I believe that the cure you propose is worse than the disease.
If you’re sanguine with judges taking the opportunity to end an evil by a questionable legal call, what do you say to the judge who decides that the Constitutional guarantee about not depriving anyone of life without due process of law applies to the unborn, and therefore no state can sanction abortion?
Your vision of how things should be works fine when the judges agree with you, yes. But the whole point of having a system of laws is that it has to work even when we don’t agree with the players.
And to Scalia’s great credit, he was a champion of the rule of law over the rule of men.
You can believe that his interpretive method was designed to support his views, or that it was not sincerely applied, but he made it utterly clear that you have to have a method. And even the liberals now concede that their method must be tied to text.
I expect that Justice Ginsburg would reject an Eighth Amendment torture suit if brought prior to criminal conviction. Though, to be pedantic, the problem is not that it involves punishment, but that it involves pre-trial punishment (in the Gitmo context).
In the case of torture though, there’s no good, benevolent, sensible, honest, moral, ethical, reasonable, logical reason to believe that cruel and unusual punishment should be banned after conviction on criminal charges but that cruel and unusual treatment of people under government control in non-post-conviction circumstances is perfectly okay.
Yes, based purely on the cynical parsing of words, you can make such an argument, but no one of good intent would do so.
The fact that there is a long line of decisions making such a patently ridiculous distinction just shows that there have been men of evil intent holding powerful positions throughout history.
I agree. The judge should try to make the right legal decision. If that leads to an unconscionable result, he or she is free to say so in the opinion. You sometimes, (rarely) see this. Something like “I am constrained by prior case law and a fair reading of the statute and the constitution to conclude that the Government’s efforts to outlaw electric vehicles in permissible. It is, however, in my opinion, terrible public policy and short sighted. [insert several pages of persuasive argument here] That opinion carries no weight in my duty to to resolve the legal question before me, and I can only urge Congress to re-examine this question as soon as possible.”
On the other hand, most cases, (especially those that are worthy of Supreme Court review) have valid arguments for and against. It takes a strong grounding to decide a case contrary to your own convictions when world-class attorneys are arguing that you can (and in fact, must) rule the way you would like.
In my layman’s way, I’ve been looking around for 8th Amendment cases and I can’t seem to find any relating to interrogation-torture. In cases where people sued for civil-rights violations by police, it always seems to be on 4th, 5th or 6th Amendment basis.
As far as I can tell, there’s no 8th Amendment precedent regarding treatment by police (and presumably law-enforcement officials and government agents in general) and I gather the judiciary has no active interest in creating one, though I’m open to edification on the matter.
So this petty bickering over the 8th Amendment is burying the lead. Scalia didn’t think that torture was unconstitutional under *any *provision of the constitution.
This isn’t a legal/academic argument of the role of the 8th Amendment in the context of the constitution as a whole in which we say, “Well, technically it’s not the 8th amendment that covers it; but yeah it’s obviously unconstitutional under X provision.”
This is a statement by one of the highest jurists of the land that pre-conviction torture isn’t unconstitutional. This is a clearly absurd result. You can’t torture someone after conviction by due process, but hey before that, have at it. Only a moral degenerate would say that with a straight face.
Talking about asshole decisions, I vaguely remembered one from several years ago where the Supreme Court ruled that it was OK to evict elderly tenants from government housing if anyone even loosely associated with them was caught using drugs — even outside the apartment, even completely without their knowledge. An elderly grandmother in Oakland was served notice because her grandson was caught smoking dope in a nearby parking lot. A 79-year old partially paralyzed man was served notice because his in-home care provider was caught with drug paraphernalia.
Anyway, I googled it to make sure I was remembering it right, and I almost was.
Except that I assumed it was the usual 5-4 decision, led by then Chief Justice Rehnquist. But in fact, the decision was 8-0 (Breyer recused himself because his brother had ruled on the case in a lower court). I guess maybe they’re all assholes.
