Scalia on Torture: "Not Everything That Is Bad Is Unconstitutional"

[babylonsister]

http://tpmmuckraker.talkingpointsmemo.com/2008/03/scalia_on_torture_not_everythi.php

Scalia on Torture: "Not Everything That Is Bad Is Unconstitutional"
By Paul Kiel - March 6, 2008, 11:27AM


Last month, Supreme Court Justice Antonin Scalia pronounced in an interview with the BBC that it was "extraordinary" to think that "so-called torture" might be prohibited by the Constitution.

Well, to the quotes from that memorable interview ("You can't come in smugly and with great self satisfaction and say 'Oh it's torture, and therefore it's no good'" and "Is it really so easy to determine that smacking someone in the face to determine where he has hidden the bomb that is about to blow up Los Angeles is prohibited in the constitution?") you can add this, from Scalia's speech at the University of Central Missouri yesterday:

Of torture, Scalia said: "It’s a bad thing to do. But not everything that is bad is unconstitutional."

I guess torture is different from "so-called" torture. So to review your lesson in Scalia jurisprudence for the day: so-called torture, i.e. face-smacking, "sticking something under the fingernails," and one presumes, waterboarding, inducing hypothermia, and the like -- that's OK. Not only is it Constitutional, it's "absurd" to say you can't do it. Torture, on the other hand, is "a bad thing to do" -- presumably because it's against the law. But still A-OK by the Constitution. Class is adjourned.

[jakem]

1. which part of "cruel and unusual" is the tricky bit?

edit: 'and' not 'or'

[Donald Ian Rankin]

2. Which provision of your constitution forbids it?

I'm not American, and I'm not an expert on your law.

[babylonsister]

3. 8th Amendment, Cruel and Unusual Punishment...

http://en.wikipedia.org/wiki/Eighth_Amendment_to_the_United_States_Constitution

[0rganism]

4. start with the Bill of Rights

http://en.wikipedia.org/wiki/United_States_Bill_of_Rights
5th amendment, 6th amendment, 8th amendment especially, and arguably the nearly-defunct 4th amendment all provide substantial grounds to reject torture.

Of course there's a whole other matter of the various treaties to which our country is signatory, which proscribe cruel and degrading treatment of prisoners. And there's the UCMJ. :shrug:

[fascisthunter]

5. Scalia is another Very Sick Man

[samdogmom]

6. Hmmmm....does it take first-hand experience to figure this out?

Some humans are very dense! They simply are unable to "walk a mile" in another's shoes.

I can't understand how anyone could think torture was "constitutional"!

[NoGOPZone]

7. Appartently it's also constitutional

to appoint someone who doesn't understand the Bill of Rights to the Supreme Court.

[gratuitous]

8. Yeah "cruel and unusual" could mean ANYTHING

Isn't it curious that the "original intent" devotees out of the Heritage Foundation know the exact meaning of every word in the Constitution, text, context, and subtext, but they come across the idea of "cruel and unusual" and all of a sudden they go all jellyfish on us and can't quite nail down a definition of those squishy words.

Anyone here think that the "enhanced interrogation" methods being bandied about are limited to a slap across the face? In a just world, these comments by a sitting justice would be impeachable.

[smoogatz]

10. I think I can help you out.

The definition of cruelty is entirely subjective: what might seem cruel to you or me could be perfectly just and humane in another culture, like Saudi Arabia, say. Then we've got "and." The constitution says "and," not "or." Cruel AND unusual, so the standard is that in order for a punishment to be unconstitutional it has to be BOTH cruel AND unusual, got it? So let's take waterboarding as an example: it may arguably be "cruel" by our bleeding-heart western standards, but is it "unusual?" Not if you do it enough, it's not. In fact, the more you waterboard people the more constitutional it becomes. Item 4: "punishment." The question of what constitutes punishment and what doesn't goes largely to intent: is torturing someone to extract information really the same as "punishment?" We "punish" people AFTER they've committed crimes; we "torture" them BEFORE they commit crimes. Surely even a squishy-headed liberal such as yourself can see the distinction.

I hope I don't really have to add this, but: :sarcasm:

[walldude]

9. Scalia on morals, values and humanity

"Not having any morals, values(except for money and greed) or humanity isn't unconstitutional.

[Winterblues]

11. Our constitution states "Treaties are the SUPREME LAW of the Land"

We have entered into international treaties regarding torture and if we abuse those treaties it is unconstituional. No Matter WHAT Scalia says about it..

[lumberjack_jeff]

15. Exactly. It's one step above unconstitutional - it's a crime against humanity. n/t

[TheWraith]

12. True, because Scalia's continued existence isn't unconstitutional.

Torture, on the other hand? You might want to check out the Eighth Amendment, you useless fencepost.

[Laelth]

13. He's right, but ...

treaties are laws. They carry legal force. Torture is still illegal, even if it's also Constitutional. Besides which, it might be prohibited by the 9th Amendment. The States have all powers not granted to the Federal Government. The Federal Government has only the powers granted to it by the states. Since the Constitution doesn't specifically authorize torture, perhaps the Federal Government violates the 9th Amendment when it tortures.

At least, it's an argument to be made.

-Laelth

[merh]

14. Scalia to the founding fathers

Scalia to the people of the US

[texshelters]

16. And how did he get onto the Supreme Court?

Oh yea, Democrats and Republicans voted for him!

Does everyone still think the Democrats care?

I'm not anti-politician, I just can't stand most of them.

Go Kucinich, Napolitano 2012!

Tex Shelters