Yes, they HAVE been asked this question before. When they accepted a case called Ingraham v. Wright, which asked them to declare that paddling schoolchildren was “cruel and unusual punishment.” No, they said, and they discussed their many previous answers to this question:
This is getting to the level of the absurd.
First of all, let’s keep terms straight. There is a Constitution. Then there are US laws. The scope of the laws is much wider than the scope of the Constitution. The federal government could, for example, pass a law that says: it is unlawful to torture Iraq’s citizens in Iraq; punishment - upon conviction, three years in prison. Now, I am a resident of the United States and I go to Iraq and I torture an Iraqi citizen, who is not convicted of any crime by a United States tribunal. Am I in violation of the law in question? Yes. Can I be convicted and sentenced? Yes.
Was my action a violation of the United States Constitution? Probably not.
Understand what this means: it means that the Iraqi citizen cannot attempt to obtain redress for my actions by asserting a cause of action under the Constitution. It does NOT mean that there are no other causes of action available to the Iraqi citizen.
This should COMFORT you, not scare you. Do you realize how MUCH litigation occurs under the Fifth and Fourteenth Amendments of the Constitution? Would you REALLY want people from anywhere in the world able to sue under the provisions of the Constitution for every possible impact of every decision our governmental bodies make? Can you imagine the result? Suits by people in Mexico for the denial of due process resulting from actions by border cities in siting factories? Suits by people in Europe over decisions by the federal government on emissions into the air? I mean, think about it.
You should apologize, because you’ve essentially admitted that you’re willing to advance a weak or spurious argument just to reach the end goal you desire. That should not be the method by which we interpret the Constitution.
Personally I think it does not take a broad reading of the Constitution to apply a prohibition against cruel and unusual punishment to encompass torture at any time. Seems self evident to me so yeah it seems I “know” the answer and naturally I make my case in support of that.
But you and other legal eagles say no, it is not written to apply to anything except as a punishment after you have been found guilty of something or other. I have to accept that as a feature of the legal system I guess but I find it amazing laws would be written like this. That they must be defined separately in laws as to who and when torture is not permissible rather than a simple law that just prohibits torture across the board in any circumstance by anyone acting in any capacity. If we hypothesize some rare example of beating the snot out of someone to prevent a nuke going off in New York in 12 hours then the President can pardon that case.
As to Scalia he is no dummy and had to know what Stahl was driving at. Perhaps we should expect better preparation from her to frame the question more precisely but we are not all Constitutional scholars. Scalia could have answered that if she was looking to seek a prohibition in the Constitution against torture she is barking up the wrong tree with the Eight Amendment and would be better off appealing to the Fifth (or something else more germane). Scalia was not talking to a law class or other Justices that he should expect to figure these things out. He is speaking to the public most of whom will not know the subtleties of law and it is incumbent upon him to help educate the rest of us when he agrees to an interview like this.
I would be interested in seeing the unedited tape of the interview, because I have a suspicion, based solely on what I know of Nino Scalia, that he would have expanded on his point in exactly that way.
As I just posted above why would you not expect me to argue my position that I feel correct?
That legal eagles interpret the constitution differently I have to accept but (pardon my French) it is fucked up and something is amiss in the legal system.
Again, that an Amendment against torture only applies after you are convicted seems insane. The implication being that the Constitution will not protect you from torture at the hands of the government any other time, only as a matter of sentencing. I cannot believe this is what those who wrote the Constitution had in mind. Or, that they would separate out “no torture” into separate parts to define different times when it may occur. Is a simple “no torture, period, end of story, no loop holes” clause too much to have expected?
But the attorneys here seem to be saying that the very narrow definition is exactly how it is interpreted. Nevermind what the dictionary and simple understanding of the English language would have us suppose. Moreover why you are ok with it being that explicit and not covering anything else beyond its very narrow purview I find equally disturbing.
How much do you know about “those who wrote” the Constitution?
Who said that, and when? And why?
First of all, I am not a legal eagle. But those who are have said this. Still, did you read Bricker’s post #101? The freakin’ Supreme Court said it is so!
