# 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:** 9
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 29, 2008, 3:33am UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/161 "2008-04-29T03:33:07Z")
> [@](#): > > “It happens to be correct” not because it is his opinion, but because, unlike so many who have posted in this thread, he actually knows his constitutional law. His statement is an assertion that he is correctly stating the status of Eighth Amendment law as it exists. The reason we have a Supreme Court is because the law is not always clear. Cases where the law is clear and unambiguous are decided in lower courts. The ones that make it to the Supreme Courts are the ones that require the law to be interpreted. And an interpretation, when both sides can present legal precednts to support their claims, is at some level a matter of opinion. A justice may be basing his decision on which legal argument he feels has more merit but he is making a decision. Now I have no problems with this. It’s a necessary role and the Supreme Court is the body properly designated to carry out that role. But I don’t like the way Scalia keeps pretending that his decisions are somehow channeled from beyond him - that he alone understands what the law is and is revealing a Truth that the rest of us did not see. He gives the impression that he sees himself as the Constitutional Pope and his pronouncements are therefore infallible. Let him who questions my rulings be anathema. ---
**Author:** ![Tristan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tristan/32/18058_2.png) [@Tristan](https://boards.straightdope.com/u/Tristan)\ **Post date:** [April 29, 2008, 3:36am UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/162 "2008-04-29T03:36:35Z")
[QUOTE=Bricker] Changing the document by amending the text is the way they intended to change it. Changing the document by means of simply deciding that the same words now mean something different than they did before is not the way they intended to amend it. [/QUOTE] I bow to your knowledge on this one, of course, as I would with pretty much any legal issue. But I do have to ask: So how do we acknowledge the changes in verbage and such that occur in a fluid culture/society without having to go whole hog and amend the constitution? ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 29, 2008, 4:25am UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/163 "2008-04-29T04:25:10Z")
> [@DSYoungEsq](#): > > First of all, let’s keep terms straight. There is a Constitution. Then there are US laws. The scope of the laws is much wider than the scope of the Constitution. The federal government could, for example, pass a law that says: it is unlawful to torture Iraq’s citizens in Iraq; punishment - upon conviction, three years in prison. Now, I am a resident of the United States and I go to Iraq and I torture an Iraqi citizen, who is not convicted of any crime by a United States tribunal. Am I in violation of the law in question? Yes. Can I be convicted and sentenced? Yes. > > Was my action a violation of the United States Constitution? Probably not. It depends on what you mean by “a violation of the United States Constitution.” On the subject or torture, there are two ways it might apply. Under the Bivens doctrine, violations of constitutional rights can be brought as tort actions. While the application of Bivens for Fifth Amendment (or Eighth, depending on the effect of Iraqi court conviction) violations abroad has never been specifically decided by SCOTUS, Sosa v. Alzarez-Machain suggests in dicta that Bivens is available for unconstitutional conduct outside of the US. Sosa v. Alvarez-Machain, 542 U.S. 692, 736 (2004). This method would assume, of course, that you are an agent of the U.S. government. But even if you were not, the Alien Tort Statute may also allow suit against those who commit torture abroad. Though it would not invoke the Eighth Amendment directly, it calls upon the common law principles from which the Eighth was born. ATS actions are often considered constitutional torts because for the most part they use the same principles as clauses of the Constitution. The Statute says “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” § 1350. According to Filartiga, torture is a violation of the law of nations and treaties of the United States and is a cognizable right of action under the ATS. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). Filartiga is cited approvingly by the aforementioned Sosa. Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004). In short, the law in this area isn’t as clear cut as most in this thread have made it out to be. Some of the above is speculative precisely because of the novel circumstances. But it would be wrong to call the law on the issue settled. It is not. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [April 29, 2008, 10:19am UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/164 "2008-04-29T10:19:44Z")
