The 8th amendment covers punishment. None of the people tortured have been convicted of any crime. Cruel and unusual treatment of random people picked up off the street is perfectly constitutional. So we're ok.
No, the Eighth Amendment doesn't cover anything to do with anybody who hasn't been convicted. But the 14th damn well should. I'm not sure exactly what Scalia's answer to that would be, probably something to do with people beating the shit out of suspects in the 18th century.
I think the idea is that it's to obtain intelligence, not to punish. Most people locate the generalized constitutional prohibition on any torture ever under the 5th amendment. There's also the 9th amendments statement that "The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people"--Scalia's basic judicial philosophy is to construe the enumeration in the Constitution of certain rights to deny or disparage others.
(5th for the federal gov't, 14th for the states, that is.)
Scalia's birthday is next week. He'll be turning 72. I'm hoping he celebrates with a massive bucket of deep-fried chicken lard.
The Constitution means whatever the Supreme Court says it does. Republicans favor originalist judges, who are attentive to the Framers true intent of assisting contemporary Republicans.
5: Be careful what you wish for; it's not clear he's the worst of the Righties.
7: The worst of the righties are younger.
"The Constitution means whatever the Supreme Court says it does."
And if the Roberts Court uses standing doctrine, states secret privilege, etc. to avoid hearing key cases, it means whatever the classified Office of Legal Counsel memo says it means.
5: Nah. How bout he gets wasted, then goes for an exciting high-speed drive?
7: With luck, the Dems in Congress would just stall until after the election. HA.
Seriously, y'all, pacing. The frequency of posts has been a little overwhelming in the last few days.
5: Nah. How bout he gets wasted, then goes for an exciting high-speed drive?
I vote for a hooker with triathlon-worthy stamina.
How bout he gets wasted, then goes for an exciting high-speed drive pheasant hunting with Dick Cheney?
11: I'm in favor of the frequency. Distracts a little from the Obama/Clinton bitterness.
I'm going to guess that there's plenty of evidence that the original intent of the framers was that torture was not an acceptable tool of the state. Opposition to torture as a means of extracting confessions was a big cause in the 18th century - Louis XVI was abolishing it in France at around the time of the constitutional convention.
The 9th Amendment ought to cover it, I think.
Also, what about the fifth amendment - "nor be deprived of life, liberty, or property, without due process of law"?
Louis XVI was abolishing it in France
Foreign jurisprudence! Foreign jurisprudence!
16: seriously? Antonin Scalia is more authoritarian than Louis XVI? Good Lord.
14: I suppose. It does also seem to mean more a manageable number of comments on some threads.
15: Ah, what do the goyim know from schmaltz?
I'm going to guess that there's plenty of evidence that the original intent of the framers was that torture was not an acceptable tool of the state.
deep-fried chicken lard
Stras is quite obviously not a Southerner.
3: I think the idea is that it's to obtain intelligence, not to punish.
Seems to me that when you torture somebody its basically a form of punishment. If you are torturing somebody to make them talk, you are punishing them for the "crime" of not giving up information.
I was thinking 5th amendment, too, to the extent of the no compelled incrimination stuff. But, of course, if they torture you to get information, but don't attempt to use that information against you in a court of law, self-incrimination never comes into play.
Of course, where the Geneva Convention applies, isn't there a constitutional provision that essentially incorporates such treaties into the constitution?
26: Article VI says that treaties are the supreme law of the land, but the Geneva Convention pertains to prisoners of war and civilians in time of war. I think that Scalia would argue that interrogees are neither.
Treaties are binding law but they're not actually part of the Constitution--normally you'd call a treaty violation "illegal," but not in itself "unconstitutional."
Why are you guys eating up this Scalia nonsense? Torture clearly falls within the purview of the 8th amendment, although it falls within the purview of the 5th as well.
Scalia's basid idea is that "punishment" = "thing meted out by a judge." This is a minority position that is not accepted by the rest of the court (save Thomas, of course). So, things that happen to you in prison, if they are not part of your sentence, can not constitute 8th amendment violations. That's nonsense, and doesn't comport with current law that says, for example, that depriving prisoners of medical care is an 8th amendment violation.
