Scalia opens up on '60 Minutes'

Justice Antonin Scalia on Sunday characterized himself as a social conservative and "a law-and-order guy" whose views do not impact his interpretation of the Constitution.

In an interview on CBS' "60 Minutes," Scalia addressed issues from abortion to flag-burning.

Were he to approach his job differently, Scalia said, he would adopt the position of abortion opponents who interpret the Constitution to mean that a state must prohibit abortion.

But the authors of the Constitution did not write about abortion, so he does not support the approach favored by abortion opponents, said the justice, who is promoting a new book, "Making Your Case: The Art Of Persuading Judges.

Similarly, Scalia upholds a First Amendment right to flag burning, though he doesn't personally like the practice.

Scalia is known for his colorful writing style, especially in dissent. All his colleagues have been targets of his biting criticism, a subject that Justice Ruth Bader Ginsburg addressed on camera.

"As annoyed as you might be about his zinging dissent, he's so utterly charming, so amusing, so sometimes outrageous, you can't help but say I'm glad that he's my friend or he's my colleague," said Ginsburg.

I used to admire Justice Scalia, but the more he talks about the Constitution, the more disappointed in him I get. Regardless that I understand that Scalia is an expert on Jefferson, Scalia's example concerning the constitutionality of flag-burning doesn't ring true with the intentions of the Founders as reflected in Jefferson's writings. Based on Jefferson's writings, what people don't understand today is that the states had actually reserved for themselves the power to reasonably limit our 1st A. freedoms regardless that they prohibited the federal government from doing so. See for yourself.

"3. Resolved that it is true as a general principle and is also expressly declared by one of the amendments to the constitution that ‘the powers not delegated to the US. by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people’: and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the US. by the constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, & were reserved, to the states or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated rather than the use be destroyed; and thus also they guarded against all abridgement by the US. of the freedom of religious opinions and exercises, & retained to themselves the right of protecting the same, as this state, by a law passed on the general demand of it’s citizens, had already protected them, from all human restraint or interference: ..." --Thomas Jefferson, Kentucky Resolutions, 1798. http://tinyurl.com/oozoo

So given that Jefferson had noted that the states had reserved for themselves the power to reasonably limit free speech, for example, state laws prohibiting flag burning are not far-fetched, regardless if the states prohibited the feds from making such laws.

And if you buy the USSC's politically correct bluff that the 14th A. applied the BoR to the states, meaning that the 1st A. now prohibits certain state powers as well as federal, then guess again. In fact, let's hear it from John Bingham, the main author of Sec. 1 of the 14th Amendment.

"The adoption of the proposed amendment will take from the States no rights (emphasis added) that belong to the States." --John Bingham, Appendix to the Congressional Globe http://tinyurl.com/2rfc5d
"No right (emphasis added) reserved by the Constitution to the States should be impaired..." --John Bingham, Appendix to the Congressional Globe http://tinyurl.com/2qglzy
"Do gentlemen say that by so legislating we would strike down the rights of the State? God forbid. I believe our dual system of government essential to our national existance." --John Bingham, Appendix to the Congressional Globe http://tinyurl.com/y3ne4n

So whereas the federal government has no power to limit our 1st A. protections, the states do, regardless of politically correct interpretations of the 14th Amendment. However, USSC opinions dealing with state power issues indicate that judges must now balance 10th A. protected states powers with 14th A. personal federal protections.

"'No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.' It is only the privileges and immunities of citizens of the United States that the clause relied on was intended to protect. A state may pass laws to regulate the privileges and immunities of its own citizens, provided that in so doing it does not abridge their privileges and immunities as citizens of the United States." --Presser v. State of Illinois, 1886
"Conflicts in the exercise of rights arise and the conflicting forces seek adjustments in the courts, as do these parties, claiming on the one side the freedom of religion, speech and the press, guaranteed by the Fourteenth Amendment, and on the other the right to employ the sovereign power explicitly reserved to the State by the Tenth Amendment to ensure orderly living without which constitutional guarantees of civil liberties would be a mockery." --Justice Reed, Jones v. City of Opelika, 1942. http://tinyurl.com/yvtqoy

Again, regardless of the 14th A., I still see constitutional room for state laws which prohibit flag-burning, despite what Justice Scalia says about the so-called 1st A. right to burn flags.

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