[QUOTE=pingnak] Any doctor can come up with a dozen ways to kill someone that’s completely painless. [/QUOTE] That’s why so many [executions are botched](http://www.deathpenaltyinfo.org/article.php?scid=8&did=478); no doctors are ever directly involved in administering the death cocktail. They are present only to certify death. Administering the drugs would violate their Hippocratic oath, and[it is the policy of the AMA](http://www.deathpenaltyinfo.org/article.php?did=1849&scid=64) to decline to participate in executions. As for harvesting organs, no doctor would participate in such a ghoulish endeavor, for the same reasons. ---
**Author:** ![Zoe](https://avatars.discourse-cdn.com/v4/letter/z/a4c791/32.png) [@Zoe](https://boards.straightdope.com/u/Zoe)\ **Post date:** [April 29, 2008, 10:53am UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/165 "2008-04-29T10:53:27Z")
> [@](#): > > **jtgain** : Words should mean things and this “living and evolving document” nonsense only serves to make 9 judges our masters.. Scalia said in the interview that the _Constitution_ is a dead document. Thought you might want to know. > [@](#): > > **Bricker** : I would be interested in seeing the unedited tape of the interview, because I have a suspicion, based solely on what I know of Nino Scalia, that he would have expanded on his point in exactly that way. I saw the broadcast version and was amazed. I was prepared not to like him at all. Instead I found him to be fascinating. When he’s wrong at least it’s not because he’s stupid. The comments that he made about torture and punishment went by very quickly. I believe that he and Stahl were walking at the time. He speaks very quickly and his mind is working rapidly. He could have gone in several directions. Stahl was overwhelmed. > [@](#): > > **Mr. Moto** : Said actions essentially nullify citizenship… Is that actually true? > [@](#): > > **DSYoung** : Diogenes, I suspect strongly that he did so attempt, and that was edited out by 60 Minutes. I long ago stopped watching that show, simply because I got tired of editorial slant being used as a substitute for an even-handed treatment of an issue. The focus of the program was Scalia himself rather than that one issue. They could not have illustrated his more endearing qualities better. Students find his lectures funny and fascinating. His fellow Justices like him. (He and Ginsberg are personal friends.) He is the son of immigrants and a straight A student all the way through school. He and his wife of almost fifty years have about eight children and twenty-something grandchildren. He was absolutely charming. I have one hell of a time reconciling that man with some of the rulings he makes. He does seem to be blind to how some of his personal feelings might affect his decisions. He says they don’t. Who know? Just reading the transcript is not going to convey the truth of the segment though. I highly recomend seeing the tape if you can. ---
**Author:** ![Liberal](https://avatars.discourse-cdn.com/v4/letter/l/848f3c/32.png) [@Liberal](https://boards.straightdope.com/u/Liberal)\ **Post date:** [April 29, 2008, 11:08am UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/166 "2008-04-29T11:08:45Z")
[QUOTE=Bricker] Changing the document by amending the text is the way they intended to change it. Changing the document by means of simply deciding that the same words now mean something different than they did before is not the way they intended to amend it. [/QUOTE] Plagiarist! 😛 ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [April 29, 2008, 1:07pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/167 "2008-04-29T13:07:28Z")
[QUOTE=Whack-a-Mole] Reading the article **ArchiveGuy** linked is this tidbit: WTF does that mean? Are those two just completely off their rockers? If the state knows a given method of execution is unduly painful but they are not out to cause pain then it is ok? Say one set of a drug cocktail causes massive suffering but it is cheap whereas drugs that are painless for execution are expensive. The state says it is not out to cause pain, just trying to save taxpayer money. That then makes it ok? Note I am not here to argue the merits of the death penalty and one may suppose being executed in and of itself may by definition cause some pain (mental anguish if nothing else as the prisoner is lead to his/her execution) but that does not mean it should be unduly painful if it can be avoided. [/QUOTE] Welcome to the interesting fun that is Eighth Amendment jurisprudence. Which, as I indicated, revolves mostly around distinguishing what exactly are “cruel and unusual” punishments? Justice Scalia (and Justice Thomas) use