Some of the questions were revealing. Like when Morgan insisted that women had no rights at the time of the Founding and that what he really means of course is abortion. Here is how it went, and how Scalia ruled:
Let’s turn to Roe v. Wade, because you, Justice Scalia, you had very strong opinions about this at the time. I know you do now.
Why were you so violently opposed to it?
SCALIA: I — I wouldn’t say violently. I’m a peaceful man.
SCALIA: You mean adamantly opposed.
Basically because the theory that was expounded to impose that decision was a theory that does not make any sense, and that is namely the theory of substantive due process. There’s a due process clause in the Constitution, which says that no person shall be deprived of life, liberty or property without due process. That is obviously a guarantee not of — not of life, not of liberty, not of property. You can be deprived of all of them. 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 that no process would suffice to take them away.
And that was the theory used in “Roe v. Wade.” And it — it’s a theory that is simply a lie. There — there’s — the world is divided into substance and procedure.
MORGAN: Should abortion be illegal, in your eyes?
SCALIA: Should it be illegal?
Well, I — I don’t — I don’t have public views on what should be illegal and what shouldn’t. I have public views on what the Constitution prohibits and what it doesn’t prohibit.
MORGAN: But I mean, the Constitution, when they framed it, they didn’t even allow women to — to have the right to vote. I mean, they gave women no rights.
SCALIA: Oh, come on, no rights?
MORGAN: Did they?
SCALIA: Of — of course. They were entitled to due process of law.
GARNER: All kinds of rights.
SCALIA: You couldn’t — you couldn’t send them to prison without the same kind of a trial that a man would get.
MORGAN: But the — but, again, it comes back to changing times. The founding fathers were never going to have any reason, at that time, to consider a woman’s right to keep her baby or to have an abortion.
It wouldn’t have even entered their minds, would it?
SCALIA: What — I — I don’t know why. Why wouldn’t it?
MORGAN: Because at the time, it was…
SCALIA: They — they didn’t have wives and daughters that they cared about?
MORGAN: They did, but it was not an issue that they would ever consider framing in the Constitution.
SCALIA: Oh, I don’t know that…
MORGAN: But when women began to take charge in the last century, of their lives and their rights and so on, and began to fight for these, everybody believed that was the right thing to do, didn’t they? I mean, why would you be instinctively against that?
SCALIA: My view is regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is 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, some states didn’t. What Roe v. Wade — Wade said was that no state can prohibit it. That is simply not in the Constitution. It was one of those many things — most things in the world — left to democratic choice. And — and the court does — does not do democracy a favor when it takes an issue out of democratic choice…
SCALIA: Simply because it thinks–
MORGAN: But how do…
SCALIA: — it should not be there.
MORGAN: But how — how do you, as a conservative Catholic, how do you not bring your personal sense of what is right and wrong to that kind of decision? Because clearly, as a conservative Catholic, you’re going to be fundamentally against abortion.
SCALIA: Just as the pro-choice people say the Constitution prohibits the banning of abortion, so, also, the pro-life people say the opposite. They say that the Constitution requires the banning of abortion, because you’re depriving someone of life without due process of law.
I reject that argument just as I reject the other one. The Constitution, in fact, says nothing at all about the subject. It is left to democratic choice.
Now, regardless of what my views as a Catholic are, the Constitution says nothing about it.