[QUOTE=elucidator]
One who holds you in less esteem than I might think you were trying to change the subject.
[/QUOTE]
Huh. You have done so much to change the subject in this thread from cruel and unusual punishment per the Eighth Amendment to torture in general that I’m frankly amazed that you would even dare to suggest this.
Thank you for youir critique of my character. I will take it under advisement. Have you anything to offer towards the matter at hand?
Let’'s review.
You said:
[QUOTE=elucidator]
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.
[/quote]
When asked about slavery, you say:
[QUOTE=elucidator]
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?
[/quote]
So slavery isn’t a True Scotsman, eh?
No such luck: answer the question.
And then we can talk about things like cropping the ears off villains, which the Founding Fathers ALSO seemed to approve. But your habit of dodging a direct question isn’t going to work here.
Answer: did the Founding Fathers intend to forbid slavery? And is slavery vile?
Let me put this a different way…
Lets suppose, just for the moment, that I am right, that the Framers did not dwell on the particulars of torture simply because they didn’t think it needful. We were intent on founding a new nation unburdened by the darkness of Old World ways, torture was already right out!
Now, of course, they could not cover every conceivable instance of barbaric behavior…
“Pig buggery?”
“Amendment 510.”
“Plaid shorts and striped shirts?”
“Amendment 511.”…
So they made some assumptions. And we note that they went to considerable lengths to protect accused persons from injustice and barbarity. As well they might. All well and good.
But from whence, then, the 8th Amendment? Not being present, we can only surmise. What I surmise is that they were going the extra mile. That it was pointed out to them that convicted persons are shorn of certain human rights, are they shorn of all? Being convicted and adjudged, have they no humanity that need be respected?
So they covered that, because, after all that was the whole intent of having a Constitution in the first place, that the dark barbarities of the Old World would have no place. All well and good, so far.
But this line of thinking leaves Justice Unibrow in an awkward spot. The intentions of the Framers is clear, but the literal wording which he cllings to so fiercely, and which serves his interests in “hindering progress” so faithfully, is not at hand. If he were to affirm and underline the clear intent of the Framers, he would have to rely on a less definite foundation, one without the explicit wording that is his Precious.
But rather than support the humane and decent position at the cost of his favorite ideological and rhetorical club…he retreats into irrelevence, clinging to his literalism as if to a floating spar in a maelstrom. Doing the right thing would admit that he might be wrong, that there is something besides the precise wording that is relevent here, that is, the overarching concerns of the Framers with humanity and decency.
Being unwilling to do the right thing, he chooses to do as little as possible, he seizes, once again, on narrow literalism to save his ideological bacon. I am hopeful that this will have no unfortunate consequences for person unlucky enough to fall into our hands under dark suspicion.
But Mr Scalia had the opportunity to make that one more step, to go the extra mile. He turned away.
[QUOTE=elucidator]
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?
[/quote]
No, I’m here to suggest that slavery is vile. Your argument rests on the premise that the Framers clearly intended to prohibit vile things, which they clearly didn’t, since they permitted a very vile thing to continue.
Or, let’s take another “vile” form of punishment: whipping. This government cite gives details of how whipping was doled out as punishment in Delaware as late as 1905. Sixty lashes on the back of a person tied to a whipping post.
I don’t know if they would condone torture, but it was a common practice in the US until the 20th century. The wikipedia cite on torture in the US says:
And Jefferson and Washington were hardly the only “Founders”. It would not surprise me one bit if many of the Founders did condone torture during interrogations.
[QUOTE=Bricker]
…Answer: did the Founding Fathers intend to forbid slavery? And is slavery vile?
[/QUOTE]
Well, of course, you know I’ve not been to law school. Oh, wait, I think we occupied a building once. Does that count? But I’ll give you my answer if you will view it in a charitable light, as I have little Latin and no Greek…
As you no doubt know better than I, issues of slavery had another dimension, the matter of property rights. Having already said that a man cannot be shorn of his property, legally obtained and paid for, how were they to tear property away from (forgive the euphemism) “rightful owners”? And, of course, there is that ex post facto thingy.
So, they caved. Perhaps they were right, it is possible that a unrelenting and uncompromising determination to uphold human rights would have left us divided and easy pickings for circling European vultures. Entirely possible, in my estimation.
So, did they do the right thing? I don’t know, I don’t even know what I might have done. I might very well have gone along, hoping that progress begun will lead to progress continued, and that the snapping of chains might become a habit. (Such wild eyed optimism is common amongst my ilk, you may have noticed. And, well, we did, didn’t we?..)
Is slavery vile? Well, duh. Is torture vile? Double duh. I suggest that torture was much more widely recognized as vile and barbaric, as I’ve already said. I also pointed out that slaveholders like Washington and Jefferson stand as examples, amongst others. If I wasn’t clear about that, I shall endeavor to be clearer. My fault, obviously, if my argument were expressed with all due clarity, you would throw yourself instantly into enthusiastic agreement.
Yes, that must be it.
