# Justice Scalia on 60 Minutes: Scary Quote **URL:** \ **Category:** Great Debates\ **Created:** [April 28, 2008, 5:29am UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193 "2008-04-28T05:29:42Z")\ **Posts on this page:** 20\ **Page:** 22
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [May 8, 2008, 5:43pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/421 "2008-05-08T17:43:19Z")
[QUOTE=John Mace] And yet you offer no evidence of said Founder’s\* abhorrence, ignoring much evidence to the contrary… [/QUOTE] Well, there’s the 8th Amendment itself, isn’t there? If they did not disapprove and/or abhor cruelty, why forbid its application as punishment? Not making a whole lot of sense here, **John**. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 8, 2008, 6:10pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/422 "2008-05-08T18:10:43Z")
[QUOTE=elucidator] Well, there’s the 8th Amendment itself, isn’t there? If they did not disapprove and/or abhor cruelty, why forbid its application as punishment? Not making a whole lot of sense here, **John**. [/QUOTE] Oh, **elucidator** , almost forgot: one more tiny point, just for your consideration. What’s the TITLE of the Eighth Amendment? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 8, 2008, 6:16pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/423 "2008-05-08T18:16:47Z")
[QUOTE=elucidator] Well, there’s the 8th Amendment itself, isn’t there? If they did not disapprove and/or abhor cruelty, why forbid its application as punishment? Not making a whole lot of sense here, **John**. [/QUOTE] Once again, this is not something they created. This was, to the phrase, a part of English Common Law at the time. Yes, they were against cruelty, but no more so than any Englishman of the era. So there is no evidence, in that phrase alone, that they were introducing some newer, higher standard. Had they used some other, more restrictive phrasing, perhaps you’d have a point. But they didn’t. You’ve given us no reason to interpret that phrase any differently than it was interpreted in Colonial times or in England. So they abhorred cruelty as punishment for crimes, but that abhorrence did not prevent them from allowing public flogging, the lopping off of ears, and traffic in human slavery. Not only allowing that last practice but participating in it. You don’t know them by their “works”, you know them by their deeds. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [May 8, 2008, 6:30pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/424 "2008-05-08T18:30:44Z")
[QUOTE=Bricker] Oh, **elucidator** , almost forgot: one more tiny point, just for your consideration. What’s the TITLE of the Eighth Amendment? [/QUOTE] I haven’t the slightest idea what your point is here. How about you just tell me? Best I can tell, the title is “Eighth Amendment - Cruel and Unusual Punishment”. Do I get a cookie? ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [May 8, 2008, 6:45pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/425 "2008-05-08T18:45:10Z")
[QUOTE=John Mace] Once again, this is not something they created… [/quote] I said it was? Cite, please. > [@](#): > > …This was, to the phrase, a part of English Common Law at the time… OK doke. > [@](#): > > …Yes, they were against cruelty,… Ding! Ding! Ding! Do you accept Cookie Pal? > [@](#): > > …but no more so than any Englishman of the era. So there is no evidence, in that phrase alone, that they were introducing some newer, higher standard… How does my argument fail if this attitude is not an original and brand spanking new development? I said it was because they were Enlightenment gentlemen, you say it was because it was a commonly held opinion. OK, so what, either way? > [@](#): > > …Had they used some other, more restrictive phrasing, perhaps you’d have a point. But they didn’t. You’ve given us no reason to interpret that phrase any differently than it was interpreted in Colonial times or in England… What _are_ you talking about? Now, not only do I have to prove it more original, but more restrictive? To what end? Why? How does that even\* remotely \* impact my argument? > [@](#): > > …So they abhorred cruelty as punishment for crimes, but that abhorrence did not prevent them from allowing public flogging, the lopping off of ears, and traffic in human slavery. Not only allowing that last practice but participating in it… Is this your first experience with human hypocrisy? > [@](#): > > …You don’t know them by their “works”, you know them by their deeds. Uh, **John**? That’s what the word means. “Deeds” = “works”, at least in the Sunday School I went to. Standard, white bread Methodist, almost generic. ---
