And you think the Court should ignore the plain text of the 5th Amendment because you think torture is a bad policy.
Because this “special blessing” of which you speak is a bar set too high. It allows, even today, the execution of prisoners. That’s not considered cruel and unusual. Now, why can’t the state just execute me on arrest, but it can execute a mass murderer? Is there, perhaps, some other amendment that protects me from that fate?
Clearly, then, the 8th is of little use to non-convicts. According to your interpretation, it protects me from torture, but it doesn’t protect me from being killed. That contradiction alone tells us that the 8th offers no protection to non-convicts.
No. But I do think the chaos that would created by trying to unravel all the years of case law that rests on other interpretive methods would be disastrous.
No, sadly thanks to the Slaughterhouse Cases, he is forced to accept the use of the “due process” clause’s protection of “liberty” to protect what should be considered a “privilege or immunity” of being a citizen.
But, yes, the way that the 5th and 14th amendments have been interpreted to protect your “liberty” interest is a classic example of why someone like Justice Scalia is hesitant to start re-inventing the meaning of the words “cruel and unusual punishment.”
That is not what you wrote before:
So, is it because it produces bad results or the difficulty of interpreting the case law? Should the difficulty of interpreting the case law be a valid reason to go against the plain text of the Constitution? Is it the Constitution itself or activist decisions that has made a torture unconstitutional?
“Acceptable” and “constitutional” are not synonyms.
It’s poor public policy for plenty of reasons. It’s ineffective because it produces inaccurate results. It’s unconstitutional because of extant case law.
So, if it is unconstitutional only because of the case law, do you agree that the Constitution itself does not provide a complete ban on torture? Is torture only absolutely unconsitutional because of activist decisions?
Can you tell me what specific cases establish that torture used to gain information that will not be used as evidence in trials is unoconstitutional when the use of said torture mets all the requirements of procedural due process and when the torture does not met the requirements of being punishment as discussed in Bell v. Wolfsh? Or put it another way, what specific cases provide that the torture legislation I presented would be be violation of substantive due process?
No.
The Fifth Amendment provides:
What does that mean? It cannot simply refer to the existence of a law. That would be “without process of law,” not “without DUE process of law.”
We look to what this term meant to those who wrote it. Did they just invent the phrase? If they did, we could not fairly ascribe any particular meaning to it. But the phrase has its origins all the way back in chapter 39 of Magna Carta, in which King John promised that ‘‘No free man shall be taken or imprisoned or disseized or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.’’ The phrase ‘‘due process of law’’ first appeared in a statutory rendition of this chapter in 1354.
It’s clear, then, that what this phrase meant to those that chose to insert it into the Constitution had a very specific meaning. As Sir Edward Coke observed in Institutes of the Laws of England, the proposition that the term ‘‘by law of the land’’ is equivalent to ‘‘due process of law,’’ which in turn was ‘‘by due process of the common law,’’ that is, ''by the indictment or presentment of good and lawful men . . . or by writ original of the Common Law."
When would torture NOT meet the requirements of being punishment as defined in Wolfish?
But that is a formulation of due process that is rejected by Justice Scalia (and Thomas) and many originalists.
We can debate if it should be rejected, but the issue that developed in this thread, as I understand it, is to examine if Justice Scalia thinks that torture is ever constitutional. Since you already said the legislation I presented does not violate procedural due process and since Justice Scalia does not believe that substantive due process is a constitutional right, would you agree that under Justice Scalia’s view of the Constitution, the legislation I presented does not violate due process?
In the situation I provided:
affirmative disability or restraint which is a sanction approaching the ‘infamous punishment’ of imprisonment - I do not see how this applies. The person is already being held in custody and the torture is not any closer to imprisonment than the detention.
whether it comes into play only on a finding of scienter - no finding is necessary
whether its operation will promote the traditional aims of punishment - retribution and deterrence - absolutely not. It used to gather information
whether the behavior to which it applies is already a crime - I do not think that be suspected on having information about a terrorist attack is a crime, participation in the planning would be
alternative purpose to which it may rationally be connected is assignable for it - to gather information and prevent death
whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry - one person feeling pain vs. thousands (maybe millions being killed)
So maybe one of factors points toward it being punishment. Is that enough?
I think you’ve focused myopically on Scalia’s commentary about construction to the exclusion of his overall approach to juridprudence. What does Scalia think about the value of precedent?
It is fuzzy. Are you saying you know how he would apply his rules for stare decisis to the issue of torture for information gathering? Where are the cases that address the issue of torture for information gathering (not punishment)? Let’s look at the interview transcript:
It is Justice Scalia that first says that torture is not necessarily covered by the Constitution. The only way to read his statement in the context is as saying that not all uses of torture violate the Constitution. This is before Stahl has brought up the issue of the 8th Amendment. Now, we don’t know what is left out of the transcript, but from my reading Justice Scalia is saying that torture is barred as punishment (under the 8th Amendment), but it is not barred in general and it is specially not barred for information gathering.
I am not aware of any case that says torturing a person for the purpose of information gathering (and not for punishment) is a violation of the procedural or substantive due process or any part of the Constitution. Can you cite such a case?
This would almost certainly fall under the Fourth Amendment’s protections against excessive force in interrogation. See Graham v. Connor 490 U.S. 386 (1989). It would likely also meet the “shocks the conscience” standard in County of Sacramento v. Lewis, 523 U.S. 833 (1998); see also Chavez v. Martinez, 538 U.S. 760, 774 (2003) (Thomas, J., joined by Rehnquist, C.J. and Scalia) (reviewing challenged police conduct under “shocks the conscience” standard of substantive due process case law); id. at 796 (Kennedy J., concurring in part and dissenting in part) (“*t seems to me a simple enough matter to say that use of torture or its equivalent in an attempt to induce a statement violates an individual’s fundamental right to liberty of the person.”).
I have been saying the 5th Amendment is irrelevant to torturing for the purpose of gathering information when the evidence will not be used in a criminal trial. This seems to confirm that.
But I do not see how torturing a single individual to save thousands (maybe millions) is a violation of “objective reasonableness.”
Did you read Scalia’s concurrence in Sacramento v. Lewis were he has nothing but contempt for the “shocks the conscience” standard?
I’m not saying my answer helps or hurts your specific argument, I was just answering the specific question you asked, which was whether any constitutional provision forbids it according to caselaw. The answer is yes.
Are you saying that the 4th Amendment can forbid torture or that it does in fact forbid the specific torture I case I made up?
Well, the scenario you made up would present an unprecedented fact pattern, so naturally there is no precedent. But by reverse incorporation, the court’s reasoning in the cases I cited will likely be flipped (i.e. not Fourteenth but Fifth).
Regarding the Fourth in particular, I don’t think you’ve provided enough facts to say for sure. If the custody was part of a Fourth Amendment arrest and pre-conviction, then yes the prohibition on excessive force would likely apply. I think the court strongly suggests in Graham that the Fourth applies to issues of excessive government force until the Eighth does.
Even if you could argue for some gap between them, that would mean that Graham does not preclude a Fifth amendment “conditions of confinement” claim within that gap, which I think would also go the citizen’s way in your hypo.
I suppose its possible that a court would find torture to be objectively reasonable. It would clearly depend on the facts. But it is unlikely given the rest of the case law.