRush you goofed. Breyer said legislative intent should be considered. Scalia said (basically) he could give a rats a** what the legislature intended!
Report Post »obamusvobiscum
Posted on November 14, 2010 at 8:01amHey Libby, The flippin’ idiots in Congress ignore the founders while they busily create statute after statute. I don’t give a crap what their intent is. Our rights come from a Creator and not the government. If the government can give rights then it follows that it can ‘limit or eliminate’ rights.
The Founders stated inthe Declaration and the Constitution: Our Government Shall Not Tread Here.
A Stated Right (Statute) does not override our Constitutional Right.
Long Live Roberts, Alito, Scalia, & Thomas.
Report Post »sbenard
Posted on November 13, 2010 at 10:37amI was shocked that Scalia ignores legislative intent. I was disappointed to read that. When I read that, I couldn‘t help but think that that’s precisely what liberal judges do with the Constitution. They DISMISS the Founders’ intent and wrest the Constitution for their own twisted progressive ends! That’s how they are bringing slow tyranny to America — by ignoring the intent of the Founders!
Report Post »arkietech
Posted on November 13, 2010 at 10:57amIt isn’t what the Founders intended it is what they said and wrote down. You can make them “intend” anything you want. I give a big AMEN to Scalia.
Report Post »artman
Posted on November 13, 2010 at 11:03amwhat you say is exactly what Scalia was saying.
Report Post »Diamondback
Posted on November 13, 2010 at 11:08amHe was basically saying that what the legislation ACTUALLY SAYS is more important than what the legislators may have intended. For instance, a legislator brings forth a bill which is debated and amended and debated and amended. Then goes to the Senate for more debate and amendments etc ad nauseum. What may have originally been “intended” oftentimes may not survive and the bill is significantly different by the time it’s passed with dozens, if not hundreds, of items “inserted” and “added” etc. and so forth. At least that’s what I got our of it.
Report Post »kryptonite
Posted on November 13, 2010 at 2:35pmMy take is that Scalia was referring specifically to Congressional and state legislation not to Constitutional law, i.e., “what legislators intended when making a particular law.” For example, SCOTUS should not consider the intent of Obamacare, although it is very clear to me what Pelosi and Reid wanted when they crafted it (and they weren’t the ones who crafted it, anyway). Obamacare should be declared unconstitutional because Congress does not have the right to mandate health care, period.
Report Post »Fear The Voices
Posted on November 13, 2010 at 10:45pmI think the founders were smart enough to write it in a manner that should have made it self evident. It is those who wish to find ways around the law that seek to find intention or other means to reinterpret law to their liking. For example, the left uses some of their positions as means to say they were corrupt, and therefore could have only meant for an issue to be seen from this or that perspective.
Report Post »lildeb56
Posted on November 13, 2010 at 10:37amI agree with Scalia on the 17th Amendment. We should repeal that one and give the states back their Constitutional rights before the Federal government tramples on them (and us) even more.
Report Post »bobmontgomery
Posted on November 13, 2010 at 10:23amThe genius of Justice Breyer – When most legislators craft a law, the. purpose they have in mind is getting re-elected. So if you want to spend a lot of time trying to figure that out, Steve, go ahead. In fact, put all your law clerks to work rsearching what is in the minds of legislators. You are absolutely brilliant.
Report Post »heavyduty
Posted on November 13, 2010 at 10:10amI really think that if we deem them so bad that they cannot ever function in the normal population anymore. Then they should die just like they killed. The reason why it costs so much is because of all the repeals that they are allowed to have before they die. Another thing is that these judges should only be allowed to serve as long as the president is in office. Since they appointed them then when the new president should be able to appoint new judges in their place. I don’t think its cruel and unusual punishment. The convicted prisoners should die just like their victims. So they can feel what the victim felt when they died.
Report Post »Diamondback
Posted on November 13, 2010 at 10:58amI hope you’re not serious. I think you should give the idea of each President appointing the entire Supreme Court some more thought! Just think. Obamao would have ALL PROGRESSIVES on the Supreme Court, all grateful to him and willing to “interpret” whatever he wanted them to.
