In psychology, performing, or not performing, a behavior in order to avoid a punishment is known as negative reinforcement. The justice is wrong.
We are talking law, not psychology. Legal terms don’t always have the same meaning as in the vernacular or in other specialized areas. The justice is right.
Slavery was allowable then, too. It took a long time for people to see that it was wrong under ANY circumstances and for ANY reason. Same with torture. The Supreme Court and their supporters are just engrossed in the ignorance and, frankly, institutionalized evil of their time, just as they were when they permitted slavery. Just as slavery went away as a state-sanctioned action, torture’s gonna go away as a state-sanctioned action someday. (I had hoped the US was already done with it. I was wrong. Ignorance persists here.) Someday, people will say the Supreme Court was wrong to interpret the Eighth Amendment so narrowly, since torture is clearly wrong under any circumstances. It’s not really hard to figure out, if you have your morals in order.
I’m not sure what all those non sequiturs are supposed to mean. Slavery was clearly constitutional, as it was recognized in the constitution. Are you implying that the SCOTUS should have ignored the constitution and declared slavery unconstitutional? In that case, let’s just get rid of that pesky constitution and all those pesky laws and just let the Supremes rule as Philosopher Kings.
As for torture, it is already illegal. Anyone who has been tortured in the US can sue in the courts. What the CIA does in secret overseas is always going to be very difficult, if not impossible, to litigate.
Well, if you look carefully at the Preamble, it provides the reasons for having a Constitution – and, without research into them, I’m quite sure that the Federalist Papers acknowledge that conditions conducive to “domestic Tranquility” and “promot[ing] the general Welfare” had in fact changed in the centuiry and a half since America was first colonized, and would continue to, and that it was their intent that the Constitution structure a government which would continue to function for the purposes given.
In fact, the Preamle is the sole place, other than perhaps the Elastic Clause, justifying having a United States Air Force, rather than a Texas Air Corps, Rhode Island and Providence Plantations Aeronautical Defense Force, South Dakota Air Defense Force, etc.
Similarly, the only occasion on which the Constitution guarantees the right of the people to come together in free association is if and only if they are in the process of petitioning the govenment for a redress of grievances.
Finally, there are absolutely no grounds, outside the Common Law and again the Elastic Clause, why only a self-selected group of elitists may represent another person in court in exchange for a monetary consideration. The Constitution neither provides for it nor authorizes anyone else to. Provision for it in the courts’ admitted powers to set their own rules of procedure is as unconstitutional as would be requiring any black person to hire a white person to represent him. In short, under your theory of constitutional interpretation, any money you received for representing a client in a case involving a Federal question was an unconstitutional extortion – and they should be entitled to demand it back, with interest. That is most clearly an emanation or penumbra from the text.
That’s not a direct attack on you, Bricker – rather, on a theory that picks and chooses what it will consider proper or improper additions to the powers explicitly granted in the Constitution, and the degree to which the broadly worded language can be taken to change with time and public perception.
The notion of eliciting a confession via fear of the consequence, in other words, negative reinforcement, cannot be redefined legally. It is a factual, scientific, accurate description of the phenomenon that supersedes any dictionary and applies not only to humans, but to almost every organism with a nervous system. It is an objective truth about learning. If you wish to redefine the fundamental processes of learning for the purposes of a legal argument, you are doing nothing more than playing parlor tricks. Torture inherently involves punishment. Without punishment, the reward system simply would not engage and there would be no confession.
Sure it can. Any word can be redefined, especially to make it arrow and more precise. Punishment is defined as the sentence given by a court to a person guilty of a crime. Any treatment before conviction is covered by the due process clause. Torture is not allowed either before or after the conviction, with no need to reference the 8th amendment for the former.
oops, missed the edit timeout. It makes sense to define the punishment referred to amendment 8 as punishment for crimes committed in the sense of the common law tradition of the punishment must fit the crime. Oh, and speaking of legal definitions, from Law.com Dictionary:
emphasis added.
Those are all inferential arguments. He said they EXPLICITLY made that statement. Where is it EXPLICTLY made?
I much prefer the OED.
Because the OED is a better reference point than the various legal dictionaries concerning a legal issue?
Your preference is a non-issue.
Like someone stated earlier, having the justices behave in this way is way, way too similar to having justices who do whatever they feel is morally righteous. That’s no more reasonable or valid than the position you’re arguing against.
Philosopher Kings do NOT equate with the kind of country we have/probably want.
