The Framers of the Constitution got some things wrong. Things like who’s entitled to vote and is slavery OK. I understand that – although the Constitution was a huge advance in governing, the Framers were a product of their time and it would have been truly miraculous if they’d gotten EVERYTHING right, and the Constitution is pretty fricking miraculous as it is.
We regular guys see the Eighth Amendment as one of the things the Framers got right. It says in plain language that the government can’t go around torturing folks with cruel and unusual punishments. There’s nothing in there about it only meaning people convicted of crimes.
That’s something that you lawyers have gotten wrong. The fact that you’ve gotten it wrong since the 17th Century doesn’t mean diddly squat. You can talk about stare and desist all you want, sometimes you get things wrong, and sometimes you get them wrong for a long time, and this is one of those instances.
A blanket proviso against allowing the government to waterboard people or stick electrodes on their genitals or get up to similar mischief is a very good thing, because as Amnesty International can thoroughly document, governments are very prone to get up to these sorts of tricks, generally against internal political foes, which the Pubbies haven’t done … yet. I would hate to believe that they would do so, but I would never have believed they would embrace torture so … fervently … not so long ago. I am no longer unwilling to believe the worst of them, given their documented tendencies toward worstness.
So, any kind language that can be used as a club that will keep the government from torturing us is looking good to us regular guys. I’m not surprised that Scalia doesn’t see that. He’s in the business of sticking people in cages for years. Hardens your heart, I bet.
I can also help your with the question of outcomes re: yourself and Scalia, Bricker. Your role as a trial attorney is to represent your client. We recognize and understand that in giving defendants the right to counsel, those counsellors may sometimes free defendants who are not in any sense of the word, innocent. We put up with this occasional bad outcome because we understand that someday we may be a defendant, and we would like somebody who knows the law to represent us at that time. We understand that your role in the process may lead to the occasional outcome that is repugnant to us and to you.
Scalia’s role is different than yours. His job is to interpret the Constitution. We expect that he will use his full understanding of the law to interpret it. But we also expect that he will also be guided by his compassion and his conscience. For example, no matter how legal it is, we hope he would never hand down a decision allowing somebody’s eyes to be put out for jaywalking. We will be very disappointed if he does, we would wonder if the man has any moral compass at all, for surely if he had one he would find an interpretation that would save the jaywalker’s eyes.
n much the same way, we hope that Mr. Scalia can use his moral vision to use the Eighth Amendment as the clear language of the text indicates, rather than dubious historical precedent. As Elucidator has inquired, what sort of occasions are the Justices reserving torture for as a tool of the state? There is no such occasion that is consistent with the principles of human dignity that are otherwise enshrined in the Constitution. Justice Scalia and the others should use their moral compasses on this decision. The Eighth Amendment reads like it means torture is forbidden, period. It should be interpreted thusly, none of this shilly-shallying about prisoners vs. accused persons vs. person not accused of anything but held in custody. It is obvious from the behavior of the Bush Administration that we need this blanket protection from torture.
We also need a mechanism short of impeachment that could reign in a crazed Presidential administration. It is clear from recent events that we have no such mechanism.