As a matter of fact, should be in the next 6-12 months, probably by year-end. Now if just a couple more of these old right-wing geezers can croak for my benefit, I’ll be happy.
They may not have said so in their ruling, but it is the only possible interpretation of their stance. Without believing that a fetus is a “legal person” there can be no anti-abortion standpoint. Without that belief, abortion is as morally uninteresting as having a tooth pulled, and no high judge or justice has ever ruled against dentistry.
No, it’s not absurd. You see what you did there? You switched from the first sentence - what is or is not constitutional - to the second sentence: whether or not it should be done.
The Constitution does not prohibit all terrible things. You seem to think that it’s an obvious conclusion that somehow, somewhere, the Constitution forbids every single terrible thing there is. “Torture is terrible, therefore it is unconstitutional.”
But that’s not correct. The Constitution does not forbid all evil any more than it mandates all good. It simply lays out the powers of the federal government and the limits on the power of states and federal government.
What makes you think that it is also somehow a barrier against all things horrible?
Not true. The Court specifically said, in Casey, that the unborn are not legal persons, but the state nonetheless has a legitimate interest in protecting a fetus “that may become a child.”
That is a far cry from ruling that they are legal persons, and even farther from the specific finding that they have a right to life under the Fifth Amendment. That’s a very specific finding which no federal judge has ever made, and which is not even implied by any extant judicial opinion.
Correct? If you disagree, please cite the case in which the judge says otherwise, or issues a ruling which cannot be explained except by invoking a FIFTH AMENDMENT right to life.
What part of the Constitution did you think was violated by the city of Oakland when it placed in its lease the provision that any drug-related criminal activity on the premises, engaged in by the tenant, any member of the tenant’s household, or any guest or other person under the tenant’s control would be cause for termination of tenancy?
You call this the Supreme Court sAying “it’s OK,” and you’re shocked, as though you expect them to literally decide whether that lease provision is a good way for Oakland to act.
The Court is not Daddy. It’s not Mommy, and the Constitution does not include some section that says, “Government cannot act wrongly.”
You call the eight unanimous justices in that case assholes. But specifically why? What part of the federal Constitution is offended by the Oakland Housing Authority putting such a rule in their leases?
Are you just hoping the Court will assert it has the power to fix all wrong things?
It was a 2002 case, so it’s not a burning issue, and I’m not going to waste my time debating it, or even checking my facts; I just don’t care enough, or I would have started a new thread about it. But IIRC, the lease was written such that the drug use did not have to be on the premises, and the person did not have to be under the tenant’s control; it could be an adult guest who did drugs in another part of town. And also IIRC, a widely reported Rehnquist quote was not about the fine points of law, it was along the lines of, “Hey, she signed the lease,” as if she should have carefully studied the legalese, and then turned down her only chance of a decent apartment she could afford. Being legally correct doesn’t mean he’s not an asshole.
You tell me, do you think it’s fair to hold an invalid responsible for what his nurse does without his knowledge? If the lease had fine print that said they get to chop off his arm if a roach is found in his apt, should the Supreme Court say “tough, you signed it”?
No, I didn’t. I considered the possibility that they are.
That would be impossible. But they can fix the wrong things that they rule on. Who else will?
They should say, “What provision of the Constitution does this term violate?”
Their role Is not to fix wrong things. The courts are not super-legislators.
If you expect them to be, I can understand how you would be hurt and disappointed by their frequent failures.
But the problem is your expectation. It’s wrong.
A provision that a tenant’s arm is chopped off for having roaches is void as a matter of public policy: we don’t permit contract terms like that to be enforced. But there’s no such prohibition against evicting a tenant for having roaches.
You may feel it’s mean to do so. The Court does not assess “mean.” It decides whether the Constitution prohibits the action.
Do you think some part of the Constitution stops the city of Oakland from evicting tenants under the circumstances of this case? Which one, specifically?