as a starting point (and don’t go very far from it, usually) looking to see what the meaning of those words was back when they were incorporated into the Constitution. So they look to see what was meant by “cruel and unusual” punishments back in the eighteenth century. This gives them an idea what is intended to be barred by the amendment. If a modern method of punishment is developed, they look to see if it is of a character similar to those barred methods. This was the original standard for the Supreme Court during the first roughly 100 years of the country’s existence. However, in the early 1900s, the Court abandoned this standard in favor of one that is more able to evolve with the maturing standards of decency found in our society. For interesting reading, poke through [_Weems v. United States_](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=217&page=349), 217 U.S. 349 (1910), the seminal case on this weather change in philosophy. Of course, like all such standards that don’t have bright lines, this makes things very difficult to predict. At any given point, is a particular punishment “cruel and unusual?” The death penalty offers the classic example. Clearly, at the time the amendment was added, the death penalty itself was not considered “cruel and unusual,” and indeed, it was carried out in a number of ways we might today consider relatively barbaric. In the liberal movement of the 60s and 70s, the penalty was declared unconstitutional _as applied_, and the case in which this was done, [_Furman v. Georgia_](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=408&page=238), 408 U.S. 238 (1972), provides an instructive overview of the mess that potentially results from letting the Court examine the amendment’s language on the basis of these evolving standards. There was no unifying opinion among the five justices that voted to find the penalty unconstitutional. Two said it was unconstitutional _per se_, three said it was unconstitutional as applied, one because it was applied disproportionally to the poor, two because it was applied in an arbitrary manner. Since then, states have tried to evolve their death penalty statutes to meet these objections. Of course, as membership on the Court changes, the target they have to meet moves. Justice O’Connor’s opinions were different from those of Justice Stewart, for example. So every few years, the Court takes on some new death penalty case and everyone holds their breath to see what the Court will decide about the application of the penalty. We just got through such a waiting period. Justices Scalia and Thomas see little or no purpose to this approach. In their opinion, the amendment has a very easily discerned meaning, one which has existed for quite some time. Applying such meaning provides certainty, and has the additional advantage of taking out of the equation the personal moralities of the justices, as much as possible. I’m not saying it’s the right approach, or even that it’s a pretty good approach. But it does make things simple. ---
**Author:** ![Hentor\_the\_Barbarian](https://avatars.discourse-cdn.com/v4/letter/h/8edcca/32.png) [@Hentor\_the\_Barbarian](https://boards.straightdope.com/u/Hentor_the_Barbarian)\ **Post date:** [April 29, 2008, 1:28pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/168 "2008-04-29T13:28:33Z")
[QUOTE=DSYoungEsq] Justices Scalia and Thomas see little or no purpose to this approach. In their opinion, the amendment has a very easily discerned meaning, one which has existed for quite some time. Applying such meaning provides certainty, and has the additional advantage of taking out of the equation the personal moralities of the justices, as much as possible. I’m not saying it’s the right approach, or even that it’s a pretty good approach. But it does make things simple. [/QUOTE] Isn’t part of that simplicity, on the part of Scalia and Thomas, the assertion that something is not torturous if it wasn’t done with the intention to harm? In other words, if your goal is to simply extract information, you are simply not torturing? Sure, that’s quite simple. Scalia is a big fan of the “ticking bomb” scenario, and has said that its absurd to think that there’s anything wrong with sticking things under fingernails or smacking people. He may be bright in the limited sense of being able to recite and manipulate legal opinions, but in the broader sense he appears to have severe deficiencies. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [April 29, 2008, 2:43pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/169 "2008-04-29T14:43:05Z")