[QUOTE=Bricker]
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?
[/QUOTE]
Like Hell they do! Have you read the OP?!
[QUOTE=Bricker]
Let’'s review…did the Founding Fathers intend to forbid slavery? And is slavery vile?
[/QUOTE]
It’s my personal opinion that referring to slavery might not be a good analogy. Here’s why.
Slavery in the 1700’s was a polarized subject, leading ultimately to the Civil War. While the framers were able to reach a concensus about many things and differed only by degree on many subjects, the institution of slavery was so firmly rooted in parts of society that they found it impossible to agree upon. The 3/5ths compromise wasn’t much of a concession by either side, but just a way of putting the unpleasantness behind them and getting on with other business.
In contrast, I imagine if the subject of torture had been analyzed so thoroughly as we are doing in this thread, they might have been able to at least word the law to avoid ambiguity. They either thought they had covered it or missed a loophole.
[QUOTE=John Mace]
No, I’m here to suggest that slavery is vile. Your argument rests on the premise that the Framers clearly intended to prohibit vile things, which they clearly didn’t, since they permitted a very vile thing to continue…
And Jefferson and Washington were hardly the only “Founders”. It would not surprise me one bit if many of the Founders did condone torture during interrogations.
[/QUOTE]
I’m sorry, you’re quite right, I take back the part where I said they were the only Founders, silly of me, really. Please feel free to present us with a comprehensive survey of the opinions of all the Founders, at your leisure. I might myself, but I am lazy and easily…ooh! shiny!
As for the rest, about the only thing any of us can say is clearly they didn’t regard mutilation and whipping as “cruel and unusual” when carried out upon adjudged miscreants. OK, what of it? They did forbid “cruel and unusual punishment”, but didn’t explain what they meant. Presumably, they thought it was one of those “everybody knows” sort of things. Or the quailed at the notion of explicating every single conceivable example. I dunno, ask the guy with eyebrows like caterpillars on acid.
[QUOTE=elucidator]
Let me put this a different way…
Lets suppose, just for the moment, that I am right, that the Framers did not dwell on the particulars of torture simply because they didn’t think it needful. We were intent on founding a new nation unburdened by the darkness of Old World ways, torture was already right out!
[/quote]
Can we have a cite that physical abuse during interrogation was considered barbaric and vile in the late 18th century? I’ve given you a cite that says it was common practice into the 20th century.
For crying out loud, will stop pretending that this is some obscure Scalia-specific definition? You’ve been given link after link to prove that “cruel and unusual punishment” has been used to characterize punishment given to convicted criminals for 300 years by our legal system.
Wrong, wrong, wrong. In fact, Scalia rejects narrow literalism (AKA, strict construction) as a valid method of constitutional interpretation.
Well, let’s look at what he actually said about torture in that 60 minutes piece:
[QUOTE=elucidator]
I’m sorry, you’re quite right, I take back the part where I said they were the only Founders, silly of me, really. Please feel free to present us with a comprehensive survey of the opinions of all the Founders, at your leisure. I might myself, but I am lazy and easily…ooh! shiny!
[/quote]
Hey, you’re the one who claims to know what they were thinking, and what values they had, not me.
And how many cites have you given so far in this thread? We’re getting a lot of your opinions, and a fascinating opinion that is, but it would be nice to know what you are basing that opinion on.
[QUOTE=John Mace]
Can we have a cite that physical abuse during interrogation was considered barbaric and vile in the late 18th century?..
[/quote]
You lost me there, big guy. If they didn’t consider it unacceptable, why did they forbid “cruel and unusual punishment”? Too expensive? No, I definitely think theres a moral dimension here.
Uh, what? Huh? With all due awe, John, this sentence is impenetrable, unless I assume you mean something like cruel and unusual punishment has been the standard? But that can’t be it. You lost me on that last turn.
Well, goody. I’ve read a few articles about him that suggest something very much like that, perhaps I’ve been misled. Does it matter?
Thats nice. In a context without consequence, he’s rather more forthcoming. Peachy.
[QUOTE=John Mace]
Hey, you’re the one who claims to know what they were thinking, and what values they had, not me…
[/QUOTE]
“By their works, ye shall know them.” Discuss.
[QUOTE=elucidator]
You lost me there, big guy. If they didn’t consider it unacceptable, why did they forbid “cruel and unusual punishment”? Too expensive? No, I definitely think theres a moral dimension here.
[/quote]
How many cites do you need from definitive sources that “cruel and unusual punishment” has only meant “punishment given to convicted criminals” for the last 300 years in our legal system? You are asserting a new definition. You are asserting that the Founders meant something other than what every legal opinion has said for 3 freakin’ centuries. What is the basis for your claim, other than your own opinion?
See above.
You’ve either been misled or you misread. Whatever the cause, you are incorrect.
Why is what he said “without consequence”?
[QUOTE=Musicat]
It’s my personal opinion that referring to slavery might not be a good analogy. Here’s why.
