Justice Scalia on 60 Minutes: Scary Quote

[Ravenman]

@Fear Itself

If you continue to misquote Samuel Livermore, I suppose you can conclude anything. I don’t see how his statement can be interpreted other than how I have explained it.

I can’t help but think that you have radically misread this quote. DSYoungEsq is entirely correct in his interpretation:

@US Information Agency's pamphlet explaining the Bill of Rights

Livermore’s comments need to be understood in the context of the discussion. He did not, in the abstract, oppose humane punishments; rather, he was concerned about whether they would be effective. In this, he caught the notion that as society changes, so do ethical norms. At one point, drawing and quartering were considered an appropriate punishment for treason, and the fact that it was cruel and caused terrible suffering only made it even more suitable in the minds of people then as retribution for the most serious crime against the government. In 18th-century America, Livermore was in a minority, as he would have preferred to trust the legislature not to impose inhumane sentences, while retaining the right to use whatever means might be suitable in order to prevent and punish crime. A majority, however, favored putting certain limits on the government; the authors of the Bill of Rights, as well as many people of that Founding generation, had no great trust in government, and they knew from first-hand experience how unrestrained authority could behave.

Link.

[Ravenman]

Oops.

[Two_and_a_Half_Inches_of_Fun]

I have not read through this whole thread, but in case nobody else has pointed it out, Justice Scalia does not propose looking at original intent. He is opposed to the idea of original intent.

[John_Mace]

@Two and a Half Inches of Fun

I have not read through this whole thread, but in case nobody else has pointed it out, Justice Scalia does not propose looking at original intent. He is opposed to the idea of original intent.

There is more to it than that. He states that we cannot know original intent, and should therefore stick to the text unless the text is unclear, in which case one might try and discern original intent as best one can. But one needs to recognize that not every person who signed the legislation, or the constitution or its amendments, had the same intent in mind. All we know is that they all agreed (or a majority agreed) to the text as it was written into law.

[Richard_Parker]

John Mace, I think he opposes intent even in that instance. When the text isn’t clear, we look to how contemporaries interpreted the text, which is different from what the framers intended.

[John_Mace]

@Richard Parker

John Mace, I think he opposes intent even in that instance. When the text isn’t clear, we look to how contemporaries interpreted the text, which is different from what the framers intended.

OK. I could have gotten that part wrong. At any rate, the key to his opposition to using original intent because there is no such thing-- there are many original intents, and we have no good way of knowing what they all are in most cases.

[Evil_Captor]

@Bricker

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.

Yes, the Supreme Court has always very consistently been completely wrong about the Eighth Amendment. Someday the scales may fall from their eyes. We can only hope.

[DSYoungEsq]

@Little Nemo

We’re losing focus on the most frightening thing Scalia said:Frightening because constitutionally, this is true. Scalia is a Supreme Court Justice - he has the power to make something constitutional just by saying so (assuming he can get four of his fellow justices to agree).

“It happens to be correct” not because it is his opinion, but because, unlike so many who have posted in this thread, he actually knows his constitutional law. His statement is an assertion that he is correctly stating the status of Eighth Amendment law as it exists.

What a few of us have been trying to do is explain how this is both true, and not so much of a radical notion as some people seem to think it is. Somehow, that fact seems to be lost throughout this thread. I see that Evil Captor has managed to lose it again, in the latest posting.

[DSYoungEsq]

@Evil Captor

Yes, the Supreme Court has always very consistently been completely wrong about the Eighth Amendment. Someday the scales may fall from their eyes. We can only hope.

Yes, the Supreme Court has always been very completely wrong about interpreting the language of the amendment precisely as it has been interpreted since it was first used in 1689. :rolleyes:

[Bricker]

@DSYoungEsq

Yes, the Supreme Court has always been very completely wrong about interpreting the language of the amendment precisely as it has been interpreted since it was first used in 1689. :rolleyes:

They don’t know. Only Evil Captor knows The Truth.