**Author:** ![mlees](https://avatars.discourse-cdn.com/v4/letter/m/ba8739/32.png) [@mlees](https://boards.straightdope.com/u/mlees)\ **Post date:** [May 8, 2008, 6:46pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/426 "2008-05-08T18:46:26Z")
[QUOTE=Bricker] Oh, **elucidator** , almost forgot: one more tiny point, just for your consideration. What’s the TITLE of the Eighth Amendment? [/QUOTE] “Article the Eighth”? ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [May 8, 2008, 6:52pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/427 "2008-05-08T18:52:30Z")
[QUOTE=mlees] “Article the Eighth”? [/QUOTE] Damn! Look, I was just going to say that. On the tip of my, ah, keyboard. Oh, OK, give **mlees** the cookie. No fair! ---
**Author:** ![mlees](https://avatars.discourse-cdn.com/v4/letter/m/ba8739/32.png) [@mlees](https://boards.straightdope.com/u/mlees)\ **Post date:** [May 8, 2008, 6:53pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/428 "2008-05-08T18:53:07Z")
[QUOTE=mlees] “Article the Eighth”? [/QUOTE] Nope. No cookie for me either. [http://www.usconstitution.net/const.html#Am8](http://www.usconstitution.net/const.html#Am8) > **[America's Founding Documents](https://www.archives.gov/founding-docs)** > > These three documents, known collectively as the Charters of Freedom, have secured the rights of the American people for more than two and a quarter centuries and are considered instrumental to the founding and philosophy of the United States. ... Just says “Amendment VIII” here… ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [May 8, 2008, 6:55pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/429 "2008-05-08T18:55:49Z")
**Bricker** raises a fine point. We are arguing over what the Constitution says and not what the law says - when the law is what will govern police and government behavior, and the Constitution the ultimate composition of that law. So the correct answer is Title 42. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [May 8, 2008, 6:57pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/430 "2008-05-08T18:57:19Z")
Is that it, **Bricker**? Its a Douglas Adams riff? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 8, 2008, 7:02pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/431 "2008-05-08T19:02:41Z")
[QUOTE=mlees] Nope. No cookie for me either. [http://www.usconstitution.net/const.html#Am8](http://www.usconstitution.net/const.html#Am8) > **[America's Founding Documents](https://www.archives.gov/founding-docs)** > > These three documents, known collectively as the Charters of Freedom, have secured the rights of the American people for more than two and a quarter centuries and are considered instrumental to the founding and philosophy of the United States. ... Just says “Amendment VIII” here… [/QUOTE] I’m sorry. Disregard this brilliant observation of mine. I read commentary about the original draft of the amendment’s language, and I completely missed that the title didn’t end up saying something about criminal cases. Belay my last. ---
**Author:** ![mlees](https://avatars.discourse-cdn.com/v4/letter/m/ba8739/32.png) [@mlees](https://boards.straightdope.com/u/mlees)\ **Post date:** [May 8, 2008, 7:05pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/432 "2008-05-08T19:05:35Z")
[QUOTE=Bricker] I’m sorry. Disregard this brilliant observation of mine. I read commentary about the original draft of the amendment’s language, and I completely missed that the title didn’t end up saying something about criminal cases. Belay my last. [/QUOTE] Can I get a token cookie? How 'bout an animal cracker? ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 8, 2008, 7:17pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/433 "2008-05-08T19:17:56Z")
Why is anyone bothering to continue the discussion with **elucidator**? The assertion of that poster is unsupported by any evidence whatsoever. **elucidator** assumes certain facts not in evidence, uses these assumptions to reach a determination about the purpose of the amendment which it has never been found to have, and then defies everyone to contradict his conclusion (which, of course, can’t be contradicted because you can’t attack the fundamental underpinnings of the conclusion, since the assumptions upon which it is based come out of his/her mind entirely). Unless and until **elucidator** can support the quaint notion that the people who wrote up and put into effect the Bill of Rights of 1791 (of which the Eighth Amendment is a part; please note that this means discussing the Enlightenment of the Constitutional Convention is irrelevant - we need to discuss the Enlightenment of the Congress of 1791 which passed the amendment, and the Englightenment of the various state legislatures of 1791 which ratified it) intended by the Eighth Amendment to cover all forms of torture because of their advanced notions of how society should behave, then the assertions **elucidator** makes should elicit nothing more than a simple, “yeah, whatever.” I mean, I can make things up, too; they shouldn’t result in any more attention. 😉 ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [May 8, 2008, 7:37pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/434 "2008-05-08T19:37:39Z")
