What is inconceivable is that you are still disregarding the point about the 5th amendment. Why would the founders feel it necessary to list the protection afforded to the accused twice, in two completely different amendments? Did you read the link I gave above about the 5th amendment where it outlines the history of how torturing the accused (but not convicted) was eliminated in the 17th and 18th centuries?
IANAL but I feel like I’ve had six years of law school after reading this thread, so let me try.
It’s not covered by the 8th.
It may be punishment as you and I would use the word sitting in a bar, but it’s not punishment as far as the 8th amendment is concerned.
Does the verb “to punish” have but one context, that we are assured it cannot be misinterpreted? “He took on a punishing regimen”. “Ali subjected Foreman to a punishing sequence of combinations”. And so forth. Where is it written that “punish” only refers to judicial actions?
Mr Scalia is a very careful literalist, he first insist that the Constitution can mean only what the literal definitions of the words mean, and then supplies that definition so that we are not confused. Perhaps we ought to be grateful that we are spared the difficulty of thoughtful inspection. After all, he does have a shiny black robe…
OK, forget Scalia. How about ALL the other justices and lower court judges who concluded the exact same thing over the 220+ years of the Eighth Amendment’s existence? How did they all magically reach that same conclusion?
In the 8th amendment, yes. It could have been used to mean something different over the past 300 years, but it wasn’t.
**DSYoung **already answered that in post #87. From his link to the SCOTUS ruling in Ingraham v. Wright (no, not that Wright 
):
He didn’t supply the definition in the sense of making it up. He uses the definition as it has been used in the justice system for the last 300 years.
And that’s all very well. I am aware of the importance of precedent, even though I stubbornly refuse to accept the perfect clarity of your arguments. But if the interpretation is wrong, it hardly matters how many times it is repeated, nor will any dignity bestowed on the repeaters make them right.
No civlized person can view torture with anything but revulsion. The Framers were intent on establishing a civlized, indeed, noble naton. (An effort, lest there be any doubt, I applaud with every fiber of my being…)
On this basis alone we would be fairly assured that the Framers intended that no form of savage behavior would be acceptable. Hence, any restriction of that prohibition would be an unexpected reversal of intention. “We firmly oppose any instances of vile behavior, unless it happens to be a Tuedsay, at 4 pm”
Were the Founders ignorant of Cicero, as outlined by The Perfect One?
http://www.straightdope.com/classics/a3_201.html
(The is the Cecilian Defense, and is impenetrable, and perfect. Submit.)
If we interpret these things the way some would have us, wouldn’t we have a situation wherein cruel punishment if forbidden to criminal suspects and the adjudicated guilty, but freely permissible in any other circumstance? In other words, there are only two sets of circumstances in which we are prohibited from indulging in behavior the Framers were at pains to forbid. And rightly so, it should be forbidden, no civilized person can doubt that.
Your interpretation would make perfect sense if the Framers were largely and generally in favor of cruelty inflicted upon the helpless, but our best indicatons lead us to conclude that they were not. Which is the conclusion we must reach if we believe that they deliberately outlined two exceptions to the rule that torture is mostly hunky-dory.
Balderdash, sir! Tommyrot!
Ok, I’m done with trying to get people to see the distinction; it apparently manages to overcome the ability of some to wrap their brains around it.
So let’s try a different tack: Suppose you were to establish that torture was a violation of the 8th Amendment. Now, what have you gained? Provide a description of a situation where a previously consitutional example of torture is now unconstitutional. :dubious:
But can we at least agree that this definition isn’t something peculiar to Scalia? That it, in fact, has nothing to do with Scalia and that he is simply using it in the same way that every SCOTUS decision has used it ever since the founding of this country itself (and back ~100 years in English Common Law before that)?
Agreed, to a point (see below).
No, because all other instances are covered by the 5th amendment. If the 5th amendment didn’t exist, you would have a legitimate argument. But it does exist, does it not? And does it not cover the other instances you are concerned about?
And remember, the Framers only placed this restriction on the federal government. The 5th amendment wasn’t formally incorporated (applied to the states) until the 1960s, although I suspect most (if not all) states had similar provisions in their constitutions. However, there was not a single standard set for the entire country until just a few decades ago.
I don’t think the Framers were quite as God-like as you make them. Let’s not forget that slavery was sanctioned in the constitution. If that isn’t what we’d call cruel and unusual punishment (in the vernacular sense), I don’t know what is.
(For DSYoung, Esq…)
Precisely! Well, sort of…
The clear intent of the Framers is to forbid vile behavior. If you believe that, and I do, it is not necessary to note any particular passage, that intention is embodied in the Thing Itself.
Had Mr Scalia said that, he would have my full support, and be appropriately grateful, I am sure. But he stopped well short of the mark, retreating to literalist position that leaves the door to savagery ajar. To what end?, we must wonder. If Mr Scalia sought to underscore his complete agreement with the Founders intention to forbid savagery, he had a perfect opportunity. But he chose his literalist ideology over his humanity, as though the importance of that abstract sophistry were the crucial issue. And in so doing, he permits the question to persist, that there are some circumstances wherein the Framers permitted repulsive behavior, and did so with all due intent and deliberation.
Perhaps this is admirable behavior in a Justice, in a human being, it is wanting.
Unless you think slavery isn’t vile, then that clearly isn’t true.
So Flavor of Love is unconstitutional? And I don’t even have to point to any text in the Constitution to prove it? Those Founders were geniuses.