Seriously, think about that a bit more, please.
Report Post »MG Geo. H. Thomas, USA
Posted on November 13, 2010 at 9:46amFor sure the 17th Amendment needs to be repealed. It has cost us a fortune by not having senators be responsive to the wishes of the elected state representative who have to pay for the nonsense laws they pass. Next up it the Balanced Budget Amendment.
Report Post »LukeAppling
Posted on November 13, 2010 at 9:18amI would like to see Breyer flogged every time he ignores the Constitution.
Report Post »MiketheTrucker
Posted on November 13, 2010 at 9:08amI wonder where Beyer stands on Shari’a law?
Report Post »AzDebi
Posted on November 13, 2010 at 9:00am“Activist vs Originalist”…a year ago…Scalia and Breyer…Part 1 of 10
http://www.youtube.com/watch?v=VXeUfVhDVUM
Report Post »StonyBurk
Posted on November 14, 2010 at 7:09amAnd it was in 2001 that Justice Breyer claimed “Those more literalist Judges,who emphasize language
Report Post »history,tradition,and precedent cannot justify their practices by claiming that is what the framers wanted.”NYU School of Law. Es verdad Stephen Bryer is an evolutionary revolutionary–he is merely
evolving to better adapt to his current surroundings.In 2001 he expressed an impression of contempt
for MR.Scalia and those more literalist Jurists.
starman70
Posted on November 13, 2010 at 8:58amTERM LIMITS for EVERYONE in Washington!!! The only answer.
Report Post »justice
Posted on November 14, 2010 at 6:13amI think 4 years is enough for each president, they can do to much damage in 4 years, look what we got this time around.
Report Post »nostromo
Posted on November 13, 2010 at 8:57am1913 was a bad year for America. The 17th amendment and fed are two examples. The period from 1890 to 1913 isnt called the progressive era for nothing.
Report Post »StonyBurk
Posted on November 13, 2010 at 8:39amThe only sure way to promise law will be maintained and our Constitution honored as Supreme Law-
Report Post »is if the divided Court expunge all Justices who will not /have not understood the Law according to the
terms used-and they as they were understood when adopted.Get rid of Breyer, Ginsburge,Kagin and
their kine and one branch would be restored to reflect the framers intent.Es verdad that wise Latina woman most probably ought go as well-I seen no indication she would even know what the Constitution saysAnybody who believes in a Living ever changing Constitution is a tyrant.
Kalidor835
Posted on November 13, 2010 at 8:22amI personally think that the death penalty isn’t applied enough. How kids would still be alive if repeated sex offenses carried a death penalty?
Report Post »Kalidor835
Posted on November 13, 2010 at 8:37amThat should have read “How many kids.”
Report Post »artman
Posted on November 13, 2010 at 11:06amHave you ever noticed that the liberals are only concerned with an innocent convicted person might be put to death by mistake? You know it is simply an agenda when they have no concern about a convicted and paroled criminal killing an innocent citizen due to the fact he was let out early against the sentencing he was given.
Report Post »Fletch
Posted on November 13, 2010 at 8:04amI think Breyer might enjoy being whipped
Report Post »13thgenAm
Posted on November 13, 2010 at 8:04amthe only way to regain control of the feds is to repeal the 16th amend. also!
Report Post »robert5635
Posted on November 13, 2010 at 7:57amWe should shut down the federal government until the three branches realize who’s in power here. Obamacare is the biggest pile of nonsense that has come out of washington. All it aims to do, one way or the other, to force Americans to do their bidding, against the very oath that all of them took when they took office. I really hope and pray God steps back openly into the affairs of mankind soon, as long as these politicos have the reins, they will run us all into the ground whle they sit in the lap of luxury (need I say at our expense). Hope all the judges realize they‘ll have to face God’s judgement as well as the rest of us, and He can’t be bought off or lied to.
Report Post »felina g
Posted on November 13, 2010 at 8:13amWhat really looks scary are all of these “Executive Orders” coming out in the middle of the night and also WHO is writing them. Where is the oversight ?
Glenn sure nailed that sucker.