Actually, I would expect **Sacalia **not to do that, since he doesn’t suffer fools gladly and is not in the habit of helping people out as they stumble through a faulty argument.
No one is saying that the constitution doesn’t protect you. Stop acting as if the 8th amendment were the entire constitution! Please go back and read post #94.
I dunno. Which of them does agree?
Yeah, I could do the research, but either you asked a rhetorical question or you have the answer in hand already and that will save time.
So, which is it?
My point there is I simply cannot see anyone sitting in a room and penning a new amendment that includes a prohibition against torture to think, “Hmmm…this should only prohibit torture at the hands of the government after they have arrested and convicted you…I’m cool with them knocking the snot out of someone any other time though.”
Seems like a simple “Reasonable Man” case to me. If you have evidence that they did want to be that explicit and allow torture at other times I would be fascinated to hear it (really).
Why not, when they had already written something earlier that prevented them from doing that before they convicted you? Please go back and read post #94 before you post in this thread again. Can you do that? Please?
I get it. Really. Although how our government still manages to side step all that anyway I find amazing but that is another thread (and already been done I think).
I do however still think the the Eighth Amendment could (or should) be read to encompass a prohibition against torture across the board just from a simple, plain language reading. That it applies only to punishment after conviction is how it is I guess but seems crazy to have to explicitly spell out no torture separately as a “before” and “after” you are convicted deal. A simple, unambiguous, “Thou shalt not torture” would have been welcome.
There must be some universal rule that laws cannot be written in anything the average man is meant to discern.
Samuel Livermore, New Hampshire Representative, to the First Congress under the US Constitution, 1789. He also said, " If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent of the Legislature to adopt it; but until we have some security that this will be done, we ought not be restrained from making necessary laws by any declaration of this kind.” Which seems to support the notion that the constitution is a living breathing document subject to change and interpretation.
Well, they have not done this (and gotten away with it) to US citizens, nor have they done it on US soil. They’ve gotten away with it because they have interpreted the laws against torture very broadly, and they have only done this to non-citizens on foreign soil, and no one has been able to bring a court case against that interpretation. Yet. Although I doubt anyone will successfully do that in the future.
Quoting Ingraham, I noted above that every decision of the Supreme Court considering whether a punishment is “cruel and unusual” within the meaning of the Eighth Amendment has dealt with a criminal punishment, and when the Court has considered claims that actions outside the criminal process constituted cruel and unusual punishment, it has always, without any exception, found the Eighth Amendment doesn’t apply.
Yup.
No. He’s not arguing that the Constitution be re-interpreted. He’s saying that when the legislature figures out a better way to deter crime, they should enact it into law, but in the meantime, we still need to be able to cut off ears when appropriate.
That is the effect of his statement: "but until we have some security that this will be done, we ought not be restrained from making necessary laws by any declaration of this kind.” Which means that if his qualification is met (“we have some security that this will be done”) , a declaration by the Constitution restraining such laws is now justifiable, opening the door to all kinds of penumbras and emanations.
Not used against US citizens? Well…
No. You are misreading what he said.
The statement has to be kept together with the prior sentence:
The “declaration of this kind” is the language “no cruel and unusual punishment is to be inflicted.” He is saying that it is needful to hang men, whip villains, and cut their ears off. If something less onerous will work, the Legislature should adopt it as a method of punishment. But until that is likely to occur, the language about “no cruel and unusual punishment” should not be used to prevent hangings, whippings and the cutting off of ears.
The flip side of his statement is not that the constitution should be re-interpreted, but that, if it turns out that some less onerous punishment will serve, and becomes adopted, then it would no longer be necessary to “make necessary laws” such as those allowing for hangings, whippings and ear loppings.
In short, the speaker was emphasizing that, whatever the meaning of the phrase “no cruel and unusual punishment is to be inflicted,” it should not be read as to preclude necessary measures such as hangnings, whippings and ear loppings, thus answering his own rhetorical question, “are we in the future to be prevented from inflicting these punishments because they are cruel?”