Now, the jurisprudential trend is to treat Bad Things That Happen as 5th amendment issues if they're pre-trial, 8th amendment if they're post-trial. I suppose this makes sense, but I think it's a pretty narrow view of "punishment" to think that it can only happen to people who have a conviction. People detained and awaiting trial are being punished because they are suspected of a crime, rather than convicted of committing one.
We should just pass an amendment saying that everything bad is unconstitutional. Bet that'd stick in his craw!
everything bad is unconstitutional
Mushroom pizza: unconstitutional!
I know I've said this before, but I'd just like to reiterate for anyone who doesn't yet think Scalia is an asshole the following:
1. In one case, Scalia said that the only constitutional right that survives incarceration is the 8th amendment.
2. In another case, Scalia said that the 8th amendment only applies to things that are meted out by a judge, meaning, once you are convicted, the 8th amendment doesn't apply to you.
Therefore, if you are convicted of a crime, you have no constitutional rights. Seriously.
Mushroom pizza is bad? Doesn't it depend on the kind of mushroom?
Mushroom and sausage pizza is objectively good.
m leblanc might also understand Scalia's views on whether a suspect is in custody:
A suspect is only in custody if they have been read their Miranda warnings.
That one is easy, Will. Miranda warnings are only required if you are in custody. Thus, if warnings haven't been given, you can't have been in custody so the warnings weren't required.
Chapel Hill police have identified a woman found dead near the University of North Carolina campus Wednesday morning as the university's student body president. UNC senior Eve Carson, 22, was found shot multiple times in the head about a half-mile from campus.
I know that, Di. Why did you have to ruin the mystery for the non lawyers?
there's plenty of evidence that the original intent of the framers was that torture was not an acceptable tool of the state.
Absolutely. The English common law had banished torture in the 17th century, as part of the same reaction against Stuart absolutism that gave us many of the habeas decisions being traduced today by Charles I's spiritual heirs. The Framers knew this stuff backwards & forwards.
Notice how we aren't hearing to much "original intent" discussion now? Suddenly, the Constitution is an evolving, flexible document due to "the GREATEST THREAT TO US EVAR!!"
41: Hmm, the Federalist Society must be neutral on this issue. Therefore, the tie goes to fascism.
29: SK is known as a "crypto-Jew" among many tribe members.
(SK also knows that you can make excellent matzoh ball soup without schmaltz.)
41: 9/11 changed everything, hadn't you heard?
Will, I'm hearing a lot of right-wing argument about how this is what the Constitution was supposed to mean all along. So, for instance, literally every president up until the current one underestimated their power in times of war and nobody ever, ever recognized it or bothered to tell, say, St. Ronald of Santa Barbara. But at the same time, this isn't innovation at all, but a proper reading of the obvious text, they say.
This kind of argument really is easier to make when one doesn't believe in truth at all, or thinks that truth is whatever serves the cause, I guess.
Liberals think they're relativists? We'll show them relativism!
No, Charles I famously asked a panel of judges whether it would be legal to torture a suspect to get information related to a very serious national security related crime. They said no, and he didn't do it. Bush/Cheney: Worse that the Stuarts.
Even if you couldn't make an argument under the Bill o Rights, there's always the Convention Against Torture, to which the US is bound. There's no legal ambiguity: torture is a crime, and the people acting like it's OK are showing their stripes.
I've never been remotely impressed with Justice Scalia. He shows no appreciation, imo, for either the rule of law, or the purpose of the rule of law as an essential part of the American experiment. If I believed in Satan, Justice Scalia is pretty much exactly the form I would expect him to take: clever, bullying, pandering to power, basically evil.
17
"Also, what about the fifth amendment - "nor be deprived of life, liberty, or property, without due process of law"? "
Was nuking Hiroshima constitutional? I don't believe the fifth says as much as you think.
Was nuking Hiroshima constitutional?
I'm reasonably certain the Constitution of the United States doesn't apply to Japanese citizens.
