What constitutional right has been violated? There is a right against self-incrimination, but in this situation the government is not seeking to use anything said a result of the torture.
(Assume the government had probable cause to arrest and detail the suspect.)
I am not excusing the actvity. I don’t like it any more then anyone else. But to try to twist the meaning of “punishment” to get Abu Graib/Gitmo torture to fit with in the perview of the Eighth (as discussed for days in this thread) is a bit of a stretch, in my humble opinion.
Besides, if the powers that be (Bush, Scalia, Bauer, whoever…) decide that some little old law won’t stop them, then surely a Constitutional Amendment won’t, either.
Sure. There’s a Fifth and Fourteenth Amendment right against being tasered for no reason. In Ingraham v. Wright, the Court, discussing corporal punishment administered to school children, invoked the Fourteenth Amentdment’s Due Process Clause, saying:
If the paddling of school children triggers Due Process analysis, how much more would the tasering of an adult?
So relying on Ingraham, the Fourteenth Amendment’s Due Process Clause is the Constituional guarantee affected.
OK, then. Explain your position. Use simple words so I can follow. Don’t wax poetic. Talk simple. Elucidate. 
Why do you say the Eighth Amendment is the one that must be construed to protect against torture in a pre-criminal conviction situation? Why can’t it be the Fifth and Fourteenth Amendments?
To be fair, I think **elucidator **has explained his position clearly. He just read the plain text of the 8th, as most laymen would, without reference to its judicial history and the legal definition of of the term “punishment”.
I am not saying it would not trigger a due process claim. I asking why it violates due process. In Ingraham the corporal punishment was not a violation. Why would the torture necessarily be a violation?
To add to my hypothetical, what if there was an administrative procedure (like there was in Ingraham, but that was tailored to the use of torture) before the use of torture on a properly detailed suspect, would it be a violation of due process?
Let’s see. He was part of the majority in Turner v. Safely that found a Fourteenth Amendment right to marry for confined prisoners. But before Scalia joined the court, the seminal cases on pre-trial conditions were already in place. Bell v. Wolfish, Ingraham v. Wright, etc…
Well, the administrative procedure would satisfy procedural due process; it wouldn’t satisfy substantive due process. Bell v. Wolfsh lays out the factors that must be considered to determine if governemtn actiona gainst a pre-trial detainee constitute a punishment (and are thus impermissible under the Fifth and Fourteenth Amendments:
Here, they don’t point in differing directions. The tasering of an arrestee certainly suggest retribution and deterrence, it is highly excessive in relation to the supposed rational purpose assigned to it (training of police), and certainly tasering like that (as opposed to enforce complaince with directives) is the kind of conduct that is historically regarded as punishment.
If that’s so, he must be pissed he’s not entitled to a civil jury trial when the amount in controversy exceeds $20.
I am not sure how the tasering of suspect came into this, but the situation that would be closer to the to the issue in the 60 Minutes interview is the ticking bomb scenario.
If there was probable cause to believe that the suspect had participated in the planting of a nuclear device in New York City, would torturing the suspect to get information (but not to use as evidence in a trial) be a violation of substantive due process? Is it grossly excessive to torture one person to save thousands?
Justice Scalia’s position in the interview seems to be this is not punishment of any kind; it is information gathering. And taking into account Justice Scalia’s view of substantive due process, I do see how he could find this a violation of the Constitution.
Would you say that if legislation was passed authorizing the torturing of properly detained suspects, who have been given an administrative hearings, to gather information that will not be used to incriminate the suspect, the torutre would be a violation of the Constitution? Do you think Justice Scalia would say it is unconstitutional?
With respect, your idea of the purpose of the Supreme Court scares me.
I recommend you take a long, hard look at the line of cases from the early part of the 20th Century where the Court utlized it’s “conscience” to disallow most of the progressive legislation passed by the states and the federal government intended to protect common people. Such as various statutes limiting the number of hours that could be required of workers in certain industries. Etc. The seminal case is Lochner v. New York; it’s referenced and linked by me earlier in the thread.
The important thing to keep in mind whenever the Court substitutes its own judgment or “conscience” on matters is that you won’t always agree with the decision it reaches. The Lochner era Court wasn’t filled with a bunch of right-wing heartless bastards who didn’t care about the common man. But they felt strongly that “liberty” included certain rights, including the right of the entrepreneur and the working man to strike whatever bargain they wished in reaching their goals. They saw government action of a protective nature to be an unconscionable meddling in the affairs of the common man, restricting his “liberty” without any due process. And it took 30 years for us to get the Court to rescind that theory, and we damn near had a constitutional crisis in the process (read up on the Court-packing controversy from the presidency of FDR).
And yet, before you condemn the idea of not using the obvious meaning of words in interpreting the Constitution, please keep in mind that the average person, reading that the government isn’t supposed to deprive us of “life, liberty or property” without due process of law would probably come to the conclusion that that simply means they can’t take our property, kill us, or put us in jail/prison without such due process. Yet, the Court (using the meaning of the word “liberty” that goes back to the first usages of the concept in this vein, back well before the Constitution and the Bill of Rights were adopted) has regularly interpreted “liberty” to mean more than “the right to be free from jail/prison.” And Justice Scalia would be the first person to scorn anyone who tried to assert that “liberty” doesn’t mean any such thing as, say, the right to vote, or the right to be able to associate with whom you wish, or the right to travel among the states, simply because the word “liberty” doesn’t mean these things to an average person.