Whoa, big horse. I don’t claim to expand the Amendment beyond its clear purpose, only that the effort to make such an Amendment reveals the mindset of the Founders. i.e., a clear aversion to cruelty. An aversion so marked that the go the extra step and deny its application as punishment. If they will forbid its appication to the least worthy of us (criiminals), we may fairly assume that they were more or less generally opposed to cruelty and torture as an instrument of governance. If you have evidence to the contrary, bring. Failing that, you are equally free to cast vague aspersions on my character and posting style. If you have nothing better to do. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 8, 2008, 7:59pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/435 "2008-05-08T19:59:54Z")
[QUOTE=elucidator] Whoa, big horse. I don’t claim to expand the Amendment beyond its clear purpose, only that the effort to make such an Amendment reveals the mindset of the Founders. i.e., a clear aversion to cruelty. An aversion so marked that the go the extra step and deny its application as punishment. [/quote] Well, it’s “clear purpose” is to limit the punishment given to convicted criminals. Unless, of course, you choose to ignore the historical context of that phrase, when it’s history is well documented. It’s one thing to be ignorant of that context, it’s another to continue to ignore it once it has been explained. > [@](#): > > If they will forbid its appication to the least worthy of us (criiminals), we may fairly assume that they were more or less generally opposed to cruelty and torture as an instrument of governance. Being as how you’re big on admonishing people for trying to read the minds of others, why are you trying to do that here? It isn’t necessary to read anyone’s mind when we know that the self incrimination clause in the 5th is meant to prevent the torturing of the accused. ---
**Author:** ![jimpatro](https://avatars.discourse-cdn.com/v4/letter/j/b9e5f3/32.png) [@jimpatro](https://boards.straightdope.com/u/jimpatro)\ **Post date:** [May 8, 2008, 8:53pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/436 "2008-05-08T20:53:16Z")
Clearly there are some here who don’t know how torture works. It is not punishment for not answering questions. It’s about reward for answering them. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [May 8, 2008, 9:03pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/437 "2008-05-08T21:03:22Z")
[QUOTE=John Mace] Well, it’s “clear purpose” is to limit the punishment given to convicted criminals. Unless, of course, you choose to ignore the historical context of that phrase, when it’s history is well documented. It’s one thing to be ignorant of that context, it’s another to continue to ignore it once it has been explained… [/quote] Of course thats its “clear purpose”, where have I disagreed? Hell, I’ve had to state my agreement with that about 10 times already! You keep coming back at me as though I disagreed, and then proceed to attack the supposed reasons for a non-existent disagreement. And on that non-existent basis, you then proceed to accuse me of stubborn ignorance for holding much the same opinion on that as you do! Seriously, WTF? > [@](#): > > …Being as how you’re big on admonishing people for trying to read the minds of others, why are you trying to do that here? It isn’t necessary to read anyone’s mind when we know that the self incrimination clause in the 5th is meant to prevent the torturing of the accused. Sometimes its easier than other times. Like when people make a law forbidding gay striped unicorns, I’m going to make a _wild_ leap and assume that they are opposed to gay striped unicorns. Crazy, huh? Now, if I were to suggest that they did so because they were closeted hippo humpers, _that_ would be mind reading. As to the Fifth, again, we are in accord, with this one minor proviso: that a strict literal reading of the Fifth does not explicitly support such a reading. It is an emanation, a penumbra, an interpretation. And I got no problem with that, I think our understanding of the Framers and their intent makes that a wholly justifiable inference. One of the ways you might induce a man to testify against himself is by applying torture. But is not the only way, you can ask him a question he shouldn’t be required to answer. Or you can pull a Perry Mason on him. And, of course, the word “torture” nowhere appears therein. But we are assured that _any_ such attempts aren’t kosher. I’m cool with that. Put another way, of course the Fifth forbids torture to obtain confession, we can be assured of that because the Framers forbid cruelty even to the _convicted_! Given the other protections accorded, we are entirely safe in assuming that they intend those same protections to apply to the un-convicted as well! _Tres duh, mais non?