I’m sorry **DSYoungEsq** if I am coming across as a bit thick or argumentative on this but I simply cannot see Scalia’s opinions as anything but devoid of rhyme or reason. While I am reasonably certain he is a brilliant legal mind I cannot view him as anything but making the court a distinctly political arm of a conservative agenda. Note I am not saying I’d be ok if he pushed a liberal agenda either. My perhaps naive assumption has always been the SCOTUS was to be above and beyond mere political matters and render opinion as to what is “right” within the framework of the US Constitution. That he would apply 18th century values in determining what constitutes cruel and unusual punishment is unfathomable to me. That he thinks the court should not take into account 200+ years of societal change and greater understanding (via better science and medical knowledge) boggles the mind. Sounds like if he had his way _Plessy v. Fergusson_ would still be the order of the day. But wait! Is he really consistent in his views or cherry picking what fits his own notions? Try the following: > [@](#): > > The Act’s ban on abortions that involve partial delivery of a living fetus furthers the Government’s objectives. No one would dispute that, for many, D&E is a procedure itself laden with the power to devalue human life. Congress could nonetheless conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition. Congress determined that the abortion methods it proscribed had a “disturbing similarity to the killing of a newborn infant,”… > > \ > > The Court has in the past confirmed the validity of drawing boundaries to prevent certain practices that extinguish life and are close to actions that are condemned. > > SOURCE: [Gonzales v. Carhart](http://www.law.cornell.edu/supct/html/05-380.ZO.html) Majority Opinion by Justice Kennedy; Joined by Roberts, Scalia, Thomas, Alito; Concurred by Thomas and Scalia Ok…so a “disturbing similarity to infanticide” needs judicial protection but (following quote are my words) a “disturbing similarity to torture” apparently is not. And maybe it is just me but is torture not among the list of actions we pretty much universally condemn? Perhaps the legal eagles can show how this is consistent but for now I am not seeing it. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [April 29, 2008, 2:50pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/170 "2008-04-29T14:50:59Z")
I misreported who concurred and who joined in my quote above on Gonzales v. Carhart. Should be: Majority by: Kennedy Joined by: Roberts, Scalia, Thomas, Alito Concurrence by: Thomas Joined by: Scalia ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 29, 2008, 4:16pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/171 "2008-04-29T16:16:33Z")
[QUOTE=Whack-a-Mole] Ok…so a “disturbing similarity to infanticide” needs judicial protection but (following quote are my words) a “disturbing similarity to torture” apparently is not. And maybe it is just me but is torture not among the list of actions we pretty much universally condemn? Perhaps the legal eagles can show how this is consistent but for now I am not seeing it. [/QUOTE] It’s perfectly consistent. If the Constitution is (generally) silent on abortion, then what a state legislature wants to do will be upheld. If the Constitution is NOT silent on abortion, then a state legislature cannot forbid something the Constitution permits. And if the Constitution is (generally) silent on torture, then what the legislature wants to do will be upheld. If the Constitution is NOT silent on torture, then the legislature cannot mandate something the Constitution forbids. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [April 29, 2008, 4:26pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/172 "2008-04-29T16:26:44Z")
[QUOTE=Bricker] It’s perfectly consistent. If the Constitution is (generally) silent on abortion, then what a state legislature wants to do will be upheld. If the Constitution is NOT silent on abortion, then a state legislature cannot forbid something the Constitution permits. And if the Constitution is (generally) silent on torture, then what the legislature wants to do will be upheld. If the Constitution is NOT silent on torture, then the legislature cannot mandate something the Constitution forbids. [/QUOTE] To my knowledge neither of the terms (abortion or torture) are explicitly stated in the Constitution. What prohibitions or protections that do currently exist are inferred from what the Constitution does say. As such it still looks to me like Scalia is being inconsistent and allowing the state to prohibit certain forms of abortion because they have moral or ethical concerns while allowing great latitude in executions which apparently are largely devoid of such ethical and moral considerations. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 29, 2008, 4:50pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/173 "2008-04-29T16:50:38Z")