A quibble. A small thing, but thats the trouble with quibbles…
The right to vote is not a “liberty”, a liberty is a human right, self evident and endowed by the Creator (Hairy Thundermonger or Cosmic Muffin, YGMV). To commit to preserve liberty is to commit the preserve all of the human rights that, in sum, comprise liberty. The other things mentioned clearly fit with that, as does the right to privacy and the right to fuck any competent adult who will let you.
The right of vote is a special privilege for citizens only. We have an obligation to respect, preserve and promote the human rights (liberty) of all persons, but we are only obliged to extend voting rights to our own. By the same token, we are obliged to make certain, to the best of our powers, that those who have the right to vote can do so with the least hindrance, the least loss of liberty, as we can manage.
Outside of that minor point: pip, pip, good show, that.
I think those folks advocating that SCOTUS justices use their (the justices’) moral compasses don’t really mean that. They mean they want the justices to use the moral compass that they would use if they were on the court. Good luck with that!
That was the hypo posed by Rhythmdvl. I know this is a monster thread, and it gets hard to track everything that’s been said.
My own view is that it wouldn’t be acceptable, simply because torture to obtain information produces poor results.
I believe he’d say it’s unconstitutional based on the previously established case law.
That is a policy decision, not a legal decision. If the legislative and executive branches have both determined that torture is effective and the best policy, who is the Supreme Court to disagree? Do you think the proper role of the Court is to overrule the legislative and executive branches’ policy decisions on what will produce the best results? That sounds like the most naked form of activism.
What case law? I am not aware of any case law that is directly on point.
Groan. Dare I hope you got that out of your system?
Now, remember, however snarkily, the guy who asked for dumbing down was you, so I don’t want any badgering the witless in my court, counselor. Dont bug me about nuances, or I’ll make a Motion to Fuhgedaboutit.
The Eighth Amendment does nothing of significance beyond forbidding cruel and unusual punishment. Agreed. Strict reading or loosey-goosey, thats it.
But it underlines a point. That the Framers (not including Jefferson, who kept in touch by c-mail…) were gentlemen of the Enlightenment, determined to a new order free of the corruptions and madness of Yurp. As well they might.
I doubt very much that they considered any necessity for stating an abhorrence to cruelty and torture, any more than they thought it necessary to deplore sexual relations with livestock. (There weren’t many Scots immigrants at this time, and the first Aggie had yet to be born…)
What the 8th does do is underline that abhorrance for cruelty, it emphasizes a determination that even the lowliest and least deserving - criminals - shall be safe from cruelty.
Hence, the main reason there is no prohibition against cruelty (torture) generally is that it wasn’t thought needful. Why state the obvious?
A strict reading of the Constitution under the rigid and stifling principles of “textualism” does not, to my eye, reveal any such stated prohibition. There is much civilized talk about rights, and all to the good. But no such clear and unequivocal prohibition. Except that liberal activist judges have, correctly, interpreted the Constitution to forbid torture. The fact that the Constitution does not directly support this decision troubles me not at all. Now, if I were afflicted with terminal textualism, it certainly would.
I’m ok with the interpretations, the penumbras, the whole shebang, and a fig for literalism and originalism. Rest a worthy conclusion on a questionable rationale, I’ll get over that. When the issue is something as appalling as torture, there simply isn’t any question of respecting abstractions over humanity. One simply doesn’t.
Thats the explanation, here’s my beef.
But what I’m not ok with is those who claim that an absence of expressly pertinent text regarding a human right somehow means that the Constitution does not protect that right. The “Nothing in the Constitution about ______” crowd, may the Baby Jesus shut their mouth and open their mind.
That rationale is doomed by its own internal inconsistencies.
That’s it.
They were? I’ve heard they were basically a bunch of moneyed white guys, intent on making sure their business interests were secure, and that they (the white guys who owned property) secured the rights and privileges for themselves that they would have had as landed gentry in England. The government they set up was pretty elitist, to use a phrase being much bandied about lately. Property owners only were allowed to vote. Senators were elected, not by the hoi polloi, but by the state legislatures. No king, of course, but not what we’d recognize as a government of the people by the people and for the people.
I’m sure a few of the Founders were “gentlemen of the Enlightenment”, but all of them, or even most of them? I’d need a cite for that.
Or, alternatively, I could say that’s what I think and if you can prove otherwise, have at it.
How odd. I took elucidator to task for this very generalization not a few days ago. I’ll re-post:
The framers were radically egalitarian. In each state, more people were enfranchised to vote for the Constitution than any time in human history. While there was no direct referendum most states waived their normal voting restrictions, including property and race-based ones, in the voting to select delegates to the ratifying conventions. Similarly, most states exempted delegates from property qualifications even though they required them in their legislatures.
Many times the constitutional convention included or decided not to include provisions because they knew they had to in order to get the document ratified by “we the people.” If the framers were attempting to secure the existing system of aristocracy, they did a pretty poor job of it. No aspect of the government they set up was more elitist than existing governments, and many aspects were considerably less elitist. By any fair historically-accurate standard, the government they set up was markedly egalitarian. They did not create property qualifications for the national legislature, even though they existed in almost every state. Indeed, they went out of their way to prevent an aristocracy from forming by banning titles of nobility and creating age requirements for eligibility (to prevent popular sons from winning elections on name recognition alone).
For many states, joining the union was decidedly against their economic interests. New York was the source of most of the young nation’s funds in the early days. They lost money on the deal.
The founders were after glory (and security), not wealth.
Well, since you’ve got the facts at your fingertips, perhaps you would answer John’s request, a cite for sore eyes, to be sure.