Doesn't apply to Japanese citizens in Japanese territory under Japanese control, at any rate.
And the 5th amendment doesn't render war illegal; deaths caused through the legal waging of war (which, with Hiroshima, there are questions about, but leaving those to one side) wouldn't be 'without due process of law'.
49 50 51
Was Scalia talking about torturing US citizens?
Bush / Cheney: Worse that the Stuarts.
And whatever happened to King Charles I, pray tell? Whatever you choose to say be held against you.
Scalia: My present theory of the neo-cons is that Leo Strauss was a surrogate or stand-in and that Karl Schmitt (an actual Nazi) is the real deal. There are two books out about the Strauss-Schmitt relationship, and it seemed creepily friendly. (Strauss had trouble figuring out that after having become a Nazi, Schmitt would no longer want to communicate with him.
The Fifth Amendment applies to "persons."
I didn't mean the concept "your mom", I meant your mom.
Seriously, though, 49 is a common misunderstanding of the US Constitution.
And it's kind of where Scalia is on this: the Dred Scott position -- these people have no rights we are bound to respect. Wrong as a matter of law, of history, and of morality. And wrong as a matter of practicality in the situation we are in.
And further to 59, I've never seen any indiaction that Justice Scalia believes in any of these, except as a means to an end. Satanic.
I'd better go back to work, or I might say something immoderate.
Of course, as Charley knows, the D.C. Circuit recently ruled that Guantanamo detainees are not "persons." That court is an even more compelling "suck it up & vote for the Democratic nominee" argument than the Supremes, in some ways.
I've never been remotely impressed with Justice Scalia.
The source of reports that Scalia is some awesome conservative intellectual always amazed and repulsed me. Where does this come from?
62: Associate Justice Scalia.
Always use the "Associate", becuase you know it just burns him right up.
I heard the original BBC segment where Scalia made these remarks while driving, and it's kind of a miracle that I didn't kill myself or someone else considering how angry it made me. But pretty much what is said in 1 and 3 is what he explicitly said. His basic argument was:
1. The Eighth Amendment isn't about interrogation or finding out information. It's about punishment for those convicted of crimes. In Scalia's opinion, the Constitution doesn't really address interrogation or information-seeking at all.
2. But just to add a bit more, Scalia noted that it's not really clear what "cruel and unusual" actually means.
--------
The part of the interview that really blew my stack was his argument that the Constitution is basically a parochial and nationalist argument and that does not have and was never meant to have any significance at all--even inspirational significance--for anyone outside the borders of the United States. In fact, he pretty much argued, it doesn't even legally constrain the actions of the United States government outside of those borders. (E.g., as an American official, you are not bound by the Constitution if you're not acting within the United States or acting towards American citizens). Hence anything at all can happen in Gitmo, because Gitmo is: a) outside our borders and b) the people in it aren't (mostly) American citizens.
62: I think it's largely a question of shamelessness on Scalia's part, which in turn feeds off the hero-worship he gets from Federalist types. He admittedly has more (public) personality than the other eight justices combined, and that makes him stand out in a way that's mistaken for sheer intellect. Even liberal legal academics have tended to give him way too much credit for smarts. Tushnet's popular-audience book on the Court from a couple years ago ("Antonin Scalia isn't as smart as he thinks he is") is very good on this.
On further reflection: you know, Clarence Thomas gets a lot of shit, much of it well-deserved. But it may be that he actually believes a certain amount of the "originalist" philosophy and acts on it with some degree of philosophical consistency.
Scalia, on the other hand, clearly has a philosophy that says, "Whatever outcome I and my political partners want, I will find a way to argue for. I could give a shit about originalism or any other consistent legal philosophy: my ends dictate my means, and my ends are that I and my social class get everything we want, however and whenever we want it." I have no idea why this guy has a reputation of being a keen legal mind guided by consistent principles. There's absolutely nothing consistent about him.
claiming that it's "absurd" to say that the government "can't stick something under the fingernails" of a suspect to get information.
Because it was good enough for the Viet Cong, right?