Slavery in the 1700’s was a polarized subject, leading ultimately to the Civil War. While the framers were able to reach a concensus about many things and differed only by degree on many subjects, the institution of slavery was so firmly rooted in parts of society that they found it impossible to agree upon. The 3/5ths compromise wasn’t much of a concession by either side, but just a way of putting the unpleasantness behind them and getting on with other business.
In contrast, I imagine if the subject of torture had been analyzed so thoroughly as we are doing in this thread, they might have been able to at least word the law to avoid ambiguity. They either thought they had covered it or missed a loophole.
[/QUOTE]
Actually, they did. They put the “self incrimination” clause in the 5th amendment to forbid coerced confessions and they put the “cruel and unusual punishment” clause in the 8th to forbid torture as a sentence in criminal court. This is not rocket science. Much of what went into the Constitution was simply derived from English Common Law-- like those two clauses. They meant the same thing in Colonial America (ie, Britain) as they later did in the US of A. The Founders didn’t invent this stuff, they just used what was already in place. They may have invented some other stuff, but not this.
Now, it’s also important to understand that for much of our early history, virtually all policing was done by the states, and the BoR did not apply to the states until the SCOTUS started incorporating the various rights in the 19th century. So, although we had some high and mighty language at the federal level, you can see by the cites I gave above the at least some states were coercing confessions from suspects and inflicted brutal punishment on convicts for over a hundred years of our history as a nation.
And on that note, I’m going to bid farewell to this thread. At least for awhile.
I’m finding that beating my head against this particular brick wall to be cruel and unusual punishment (in the vernacular sense, of course).
[QUOTE=BrainGlutton]
Like Hell they do! Have you read the OP?!
[/QUOTE]
Yes, I have. Have you?
The OP inveighs against Scalia based on the exchange he had with Stahl, with Stahl asking: “‘If someone’s in custody, as in Abu Ghraib, and they are brutalized by a law enforcement person, if you listen to the expression ‘cruel and unusual punishment,’ doesn’t that apply?’ Stahl asks.”
Scalia answers, correctly, no.
Now, OTHER PORTIONS of the Constitution apply. But the phrase “cruel and unusual punishment,” which is peculiar to the Eighth Amendment, does not apply. Because the Eighth Amendment does not apply.
Why is this so difficult to grasp?
[QUOTE=John Mace]
How many cites do you need from definitive sources that “cruel and unusual punishment” has only meant “punishment given to convicted criminals” for the last 300 years in our legal system? You are asserting a new definition. You are asserting that the Founders meant something other than what every legal opinion has said for 3 freakin’ centuries. What is the basis for your claim, other than your own opinion?..
[/quote]
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? Which would, of course, be the strictly literalist interpretation, no?
(Are you sure you haven’t mixed me up with someone else, or a phantom of your own devise? Because you are firing on an unoccupied position.)
Still obscure. Whatever.
Whether Scalia is a literalist, an originalist or an irascible Italian has fuck all to do with the argument. As he himself has clearly stated, he regards the Constitution as an instrument to hinder “progress”. I don’t, and all you can define from that is that Scalia is not a Lucidivist. More’s the pity. Give it whatever name pleases you, I’m still agin it.
Uh, because he was on TV, and not wearing those spiffy robes?
[QUOTE=Musicat]
It’s my personal opinion that referring to slavery might not be a good analogy. Here’s why.
Slavery in the 1700’s was a polarized subject, leading ultimately to the Civil War. While the framers were able to reach a concensus about many things and differed only by degree on many subjects, the institution of slavery was so firmly rooted in parts of society that they found it impossible to agree upon. The 3/5ths compromise wasn’t much of a concession by either side, but just a way of putting the unpleasantness behind them and getting on with other business.
In contrast, I imagine if the subject of torture had been analyzed so thoroughly as we are doing in this thread, they might have been able to at least word the law to avoid ambiguity. They either thought they had covered it or missed a loophole.
[/QUOTE]
Well, the reason I borught up slavery is in response to elucidator’s claim that the Founding Fathers clearly intended to prohibit all things vile. Thus, he says, they must have meant to prohibit torture.
Now, he had been impervious to repeated entreaties imploring him to consider the fact that the Constitution already prohbits torture. So I thought I’d take another tack: to point out that even his premise is wrong. The Founding Fathers meant to permit slavery, which is a vile thing. Some of the punishments they would have permitted under trhe Eighth Amendment were also vile. So it’s simply not true to say, “The Founding Fathers clearly intended to prohibit all things vile, and thus they must have meant to prohibit torture.”
I don’t think elucidator is arguing honestly here.
To me, the simplicity of these statements are such that they’re almost impossible to misunderstand.
But maybe we need to start anew:
The Constitution forbids torture.
The Eighth Amendment forbids torture as a sentence of court, after a criminal conviction.
The Fifth and Fourteenth Amendments prohibit torture in other circumstances.
Justice Scalia correctly answered Ms. Stahl’s question.
Which of these are in dispute?