I don’t doubt your statement that all justices have agreed up to now. But it reminds me…didn’t all justices pretty much agree on another topic, affirmed by Plessy, until 55 years later, with Brown? No new constitutional law had been passed, but times had changed, and so did the Court’s interpretation.
If society’s attitude towards torture has changed drastically over time, yet SCOTUS insists it hasn’t, this only serves to marginalize their purpose and influence in society, IMHO. Scalia wants this inequity to be corrected only with new legislation; others argue that the only correction that needs to be made is for 9 obstinate and obsolete judges to wise up and join the rest of the humane, philosophical 21st Century.
What has that got anything to do with it? We are simply talking about whether the 8th forbids torture.
So, does the 8th covers your ‘punishment’ of five lashes?
Or that some of us are busier than others and don’t have the amount of time to reply we wish we had
Given that, forgive my brevity but I found your response lacking on a few fronts.
By continuing to use the term punishment in your posts invoking the Fifth and Fourteenth, you failed to directly address the umbrage people have taken with Scalia’s claim, that torture isn’t punishment. Dividing between pre- and post-due-process infliction of punishment may speak to the timing of the application, but stands in disagreement with Scalia’s statement. He didn’t say, “it’s not punishment as far as the Eighth Amendment is concerned…” Rather, he said something quite clearly, and quite explicitly different. To rescue him with the timing argument suggests an intent and meaning to his words that may or may not be there, and exposes the weaknesses in the originalist/literalist/strict constructionist philosophy that the initial timing argument is based on. In other words, you can disagree with Scalia, or you can invent arguments and thoughts that you believe he would have made. No matter how well researched, rational, or persuasive they are, you would still be using interpretive and assumptive arguments to bolster a literalist view of Constitutional law. (It’s been too long since I was immersed in legal philosophy so I may have my terms wrong. Please don’t drag this into a semantical sideshow over whether prescriptive or originalist would have been the correct term.)
You also failed to directly address the hypothetical. Waiving your hand and claiming that something is “not reasonably related to a legitimate governmental objective,” changes the hypothetical. This is especially apparent in its setup, which deliberately referenced a careful review of law and included the law’s purpose in an attempt to avoid such irrelevant arguments. Even still, it again highlights the weaknesses inherent in resting upon textual interpretation of the Constitution by finding protections that are not literally present.
You also didn’t address where you’re finding a line between permissible and impermissible treatments (i.e., a chilly cell v. balls in a vice). While the Eighth has the C&U phrase, there is no such thing in the 5/14th. Nor how torturing someone for other purposes (again, torturing A to get secreted physical evidence against B, or just torturing A to get B to come in from hiding) is or is not constitutional.
Exception was taken to the notion that there is no constitutional protection from torture. You’ve come close to agreeing with this sentiment, especially here (and other threads) where you refer to the limits of the Constitution. But defending Scalia by ignoring his words (“[E]verything that is hateful and odious is not covered by some provision of the Constitution," and “you don’t say he’s punishing you”) and saying it is punishment after all and it is protected by the constitution (albeit not protected by the 8th), suggests the opposite.
In short, it seems like you’re disagreeing with Scalia, and arguing that the Constitution should be interpreted as a living and adaptable document.
And why do you insist that in the future, the justices ideas will change? Why should they? In the case of slavery, the reason for the change was clear: society no longer viewed slavery as acceptable. Here, the justices – INCLUDING Scalia – already agree that the Fifth Amendment and the Fourteenth Amendment prohibit torture before conviction. What do you imagine will make them swing over to the idea that it’s ALSO prohibited by the Eighth Amendment?
WHAT?!?
Answer this: do you understand that all the justices, including Scalia, already agree that torture is prohibited by the Constitution? You get that? Or not?
Since he was responding to a question about “cruel and unusual punishment,” a term of art which appears only in the Eighth Amendment, it is absolutely clear that he is speaking in the context of Eighth Amendment punishment.
No, no, no!!
There was no waving of hands. The factual situations addressed in the opinions I quoted are obvious analogs – in fact, far less punitive – than your tasing hypothetical. If they were found “not reasonably related to a legitimate government objective,” then how in the hell would tasing be found otherwise??
Except that I provided the cases cites that show exactly that. Where is the disconnect here?
No.
It is a true statement that everything hateful and odious is not covered by the Constitution. But we have a set of case law that shows this particular thing, torture by the government, IS prohibited, both by federal law and by the Fifth and Fourteenth Amendments. Scalia was asked by a reporter to address “cruel and unusual punishment,” not provide a complete recitation of why such conduct would be unconstitutional. He’s a freakin’ Supreme Court judge; he’s well aware of the extant case law.
To expand on the observation that John Mace made: how about slavery? Was that vile? And did the Framers clearly intend to forbid it?
OK, human being. Now you have the chance that Scalia flubbed. Let’s hear it: did the Framers intend to forbid all things vile, like slavery?
Oh, come now. Both of you are quite adequately familiar with the agonies inflicted upon our borning nation by the issue of slavery. Are you here to suggest that slavery was as universally scorned as torture? Both Jefferson and Washington owned slaves, have we any reason to believe that they condoned torture as well?
In addition, the conflicts, both real and potential, between property rights and human rights have plagued us to this very day. But there are no property rights issues with inflicting torture, it is a much simpler question.
One who holds you in less esteem than I might think you were trying to change the subject.
I think any public producton centering on Flavor Flav is covered under crimes against humanity.