_ And if an inference and interpretation can be legitimate (and we agree that it can, apparently), that means another inference, interpretation, and/or penumbra might be legitimate as well. The “right to privacy”, for instance. The right to total control over one’s own body. Stuff like that. The snapper being: if a man of whatever scholarly credentials should state that an absence of an explicit protection means no such protection exists in the Constitution…such a man is a poopy-head. Because interpretation of umbras and emanations is a part of the accepted framework of Constitutional law, its far too late to call “Kings X”. What part of that puts a burr under your saddle? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [May 8, 2008, 9:16pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/438 "2008-05-08T21:16:40Z")
[QUOTE=elucidator] Of course thats its “clear purpose”, where have I disagreed? Hell, I’ve had to state my agreement with that about 10 times already! You keep coming back at me as though I disagreed, and then proceed to attack the supposed reasons for a non-existent disagreement. And on that non-existent basis, you then proceed to accuse me of stubborn ignorance for holding much the same opinion on that as you do! Seriously, WTF? [/QUOTE] Post 338: > [@](#): > > No such thing. I assert that the 8th Amendment is but one, rather narrow, assertion of the Founder’s concerns with decent and humane behavior. Of course it refers specificly to convicted criminals. I suggest that they intended to “go the extra mile”, to extend such decent treatment even to those who might otherwise be denied. If “cruel and unusual punishment” is forbidden relative to adjudged criminals, mustn’t it be forbidden otherwise as well? Surely you can’t mean to suggest that it is only forbidden in relation to the convicted? What is this “go the extra mile” stuff? Either they intended the 8th to extend beyond convicted criminals or they didn’t. Point being, that you’re not allowed to get even near “cruel and unusual” per the 5th, for those not convicted. It’s not an issue, because you can’t even lay your hands on the guy for not answering a question. (Unless you happened to have been a state cop back before the 5th and 8th were incorporated-- then you could do whatever your state allowed.) ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [May 8, 2008, 9:40pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/439 "2008-05-08T21:40:10Z")
**John** , I swear to you on the soul of Eugene V. Debs, I have no idea whats bugging you about that. Gaze into these big browns and behold the vast pools of innocence. I fear to explain because the explanation already offered is so flat-footed obvious I can only make it more unclear. Lets try it this way. Lets assume the Framers (and Jefferson, by c-mail…) were of one mind on the subject of torture and cruelty, they were agin it. By “extra mile”, I mean to suggest that they went to the trouble to make it clear that such mistreatment was forbidden even to those convicted of crimes! The aforementioned “least deserving”. Even they are safe from cruelty. In addition to everybody else. Now, it makes no sense at all to infer that they meant this as a special blessing to the convicted criminal that was otherwise unavailable. It means that the Framers despised cruelty so much that they forbade its application even to criminals. It goes the “extra mile” to include those who might otherwise not be included, having lost other civil rights as a result of their conviction of a crime: their liberty, first and foremost. They don’t mean to extend from convicted criminals to the rest of us, they mean to extend from us to _them_! To include those who might otherwise not be included. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 8, 2008, 10:04pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/440 "2008-05-08T22:04:10Z")
[QUOTE=elucidator] Now, it makes no sense at all to infer that they meant this as a special blessing to the convicted criminal that was otherwise unavailable. It means that the Framers despised cruelty so much that they forbade its application even to criminals. It goes the “extra mile” to include those who might otherwise not be included, having lost other civil rights as a result of their conviction of a crime: their liberty, first and foremost. They don’t mean to extend from convicted criminals to the rest of us, they mean to extend from us to _them_! To include those who might otherwise not be included. [/QUOTE] I’d like to tell you about a case called _Church of the Holy Trinity v. United States._ It involved a law passed by Congress. The law said: “…it shall be unlawful for any person, company, partnership, or corporation, in any manner whatsoever, to prepay the transportation, or in any way assist or encourage the importation or migration, of any alien or aliens, any foreigner or foreigners, into the United States, its territories, or the District of Columbia under contract or agreement, parol or special, express or implied, made previous to the importation or migration of such alien or aliens, foreigner or foreigners, to perform labor or service of any kind in the United States, its territories, or the District of Columbia.” Another section of the law made some exceptions for professional actors, artists, lecturers, singers, and domestic servants. There was no exception for ministers. Holy Trinity Church, an Episcopal Church in New York, hired one E. Walpole Warren, an Episcopal minister in England, to come to New York to serve as their rector. In so doign an act that was plainly prohibted by law, the case against them was made, and appealed, ultimately to the Supreme Court. The Court said that common sense must be the overriding concern of the law. The pointed out: > [@](#): > > The common sense of man approves the judgment mentioned by Puffendorf, that the Bolognian law which enacted ‘that whoever drew blood in the streets should be punished with the utmost severity’ did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling, cited by Plowden, that the statute of 1st Edw. II which enacts that a prisoner who breaks prison shall be guilty of felony, does not extend to a prisoner who breaks out when the prison is on fire, ‘for he is not to be hanged because he would not stay to be burnt.’ Good so far, right? Then the Court says that common sense tells us that Congress could not possibly have meant to prohibit the Episcopal Church from importing an alien to serve as rector. Because: > [@](#): > > … no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people. This is historically true. From the discovery of this continent to the present hour, there is a single voice making this affirmation. > . > . > . > If we pass beyond these matters to a view of American life, as expressed by its laws, its business, its customs, and its society, we find every where a clear recognition of the same truth. Among other matters, note the following: the form of oath universally prevailing, concluding with an appeal to the Almighty; the custom of opening sessions of all deliberative bodies and most conventions with prayer; the prefatory words of all wills, “In the name of God, amen;” the laws respecting the observance of the Sabbath, with the general cessation of all secular business, and the closing of courts, legislatures, and other similar public assemblies on that day; the churches and church organizations which abound in every city, town, and hamlet; the multitude of charitable organizations existing every where under Christian auspices; the gigantic missionary associations, with general support, and aiming to establish Christian missions in every quarter of the globe. These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation. In the face of all these, shall it be believed that a Congress of the United States intended to make it a misdemeanor for a church of this country to contract for the services of a Christian minister residing in another nation? See what they did there? They blatantly ignored the clear text of the law Congress passed, because “this is a Christian nation” and no Christian nation could ever be imagined to intend the law that was written. I’m assuming you don’t agree that we should judge the laws based on the fact that we’re a Christian nation? But what they did is what you want them to do – to ignore the written text in favor of the underlying spirit… but the case of _Holy Trinity Church v. US_ shows what can happen if the judges have different ideas about the underlying spirit than you do. [Previous page](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193.md?page=21) [Next page](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193.md?page=23)