[QUOTE=Whack-a-Mole] To my knowledge neither of the terms (abortion or torture) are explicitly stated in the Constitution. What prohibitions or protections that do currently exist are inferred from what the Constitution does say. As such it still looks to me like Scalia is being inconsistent and allowing the state to prohibit certain forms of abortion because they have moral or ethical concerns while allowing great latitude in executions which apparently are largely devoid of such ethical and moral considerations. [/QUOTE] Sure. Because the Constitution says nothing about abortion, so the states are free to do whatever they like with it. The Constitution explicitly contemplates executions. We know that the men who approved the Constitution meant for it to permit executions, and we know what kind of executions they permitted (hanging, drawing and quartering). So for us to come along now and say, “Even though the words we’re discussing are exactly the same words that used to permit hanging and drawing and quartering, now those words don’t permit that.” is a bit of a stretch. I guarantee you that if pro-lifers dominated the Court, and wanted the Court to rule that abortion violated the Fifth Amendment liberty interests of the unborn child, Scalia would oppose that, even though he wants to see abortion end… because he wouldn’t agree with the change of redefining liberty interests to include the unborn. So there’s the consistency: the Constitution says what it says. No mention of abortion? Then the states can regulate or eliminate it. Death penalty? Yes, the Constitution permits it. Cruel and unusual punishment? We know what they meant to forbid with that phrase, and killing people (even painfully) wasn’t it. Now, Scalia wouldn’t at all object to the government passing a law that forbid painful executions, or even ALL executions. That’s fine. But if they don’t, you can’t say the Constitution requires them to, because it doesn’t; it never has. His point is that you should not change the Constitution by judges deciding on a new meaning; changes should come from the legislature. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 29, 2008, 5:15pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/174 "2008-04-29T17:15:25Z")
This is the subject of another thread, but I wanted to note that what **Bricker** outlines above is true of an Eighth Amendment challenge arguing that the death penalty is \*per se \*unconstitutional. But what persuaded many justices of the Supreme Court that the death penalty was unconstitutional was that it violated the Eighth Amendment because of the way it was used (disproportionately to kill black people than white people convicted of the same crime). This leads to the other obvious constitutional challenge, which is a challenge under the Fourteenth Amendment. Facts have come to light about which the framers were unaware which highlight the procedural unreliability and inequality of the death penalty. The framers (and the crafters of the 14th amendment) may indeed have thought it unconstitutional to apply the death penalty in the way it is now applied, or at all, given due process concerns if they had been aware of this information. As a matter of the law, SCOTUS has decided that we can patch up the procedural framework sufficiently to keep the death penalty constitutional. But as a matter of pure constitutional interpretation, there are some fact-dependent ways in which the death penalty can be unconstitutional. ---
**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:** [April 29, 2008, 5:29pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/175 "2008-04-29T17:29:46Z")
[QUOTE=Bricker] The Constitution explicitly contemplates executions. We know that the men who approved the Constitution meant for it to permit executions, and we know what kind of executions they permitted (hanging, drawing and quartering). [/QUOTE] Isn’t drawing and quartering exactly the kind of cruel and unusual punishment that the 8th amendment was supposed to prohibit? ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [April 29, 2008, 5:51pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/176 "2008-04-29T17:51:04Z")
[QUOTE=Bricker] The Constitution explicitly contemplates executions. We know that the men who approved the Constitution meant for it to permit executions, and we know what kind of executions they permitted (hanging, drawing and quartering). So for us to come along now and say, “Even though the words we’re discussing are exactly the same words that used to permit hanging and drawing and quartering, now those words don’t permit that.” is a bit of a stretch. [/QUOTE] The Constitution also explicitly prohibits cruel and unusual punishment. I do not see how it is a stretch at all. > [@](#): > > Main Entry: > cru·el Listen to the pronunciation of cruel > Pronunciation: > \ˈkrü(-ə)l\ > Function: > adjective > Inflected Form(s): > cru·el·er or cru·el·ler; cru·el·est