You’ve convinced me! Scalia vs OED – I’ll take the OED anytime! Unfortunately, that’s not the legal definition, I suppose. But it should be!
And my answer is the correct one.
Scalia missed a great teaching opportunity. He said torture is not defined as punishment. If not, what is it. ? He could have told us what it is. Except, it is punishment. What else is it,sport. If you torture ,you are punishing.
He was arguing about a policeman torturing someone to get information, and was claiming that that wasn’t punishment, which certainly doesn’t sound like a hypothetical that requires the “legal definition” of punishment. Well use Bricker’s “reasonable reading” methodology, and I’m betting that the man on the street would consider torture to fall within the English definition of punishment.
As an aside, all of this “legal definition” stuff sounds like horseshit to me. Words have definitions, and the only reason that most of their “legal definitions” vary is because some court said they did. Punishment means something, and unless you have evidence that demonstrates that either the Eighth Amendment or the original Bill of Rights of 1689 were specifically meant to include only our currently defined “legal definitions”, I think the argument is specious.
For fucks sake, even Scalia said:
Anyway, that’s my view, and it happens to be correct.
Well, I suppose I could muddy the ‘originalist’ waters a bit by coming up with a few examples of how changing circumstances change laws.
Let’s take a silly example. A binding verbal contract made at a wedding ends with variants of ‘…until death do us part’.
At the time that oath was invented, gods only know what superstitious gobbledygook passed for ‘death’ in the mind(s) of its author(s). People have been all kinds of ‘dead’ that would blow the minds of the originators of that vow. Who’d have suspected you could live indefinitely without a heart? That you could stop a heart and start it again? You’d have a hard time even convincing them what the brain and nerves did. Heck drag some kid out of the water and give him CPR and bring him back, and it’s a toss-up whether people of that time would declare it a miracle, or stone you to death on the spot.
Yet we have people declare ‘life’ by allegedly the same kinds of definitions and reasons that people a thousand years ago would be happy with.
In the late eighteenth century, corporal punishment was commonplace, and people were still USING those implements of torture you see in a museum and scratch your head over until someone draws you a picture. Often publicly.
In a way, at least back then the torturers were HONEST about what they did. Leave a mark? Bloody hell yes! Maim and often kill is what they did. If somebody uses ‘The Pear’ on you, you’re probably not going to recover, especially without massive reconstructive surgery and antibiotics, neither of which existed at the time.
The modern torturers tend not to want to leave any marks. Go out of their way not to bruise. Be as sure as possible it will only be their victims’
words against theirs. Inflicting the maximum pain and anguish without leaving any visible signs is the state of the art now. Obviously because torture has lost much of its former popularity in the hearts and minds of people educated and thoughtful enough to realize it could one day be THEM receiving such treatment.
Anyway, what is considered ‘unacceptable treatment’ today by any SANE person is absolutely wimpy compared to the classical methods. I mean, gosh they don’t even do auto de fe ceremonies anymore, but it was still practiced in Mexico, Brazil and Peru back when they wrote the constitution. Nothing like popular traditions to show us how slippery things definitions and language are. And make no mistake, the auto-de-fe was a real crowd pleaser.
More recent problems came from wording about ‘detectable levels’ of environmental contaminants, and how improving detection technology made it possible to detect really, really small concentrations of contaminants. Literally drop in the ocean sorts of levels.
There’s always going to be fresh debate about things that were dead certain at one time as society and technology evolves, not to mention how people will work their hardest to change definitions for good and ill. Things that were important to a largely agrarian society were less so to an industrial society and to an information society? Sure, the framers of the constitution didn’t think about ‘privacy’ as an issue because technology to economically spy on everybody didn’t exist. Today it does exist, and it’s growing.
Well, if we’re going to use vernacular dictionaries, let’s be consistent (emphasis added):
Abortion is baby killing. Why do you want to kill babies, Zoe?
-bolding mine
Watching the 60 Minutes program, I was led to understand that the US Constitution is actually a document for conservatives who by definition resist change. A US supreme court ruling in favour of a liberal agenda over a conservative agenda would seem contrary to the intent of the founding fathers.
Didn’t he say something to the effect that the purpose of the Constitution was to hinder progress?
Probably in the sense that progress = change. Else, why would we have made it relatively hard to amend the Constitution? I would say that’s simply a fact. It is very difficult to change the constitution.
So, an unfortunate word choice, due to a paucity of vocabulary? “Fat Tony” Scalia?