[Diogenes_the_Cynic]

As much as it pains me to do this, I think I’m going to have to concede that Justice Scalia might have been right on the pure 8th Amendment question, but I think he also should have made it more clear that other parts of the Constitution redtrain the government from tortyre.

[Bricker]

@Diogenes the Cynic

As much as it pains me to do this, I think I’m going to have to concede that Justice Scalia might have been right on the pure 8th Amendment question, but I think he also should have made it more clear that other parts of the Constitution redtrain the government from tortyre.

Who are you, and does Diogenes know you’re signed on to his account?

[DMC]

@Bricker

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:

You left out a WHOLE lot of text that makes this a bit more nuanced than you’re making it seem. A lot of the decision was based on the different circumstances under which students and prisoners find themselves, and the numerous possibilities for redress that are afforded students. The differences between “enemy combatants” (whatever the hell that means today) and criminal prisoners is not nearly so great in those areas. In fact, the enemy combatant probably has far fewer remedies at his disposal than a convicted criminal. While I don’t doubt that today’s court would allow us to bugger enemy combatants with nightsticks, I’m betting the justices in Ingraham v. Wright wouldn’t have come to the same conclusion regarding the issues under discussion. Obviously, that’s just an opinion, but I think a sound one, based on the opinion put forth by the majority.

[MovieMogul]

From The New Republic:

The simple fact is that more than two centuries after the Eighth Amendment’s adoption into the Constitution, the justices still can’t agree about the most basic aspects of its meaning: Does it prohibit a static list of brutalities feared by the Founders or is it flexible–a prohibition against whatever punishments a given age regards as beyond the pale? If the latter, how should the court assess what a given age regards as out of bounds? Should it rely on acts of state legislatures and, if so, how many states’ outlawing a practice should suffice to make it off limits constitutionally to the others? Should the court look to foreign law? Can it consult public opinion polls? And what happens, as with executing child rapists, when states want to open the door for a practice that has been decades in disuse. Is the Eighth Amendment a one-way ratchet–a device that can remove punishments from the policy table but which never puts them back on it–or is there some mechanism by which the court can acknowledge that societal mores sometimes evolve in a more punitive direction? Most fundamentally, should justices–as some openly reserve the right to do–use their own judgments in deciding whether the amendment bars a given punishment or are they bound to some list of objective indicators?

The justices disagree with one another profoundly on all of these questions–and, to varying degrees, these disagreements were all on display last week. The result is a jurisprudence without accepted standards or methodologies on a series of hot-button issues, mostly related to the death penalty, and this leads inevitably to the most political of judicial decision-making. No rule articulated today gets followed tomorrow. And every case, earnestly argued in the language of law, in reality presents a kind of political gut check: Is the challenged practice, in the view of the only nine individuals who matter, okay or not?

The woeful state of the Eighth Amendment is, truth be told, not the fault of the current crop of justices. It is a mess they inherited, one that dates back nearly a hundred years to the court’s earliest efforts to interpret the Eighth Amendment. The court has always spoken in vagaries on this subject–describing a flexible, dynamic prohibition but consistently failing to articulate the precise mechanism by which a practice goes from constitutional one day to verboten the next. Against a backdrop of this sort of mush, every justice has little choice but to follow his or her own instincts or else, as Scalia and Thomas do, to reject the premise of a century’s worth of case law. The result is that cases that should be easy under the amendment’s plain language become agonizing and cases that could be resolved on the basis of evidence and principles become impressionistic.

[DSYoungEsq]

Interesting, but irrelevant. No one here is arguing the issue of whether or not “torture” would be “cruel and unusual.” This is what gets all the hot debate in Eighth Amendment jurisprudence. Here, however, we are talking whether or not “punishment” is at stake, and as has been shown, that’s a more clearly defined issue, not really in dispute at all.

Diogenes, I suspect strongly that he did so attempt, and that was edited out by 60 Minutes. I long ago stopped watching that show, simply because I got tired of editorial slant being used as a substitute for an even-handed treatment of an issue.

