Might I try and sum up a few things?
What section(s) of the Constitution would apply to torture?
Arbitrary or not, the way in which case law and history have evolved is that the Eighth amendment is in play only post-conviction. The same conduct, when it occurs prior to conviction, is treated by the Fifth and the Fourteenth.
This is counterintuitive, and may be difficult to grasp for someone not heavily invested in the nuances of the law—it may seem like a shenanigan hinging on made-up fine hair. For someone who is, an argument that doesn’t ‘get’ the distinction is like listing to a singer that’s way off key.
For the former, consider that arguing that the Eighth is in play pre-conviction is like saying the Second Amendment gives you the right to free speech. If you’re concerned about free speech, getting into an argument with someone over whether or not the Second Amendment protects it—and drawing that argument out—not only frustrates the person trying to (rightfully) call your attention to your mistake, but completely misses the point that that person agrees with you with regards to free speech. Accept that the 8/5 semantic difference is visible after careful and detailed study of the subject, and trust that the difference is more than splitting hairs. While a later Court decision may extend the 8th to pre-conviction treatment, for the time being it doesn’t apply. But do realize that despite the actual Amendment(s) in play, the general feeling here is that the Constitution does prohibit torture.
Does the Constitution prohibit torture?
(YES)
The Constitution prohibits torture if and only if you understand and are able to grasp the weaknesses and flaws inherent to a textualist/originalist/literalist interpretation of the Constitution.
There is nothing in the 5/14th that directly speaks to the treatment of the detained. Proscriptions against maltreatment come only from reading into the term “due process” what you want to see there. While you can point to case law that supports your desired outcome, case law that defines standards, case law that determines when and where it applies, it still remains that the coverage of mistreatment’s inclusion the Amendment’s jurisprudence is a matter of convenience, not a textual interpretation. Furthermore, the ability to craft a situation in which the 5/14th wouldn’t apply, yet still insist that the constitution would prohibit such conduct, suggests a view of the Constitution as a living, malleable document.
This view has the unfortunate and dangerous side effect of emasculating much of the Constitution’s power, and accepting that it offers very little protection—its adaptability to ostensibly moral ends makes it equally adaptable to nefarious ones.
(SOMETIMES)
Via a textualist interpretation, the 8th Amendment prohibits Cruel and Unusual punishment for the convicted only. There are no protections for treatment pre-conviction, as it is not in the text. Whereas torture for the attainment of incriminating evidence may violate the Fourth Amendments “reasonable” requirements, if the person subjected to maltreatment doesn’t have a 4th Amendment claim (e.g., the secreted evidence does not incriminate them) it is unlikely to apply. There are other narrow situations where torture would be unconstitutional (e.g., bar against self incrimination), but for the most part, case law that has found maltreatment unconstitutional have been grounded in bad law.
While such cases have the force of law, they are little different from a case decided on a back-room bribe. Both have precedential value, both are enforceable, but the underpinnings are not connected to jurisprudence.
This is not to say that the Constitution shouldn’t prohibit torture, but if that is to be the case, there exists the well-documented and familiar amendment process. The reason it has not gotten to that point is a combination of improper judicial decision-making and that there is a host of legislation in existence that largely render Constitutional questions moot.
This view too eviscerates much of the Constitutional protections taken for granted, and can easily yield absurd situations. Furthermore, while strictly interpreting the text may serve as a starting point, the need to call on super-textual analysis arises quickly and unavoidably.
Where did Scalia fit in all this?
Scalia didn’t address C&U. Stahl brought it up, but Scalia wasn’t making the distinction between the 8th and the 5th. In his example he used a FourthAmendment-type hypothetical. Saying that he actually meant that it would be a violation of the 5/14 is nonsensical and puts words in his mouth. It’s awfully silly to on one hand claim that he is so precise that of course he meant that because Stahl brought up Cruel and Unusual, while glossing over his actual words.
There were two sentiments that have gotten people’s goat (pet or otherwise). First, that not everything that is outrageous is Constitutionally prohibited. As a strict textuallist, and even as an airy-fairy interpreter, this is an ugly, but not really exciting truth. I have protection from the Government putting a cross on the steps of the courthouse, I don’t have protection from them playing Michael Bolton inside.
He also claimed that torture, in certain situations (specifically one to obtain information), is not punishment. In doing so, he seemed to imply that it was acceptable conduct. Aside from legal arguments, this struck many as abhorrent. This is exacerbated by the perception that Scalia represents the specter of the right wing boogeyman, He Who Put Bush in Power, and is a cold, cruel man. Change that perception, and much of the vitriol and shock melts away, and a realist and pragmatist is revealed.