Report Post »StonyBurk
Posted on November 13, 2010 at 8:32amDid you notice that the Just ice who says we need to look at what motivated legislators -and made a joke suggesting Scalia doesn’t care is the same Just ice who told a captive law school audience a
Report Post »few year back that his peers who claim that the history of the Constitution and Bill of Rights can
lead us to understand what the framers were thinking were wrong Cause in the Breyer patch nobody
can say what they were thinking.”Oh what a tangled web they weave -when the Progressive intends
he will deceive.”
thepatriotdave
Posted on November 14, 2010 at 12:32amRobert…
“I really hope and pray God steps back openly into the affairs of mankind soon, as long as these politicos have the reins, they will run us all into the ground whle they sit in the lap of luxury (need I say at our expense)”
Amen to that!
For the first time in life I can honestly say that the recent election was the closest one we have had where it seemed as if “the people” truly led the way. And this is why the left HATES us tea-party folks. We are their worst nightmare come true. Cool, huh? Maybe now its time for us to lead again by forcing our politicians to obey the Constitution. We can do away with amendments without harm, but we cannot allow for anymore amendments to be added to it. Adding to the Constitution somehow always takes away peoples rights more than it protects them. Plus, giving back states rights would straighten out the more liberal states faster than anything else we could do. Imagine if a state could NOT count on any Federal dollars. California would have to close.
PatriotShops.com
Report Post »Conserving Ink
Posted on November 13, 2010 at 7:57am“We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states’ rights throughout the rest of the 20th century. So, don’t mess with the Constitution.”
Exactly! We need to repeal the 17th Amendment. Its the first item in my State’s Rights List.
Report Post »__________________________________________________________
States Rights Plan http://conserving-ink.blogspot.com/
Dustyluv
Posted on November 13, 2010 at 8:12amThe 17th ammencment repeal would be a great first step. Then start weeding out Federal programs or tossing them to the States to decide with their own money. If they want welfare in Oregon, so be it. Methinks Texas would not have it if we had a choice.
The Federal Government is a menace to free men. The Federal Governmment is the exact opposite of what it should be..Protect our shores and butt out of our business. The strong will survive and we will help the weak out of charity…The bums, drug addicts and con men of society can starve or be put in a place where they cannot hurt anyone else..We don’t need the Federalies to tell us how to run our land, or have whipping posts if we want to have them in our State!
If we had a Governor with some balls we would secede here in Texas…
Report Post »H2OBoardem
Posted on November 13, 2010 at 8:23amI agree with you and 13thgen, repeal both the 16th and 17th. Both are contrary to the original intent of the Constitution. With direct, popular election of the Senate, there is no need for the Senate. Income taxs allowed the massive growth of the federal (“general” in the original text of the Constitution – hence the phrase “general welfare”). Once upon a time, Tariffs collected by the Customs Sevice funded virtually all operations of the “general government”, thus limiting its size. These two abominations to the Constitution were the starting point for the decline of the Republic.
Report Post »snowleopard3200 {mix art}
Posted on November 13, 2010 at 9:05amIn agreement, restoration of the state rights, and stripping the Federal government of any and all power and authority not directly given to it by the Constitution is needed. Reign the federals in, and let the states directed by the will of We The People hold the power, as meant to be.
Report Post »benrush
Posted on November 13, 2010 at 9:09amYes, repeal 16th , 17th, and the Federal Reserve Act of 1913. We have lived under this mockery of the Constitution long enough.
Scalia is stupid to suggest that legislative intent is irrelevant. Judges like him should be impeached.
jds7171
Posted on November 13, 2010 at 11:05am@ benrush.
Report Post »Legislature intent is irrelevant because you have stupid people in the united states that need to be lead by their hands. Then you have lawyers who try and twist everything they hear or read. Then you have people like obama. They intend to make this country strong, but they are not succeding. We can’t let Obama and the left get away with this mess because there intent was in the right position. Intent is worthless unless you are trying to prove that a person committed a crime. Even then a murder still kills someone even if its 1st, 2nd or 3rd degree murder. Intent is just an excuse for being an idiot.
tobywil2
Posted on November 13, 2010 at 11:31amThe following quote from Woodrow Wilson, in 1913, validate your comments about the origin of Progressism and provides the reason for the decline of the American revolution.