[Whack-a-Mole]

Reading the article ArchiveGuy linked is this tidbit:

Justices Antonin Scalia and Clarence Thomas, meanwhile, argued that to violate the amendment, an execution method has to be intentionally painful, like the torturous deaths inflicted under the Stuarts in England.

WTF does that mean? Are those two just completely off their rockers?

If the state knows a given method of execution is unduly painful but they are not out to cause pain then it is ok? Say one set of a drug cocktail causes massive suffering but it is cheap whereas drugs that are painless for execution are expensive. The state says it is not out to cause pain, just trying to save taxpayer money. That then makes it ok?

Note I am not here to argue the merits of the death penalty and one may suppose being executed in and of itself may by definition cause some pain (mental anguish if nothing else as the prisoner is lead to his/her execution) but that does not mean it should be unduly painful if it can be avoided.

[Tristan]

@jtgain

Words should mean things and this “living and evolving document” nonsense only serves to make 9 judges our masters…

Yeah, it’s a shame the orginal framers included the ability to modify and add things to the document, since they intended it to stay just the way they wrote it. :rolleyes:

I’m clearly no expert, as I keep bouncing to Wiki for clarification and background on a lot of the stuff discussed in this AWESOME thread.

Words to mean things. But the truth is, things change over time. It is important to know that, and remember it. Occasionaly something will happen, and the courts will be forced to look at these new meanings… all to the good, as a system that does not change is doomed to fail.

The US idea of justice and truth is not something I would like to see fail. It’s bad enough that it gets stretched and twisted around!

[pingnak]

Any doctor can come up with a dozen ways to kill someone that’s completely painless.

Dope 'em up on a big OD of any central nervous system depressant and they’ll fall asleep and stop breathing. Game over in about half an hour.

Heck, put 'em under general anesthesia and harvest them to death if you really want the organs. I don’t see why this method isn’t used, as long as everyone involved is amenable and the condemned is otherwise healthy.

But back on topic…

I’m sure Justice Scalia both knows what he is talking about AND knew what he was saying. He seems like a bright and super eloquent guy. Like most good lawyers.

We probably don’t need to particularly demonize this guy. What he said didn’t sit right, but… well I mean, it could be a lot worse. Remember when Dubya mentioned he wanted Alberto Gonzales to be a supreme court justice? Bad enough he got to be Attorney General for a while.

[Richard_Parker]

@DSYoungEsq

Here, however, we are talking whether or not “punishment” is at stake, and as has been shown, that’s a more clearly defined issue, not really in dispute at all.

Just worth noting that it is important to distinguish Eighth Amendment “punishment” from Fifth Amendment “punishment.” While the Eighth Amendment deals with punishment after conviction (including conditions of confinement), punishment that occurs in the form of conditions of confinement before trial falls under the prohibitions of the Fifth Amendment.

So, to say that torture doesn’t violate the Eighth Amendment isn’t saying much, since most of the torture in question would be challenged under the Fifth (if there was a way to challenge it for aliens held abroad).

That said, many of the detainees at Abu Ghraib were convicted of crimes by a court, just not ours. It presents the unique situation in which we take over control of the punishment for people convicted by another nation’s court. So challenges to the conditions of confinement are presumably in the purview of the Eighth Amendment according to the above dichotemy.

As a hypothetical (to put aside the issues of the Constitution applying abroad), suppose we accept a bunch of prisoners from Iraq and house them in Florida. Then, if we torture them, under some circumstances it could be a violation of the Eighth Amendment (depending on the reasons for the torture). Right? Or is there some case which holds that the Eighth Amendment only applies to punishment we mete out when our court have convicted?

If that’s right, that suggests that Scalia’s statement hinges not on the definition of punishment under the Eighth Amendment, but the territoriality and jurisdiction issues.

[Bricker]

@Tristan

Yeah, it’s a shame the orginal framers included the ability to modify and add things to the document, since they intended it to stay just the way they wrote it. :rolleyes:

Changing the document by amending the text is the way they intended to change it.

Changing the document by means of simply deciding that the same words now mean something different than they did before is not the way they intended to amend it.