I would like him to say that to John McCain. To McCain's face. On hidden camera.
Here's one thing I thought as I listened to Scalia.
Scalia served up a steaming heap of the usual ticking time-bomb scenario. (And the BBC interviewer, bless his heart, didn't let him get away with it: he basically said, "Yeah, right, like that ever happens in real life, asshole: how often do we KNOW that someone KNOWS?")
This is where Scalia made the "absurd" comment about sticking things under fingernails. That if we knew about the ticking time bomb, are you really saying you can't torture people?
Here's my reply: if you really know, I mean, REALLY KNOW, that someone knows about a nuclear bomb planted in a city, then yes, go ahead and stick shit under his fingernails until he coughs up the information. And then man up after the bomb gets found and admit that you tortured the guy for the information and take whatever legal consequences come your way as a result.
Why do we have to make it *legal* for you to do something drastic under unusual circumstances? Why not leave unusual desperate choices for unusual desperate circumstances, and sort it out afterwards? What makes Scalia's comments so ghastly and obscene is the rush to give blanket legal authorization to a broad category of actions in order to cover what anyone would acknowledge is a rare circumstance.
I'm perfectly willing to think through the case of a soldier or policeman who feels they made a hard, desperate choice in the heat of the moment and would like that to be part of how they are held legally accountable for breaking the law. That's vastly different than granting them prior universal permission by saying there is no law to break. That ANY justice on the Supreme Court, whatever his political convictions, doesn't see it that way strikes me as fucking grotesque.
I would like him to say that to John McCain. To McCain's face. On hidden camera.
Bah. McCain would chuckle and pat him on the back. The idea that McCain opposes the torture of other people is wildly exaggerated.
He admittedly has more (public) personality than the other eight justices combined, and that makes him stand out in a way that's mistaken for sheer intellect.
He has too much of a public personality. I'm really disturbed by this new 'celebrity justice' phenomenon that Scalia seems to embody. I know that he has had to recuse himself from at least a couple of specific cases, because he had already opined/pontificated about the relevant precedents in the public sphere. More broadly, in his numerous interviews and speaking engagements, he makes it abundantly clear that he is already committed to an ideological, if not a downright partisan, interpretative framework.
I'm perfectly willing to think through the case of a soldier or policeman who feels they made a hard, desperate choice in the heat of the moment and would like that to be part of how they are held legally accountable for breaking the law.
Yes, I've been saying this for years. If Wannabe Jack Bauer really is facing a ticking time bomb scenario, that's what the power of the pardon is for. He'd just better be damn sure he's right.
I'm really disturbed by this new 'celebrity justice' phenomenon that Scalia seems to embody.
Much as I loathe Scalia, this I don't think is such a bad thing. The judiciary is by far the most opaque branch of gov't. (Although the current executive branch is certainly trying to edge them out.) I don't think this is a good thing in general, better for the public (to the extent it cares, which isn't much) to know that Scalia is a putz and a psychopath, than to have everyone pretend judges are just passionless law-interpretation machines. What good does it do for Scalia to pretend he doesn't have (or just keep silent about) the views/commitments he obviously has?
Plus, anything that causes Scalia to recuse himself is likely to be a good thing! (I think this has only happened once on this basis, in the pledge of allegiance case, and there he had commented on the specific case rather than relevant precedents/principles. He's been asked to recuse himself on this basis a number of other times, but he's declined as far as I can recall.)
69: The idea that McCain opposes the torture of other people is wildly exaggerated.
It's always been my suspicion that McCain is more or less OK with torture because he knows (or thinks he knows) that it works - because, when he was tortured, he spilled everything he knew in short order. After all, how much do we really know about McCain's interrogations except from McCain's own accounts? And if he held out and didn't break (as he says) he would have irrefutable first-hand evidence that torture doesn't always work, and he wouldn't want the US to use it. (Unless of course he thinks it didn't work on him because he's a high-flying Navy aviator, and inferior beings (all non-Navy aviators) would crack in short order).
This smear is available to whoever manages to win the Democratic nomination, free of charge.