“If the government is to tell big business men how to run their business, then don’t you see that big business men have to get closer to the government even than they are now? Don’t you see that they must capture the government, in order not to be restrained too much by it? Must capture the government? They have already captured it.”
The quote is from an early wannabe tyrant, Woodrow Wilson in 1913. Since then each encroachment on our individual liberty has caused problems that have been used to justify more tyranny.
http://commonsense21c.com/
Report Post »dcwu
Posted on November 13, 2010 at 12:09pmGovernment’s sole Purpose:
“ to secure these rights Governments are instituted ”
– Declaration of Independence, Jefferson, Franklin, Adams, Congress, 1776
Report Post »dcwu
Posted on November 13, 2010 at 12:27pmApply Occam’s Razor.
Repeal the 17th Amendment and the Senate will stop unfunded mandates.
Repeal the 16th Amendment and the Federal Government will shrink to its purpose.
Let us begin here.
Report Post »yellerhammer
Posted on November 13, 2010 at 12:37pmThe geat thing about the constitution is it will still be there but a new amendment will squash it and in the future we can see where we were and where we are going.
Report Post »thepatriotdave
Posted on November 14, 2010 at 12:19amSimply put… “restoration of the state rights, and stripping the Federal government of any and all power and authority not directly given to it by the Constitution is needed.”
Thank you snowleopard3200 for stating the case so short and sweet. This is the type of language that the average citizen can digest and understand without having to ask the Nephew in his second year of Law School “what the hell does that mean?”. Part of the reason Americans get suckered into believing things, can be directly blamed on the Lawyerly language used by our politicians, especially the lawmakers. The next time you purchase a new automobile make sure you read every piece of paper put in front of you to sign. Odds are that at least of one third of it, will read like mumbo-jumbo to you, me, and most of the general population.
PatriotShops.com
Report Post »rebel
Posted on November 14, 2010 at 1:47amthat would take an act of God! no career politician wants that…and unfortunately that’s 99% of congress
Report Post »ozz
Posted on November 14, 2010 at 5:00amRepeal 16th , 17th, and the Federal Reserve Act of 1913. Those that argue that we need taxes for fire and police etc. The states would be perfectly capable to levy their own taxes. If they taxed to little or too much people could move to a state that suited their desire for freedom or security. Let the states compete in 50 different ways to see what is best. Let the people vote with their feet.
Report Post »THE ONLY ONES WHO DO NOT LIKE THIS ARE THE FREELOADERS. They want us to have no way to leave them in the state they wreck to a free state with no freeloaders.
thunder4570
Posted on November 14, 2010 at 8:33amBreyer countered, saying judges need to go back and find out the purpose legislators had when crafting a bill.
Report Post »Some one need to inform him of his job description, The only thing they are to interpret is if the law is constitutional or not! not what they may have intended.
justawhoaman
Posted on November 14, 2010 at 10:19am@BENRUSH: “Scalia is stupid to suggest that legislative intent is irrelevant. Judges like him should be impeached.”
Breyer suggests that it is democratic to understand legislative intent. This is a REPUBLIC, a nation of laws, not a democracy. We are not a nation of mob rule (yet!) Scalia is absolutely correct in suggesting that following the intent of legislators is foolish. The SCOTUS is charged with interpreting the Constitution, not following what the morons in Congress had in mind.
Good grief.
Report Post »citizenx
Posted on November 15, 2010 at 8:57amHow exactly would repealing the 17th Amendment solve anything at all?
Report Post »Republic Under God
Posted on November 15, 2010 at 4:42pm@Benrush
Legislative intent is abstract. In a hundred years, the context of the law one writes is lost and therefore its intent. Then the debate ont he law stays stuck in the intangibles. Legislative intent takes us down a progressive road. At the end of the day, the law is the ink that dries on the paper it was printed on, not the intent that the lawmaker carried with them. Our justices interperate laws not lawmakers. This is similar to Social Justice vs. Equal Justice. Legislative intent falls into the social justice camp.
Report Post »