This is from a piece on 60 Minutes last Sunday and it is both depressing and frightening as hell:
The mind boggles that a member of the SCOTUS can, with a straight face, argue that the use of torture by government agents would not be prohibited by the Eighth Amendment’s proscription against cruel and unusual punishment as long as it is done to someone before they are convicted of anything. Well if the 8th doesn’t cover it how about due process your Honor?
I dare you to find anyone (anyone not wearing a tin-foil hat to keep the aliens from reading his thoughts, that is) who can look at the U.S. Constitution and come to the conclusions this man has about the original intents of the Founders.
Oh sure, the Founders thought that there should not be “unreasonable searches and seizures”, that people shouldn’t be compelled to be a witness against themselves, and that there shouldn’t be excessive bail, but if the govt. wants to hook a car battery up to your genitals for a few hours that would be just fine as long as it is only to get information out of you and not as a punishment for a crime.
Yeah, right. “Originalism” my ass.
Playing Chess with Pigeons 
Troy, I think you misunderstand Scalia’s answer. He’s responding as a judge to a specific question about a specific legal term as used in a specific clause of the Constitution. As I understand the law, in legal terms he’s right: the phrase “cruel and unusual punishment” in the 8th Amendment does refer only to the sentence handed down after a conviction. (Whether or not that’s how it should be read is another question entirely.) Abuse of a prisoner, whether before or after conviction, is dealt with by other laws. He says so himself. We have laws against torture, and we have laws against abuse of prisoners by police and prison guards. Those laws aren’t written very well or enforced very strongly, but that’s the fault of the people who write and enforce the laws, not the judges.
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What Jon W. said. Scalia could have expressed himself more clearly, but the point is that, from a legal standpoint, the proscription against “cruel and unusual punishment” only applies to punishments that follow a conviction.
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What Jon W. said. Scalia could have expressed himself more clearly, but the point is that, from a legal standpoint, the proscription against “cruel and unusual punishment” only applies to punishments that follow a conviction.
That is correct.
Troy is also correct in bring up due process of law: you know the requirement for any denial of life, liberty, or property. That clearly covers doing things to people.
I might also point out that in the Federalist Papers the authors argued against adding a Bill of Rights precisely because people like Scalia would come about. Such people would say, to make up an example, that just because the right not to have one’s fingernails removed was not explicately mentioned in the Constitution, the government would have the right to do it. The Federalist Papers argued that the Constitution was the people giving the government the rights and not the other way around. People still wanted a Bill of Rights though. But to guard against interpretations like Scalia’s, the Ninth Amendment specifically says that just because we don’t explicately specify you have a right does not mean you don’t have one. Clearly this does introduce some vague judgment calls into the Constitution (like a lot of other provisions), but it also very clear that the Founders did not want narrow-minded interpretations of the guaranteed rights.
Here is the actual text: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Mine might also point out that multiple laws and treaties of the United States also apply and they clearly outlaw torture. Is it original intent that these be ignored?
/Sorry Justice Scalia. If those thugs stop not punishing me, I promise to be good.
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Look guys, I know that a brain dead literal reading of the Eighth Amendment would mean that it only applies to punishment but that would be, obviously, brain dead. You know, the same kind of stupidity that gives us the claims that is no separation of church and state, or right to privacy.
Remember Scalia is supposedly an “originallist”, so he should be looking for the original intent of the Framers not just looking to read the Constitution in a BD literal manner.
To read the Eighth in the BD literal manner and take that reading as the original intent of the Framers would mean that they were only concerned with cruel and unusual treatment of people convicted of crimes, and thought that it would be just peachy to torture those merely suspected of crime or who just might have useful information that the govt. wants. Do any of you believe that to be the intent of the Framers?
I doubt it.
I would say the Constitution rules out imprisoning and torturing people (as practiced by the Bush Admin.) on multiple levels. First there is the matter of habeas corpus, search and seizure issues, due process, cruel and unusual treatment, (likely) self incrimination issues, and if nothing else 9th Amendment would cover the unenumerated right to simply not be held against your will and physically assaulted (tortured) .
And of course the 14th wraps it all up for any people being held under the jurisdiction of the U.S. (IOW even in Gitmo).
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This would lead us to the scenario that the Framers thought it was very important to protect people already convicted of crimes from being treated in a cruel and unusual manner (to the point of specifically enumerating that protection in the BoR) but they figured they would leave the protection of those not so convicted from such treatment to mere legislation.
Huh?
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Troy,
To read the Eighth in the BD literal manner and take that reading as the original intent of the Framers would mean that they were only concerned with cruel and unusual treatment of people convicted of crimes, and thought that it would be just peachy to torture those merely suspected of crime or who just might have useful information that the govt. wants. Do any of you believe that to be the intent of the Framers?
No, I don’t. I think if the issue had occurred to them, they’d have found a way to write it into the Constitution. In fact it’s arguable that they did, through the Fifth Amendment’s Due Process clause. But a judge’s job is to apply the law as written, not as he or you or I would’ve liked to see it written. As written, the Eighth Amendment applies only to punishment after sentencing.
We also need to keep in mind that the Constitution is a product of eighteenth-century thought processes. To the Founders, ‘cruel and unusual punishment’ meant something like the Mohammedan habit of cutting off a thief’s hand, or the still-extant British law that theft of a loaf of bread could be punished by hanging. The idea that noninvasive, primarily psychological methods of interrogation that induce a military prisoner (who by definition is not subject to the normal civilian court process) to yield useful information without doing any lasting physical harm are “punishment” within the meaning of the Eighth Amendment would probably make them snort in disgust. (The idea that such methods are ‘torture’ would probably also make them snort in disgust, but I digress…)
I also agree with A Lurker’s point about the Ninth Amendment, which rivals the Second for most under-used and under-enforced amendment in the entire document. It could be interpreted to protect against torture. It never has been, TTBOMK, but that doesn’t mean it couldn’t be.
I guess my point is that constitutional law is a strange and complex thing, and it doesn’t always work out the way a modern rational person thinks it should. The most glaring case is the Incorporation Doctrine, but there are many others. The wording of the Eighth Amendment is one of them.
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but if the govt. wants to hook a car battery up to your genitals for a few hours that would be just fine as long as it is only to get information out of you and not as a punishment for a crime.
Of course the Founding Fathers would not have been familiar with car batteries, so it would have to be a Franklin lighting rod.
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Webster’s Dictionary
punishment |ˈpəni sh mənt|
noun
the infliction or imposition of a penalty as retribution for an offense : crime demands just punishment.
• the penalty inflicted : she assisted her husband to escape punishment for the crime | he
approved of stiff punishments for criminals.
>>>• informal rough treatment or handling inflicted on or suffered by a person or thing : your machine can take a fair amount of punishment before falling to pieces.<<<
ORIGIN late Middle English : from Old French punissement, from the verb punir (see punish ).
The Webster was written sometime after -yes-but surely even at the time of the framing of the US Constitution, the secondary meaning of the word “punishment” was in
use?
Isn’t the exploration of “intent” -so much a part of any discussion of the Constitution-going to
illuminate this use?
Patrick Henry, one of the framers, remarked at the time that if we do not leave behind us the practices of the Star Chamber, the rack, and the thumb screw then “we are lost and undone.”
And it is always good to recall the wise words of Abraham Lincoln-
“We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.”
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