or cru·el·lest > Etymology: > Middle English, from Anglo-French, from Latin crudelis, from crudus > Date: > 14th century > > 1: disposed to inflict pain or suffering : devoid of humane feelings \ > 2 a: causing or conducive to injury, grief, or pain \ b: unrelieved by leniency \ Seems pretty unambiguous to me. Further, above, Scalia singed with Kennedy on the notion that “ethical and moral concerns” may inform legislators or the court as to the appropriateness of a given law. Ethics and morals are certainly in flux and our ethical and moral values today are different than those of 1795. Unless you are suggesting that Scalia thinks we should apply 18th century values in forming and interpreting our laws I think it is safe to say that drawing and quartering is absolutely denied by the US Constitution. So, we are left with how to kill people and here Scalia seems to inexplicably veer off course. Morals and ethics go out the window and presumably anything goes as long as the infliction of pain is not intentional. I see no way to read the Eighth Amendment as implying something is only cruel if it is intentional. There are lots of ways to kill a person. Draw and quarter, suffocate, beat them to death, tie them to an ant hill and pour honey on them…you name it. Since the Constitution specifically allows for executions how then do we choose the method? Back in 1795 they had far less medical knowledge and far fewer options available so (mostly) they hung people which was about as good as they could do. Today we have far greater understanding and options. I see nothing wrong or being activist and pulling things out of the Constitution that are not there to say the state should opt for the least painful and practical means at its disposal to execute a prisoner. What that is exactly depends on the state of knowledge and options on offer at the time (which today would seem to be lethal injection). But in no way can I see Scalia’s notion of any means of execution as long as it is not intentional to be in any way supportable either morally, ethically OR constitutionally. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 29, 2008, 7:37pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/177 "2008-04-29T19:37:41Z")
> [@](#): > > Sure. Because the Constitution says nothing about abortion, so the states are free to do whatever they like with it. > > The Constitution explicitly contemplates executions. We know that the men who approved the Constitution meant for it to permit executions, and we know what kind of executions they permitted (hanging, drawing and quartering). > > So for us to come along now and say, “Even though the words we’re discussing are exactly the same words that used to permit hanging and drawing and quartering, now those words don’t permit that.” is a bit of a stretch. And when the Constitution was written “arms” meant black powder muskets. So a law banning semi-automatic rifles would be constitutional. I mean you wouldn’t want to violate the original intent of the second amendment, right? The authors of the Constitution explicitly recognized that standards would change over the years. A punishment that was not considered cruel and unusual in the 18th century might be seen as such in the 21st. ---
**Author:** ![Ludovic](https://avatars.discourse-cdn.com/v4/letter/l/7ab992/32.png) [@Ludovic](https://boards.straightdope.com/u/Ludovic)\ **Post date:** [April 29, 2008, 7:39pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/178 "2008-04-29T19:39:44Z")
[QUOTE=Whack-a-Mole] The Constitution also explicitly prohibits cruel and unusual punishment. I do not see how it is a stretch at all. [/QUOTE] I guess it depends on what the meaning of the word “and” is 🙂 ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 29, 2008, 9:59pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/179 "2008-04-29T21:59:43Z")
[QUOTE=Little Nemo] The authors of the Constitution explicitly recognized that standards would change over the years. [/QUOTE] They did? Where? ---
**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:** [April 29, 2008, 10:04pm UTC](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193/180 "2008-04-29T22:04:05Z")
[QUOTE=Little Nemo] The authors of the Constitution explicitly recognized that standards would change over the years. [/QUOTE] Some did, some didn’t. And what about the hundreds of people who had to sign off on the Constitution? What did they think? How could we possibly know? Now, you may make the claim that you think this should be the case, but we really don’t know what all or even most of the folks who wrote and signed off on the Constitution thought. [Previous page](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193.md?page=8) [Next page](https://boards.straightdope.com/t/justice-scalia-on-60-minutes-scary-quote/447193.md?page=10)