The Scalia! It Burns!

by hilzoy

I had missed this delightful bit of Constitutional interpretation from Antonin Scalia until Jim Henley pointed it out:

""I don't like torture," Scalia says. "Although defining it is going to be a nice trick. But who's in favor of it? Nobody. And we have a law against torture. But if the - everything that is hateful and odious is not covered by some provision of the Constitution," he says.

"If someone's in custody, as in Abu Ghraib, and they are brutalized by a law enforcement person, if you listen to the expression 'cruel and unusual punishment,' doesn't that apply?" Stahl asks.

"No, No," Scalia replies.

"Cruel and unusual punishment?" Stahl asks.

"To the contrary," Scalia says. "Has anybody ever referred to torture as punishment? I don't think so."

"Well, I think if you are in custody, and you have a policeman who's taken you into custody…," Stahl says.

"And you say he's punishing you?" Scalia asks.

"Sure," Stahl replies.

"What's he punishing you for? You punish somebody…," Scalia says.

"Well because he assumes you, one, either committed a crime…or that you know something that he wants to know," Stahl says.

"It's the latter. And when he's hurting you in order to get information from you…you don’t say he's punishing you. What’s he punishing you for? He's trying to extract…," Scalia says.

"Because he thinks you are a terrorist and he's going to beat the you-know-what out of you…," Stahl replies.

"Anyway, that’s my view," Scalia says. "And it happens to be correct." "

You might have imagined that the Eighth Amendment prohibited the federal government from, say, deciding to pull your toenails out one by one before you're actually convicted of a crime, not just afterwards, but apparently Antonin Scalia disagrees. Likewise, I suppose the Fifth Amendment doesn't prohibit self-incrimination, as I had always supposed; it says that a person cannot "be compelled in any criminal case to be a witness against himself", but before his trial, when he's not a witness but a suspect, perhaps anything goes. Reading over the Bill of Rights, I also note that while the Fifth Amendment says that a person cannot "be deprived of life, liberty, or property, without due process of law", it does not say that if you have had a trial, or some other form of due process, and that trial ends in your acquittal of all charges, you can't be deprived of life, liberty, or property anyways. After all, you did have due process, and that's all the Constitution really requires, right? It says nothing about your having to be convicted of a crime.

Constitutional interpretation is so much fun if, as John Stuart Mill said in another context, "we suppose universal idiocy to be conjoined with it."

(Note: this is the same Scalia interview in which he said, about Bush v. Gore: "Get over it." To which I can only reply: No. Not in this lifetime. And no one has less right to ask me to than Antonin Scalia.)

[UPDATE: I gather, from comments, that Scalia's view that nothing done before conviction counts as "punishment", as that term is used in the Eighth Amendment, is true. If so, I regret having assumed the opposite. It still strikes me as bizarre that things that we cannot do to convicted criminals can, apparently, be done to unconvicted detainees; that we cannot deprive them of life or liberty without due process of law, but can, apparently, pull their toenails out or shoot electricity through their genitalia. I don't see how the Fifth Amendment gets around this, especially if you're being tortured for information not about your own crimes but about someone else's. No doubt I'm just missing something, though.]

Comments

[Anarch]

You really need to see the video to appreciate what a loathsome toad Scalia is.

[Warren Terra]

At first I disagreed with his "if we torture them before the conviction that makes it OK" proposition, but then I read the rest of it and I realized that his view happens to be correct. After all, he says it is. And I'm sure that if I'm at all left in doubt, I can always get a second opinion by asking him again.

Geez, it's like he read the old bitter joke about how some of the ways we treat our convicts may be cruel, but they aren't particularly unusual, and as long as they're not both cruel and unusual they must be Constititional - and didn't realize it was a joke.

[byrningman]

"It's the latter. And when he's hurting you in order to get information from you…you don’t say he's punishing you. What’s he punishing you for? He's trying to extract…," Scalia says.

Well, I don't pretend to know anything about the law, but isn't this obviously wrong because a torturer is punishing you for not telling him what he wants to know? The whole point is that all the pain will stop when you behave and cooperate. You are punished for not cooperating. My god why am I even arguing this, what a creep.

[byrningman]

Love the title of the post, btw.

[Nathan]

This is the vilest thing I have ever seen a judge say.

[Bruce Baugh]

Stick around, Nathan, Scalia's got a million of 'em. There appears to be nothing he won't say or do in defense of the privileges of his patrons.

[novakant]

He's smart, though. Note how he ignores "cruel and unusual", which is the important part here, and immediately starts discussing "punishment", which is much easier to dismiss. Had the interviewer simply inisted on asking if such treatment is "cruel and unusual", Scalia would have had a much harder time.

[Hartmut]

Oh, a German politician once said "What was lawful then can't be unlawful today" when he was asked about his debatable conduct as a judge in the 3rd Reich.
And don't forget the wisdom of Al Gonzo about habeas corpus: The constitution only says that it can't be taken away, not that it exists in the first place.
Scalia is only the tip of the sh|tberg.
Btw, by the strict letter Scalia may be correct (torture in interrogation does not qualify strictly as "punishment"*) but it clearly violates both intent and spirit of the law.

*Historically torture was sometimes a mandatory part of interrogation/testimony. In ancient Rome for example the testimony of a slave was invalid, if the slave was not tortured (source: Franz Helbing, Die Tortur, 1910)

[Warren Terra]

Historically torture was sometimes a mandatory part of interrogation/testimony. In ancient Rome for example the testimony of a slave was invalid, if the slave was not tortured (source: Franz Helbing, Die Tortur, 1910)

I was reminded of this as well, but didn't remember the precise era and underclass involved, let alone have a source I could readily cite.

[Elvis Elvisberg]

I'll get over Bush v. Gore when he gets over Vatican II.

He's done this sort of thing before. This is not a good man.

[Hartmut]

Unfortunately the bulk of that article is behind the pay-wall.

Tom the Dancing Bug has a take on A.S.
http://www.salon.com/comics/boll/2008/05/01/boll/story.gif>Scalia on 24

[Doctor Science]

I just have to say, this is my favorite headline so far this week.

[rea]

What boggles my mind is not that Scalia thinks that the 8th Amendment doesn't ban pretrial torture--it's actually fairly conventional to conclude that the 8th Amendment doesn't appply to pretrial matters.

What boggles my mind is that Scalia didn't immediatley say, "But of course, under the 15th and 14th Amendments, torture of a pretrial detainee is prohibited, because neither a state nor the federal government can deprive any person of life liberty and property without due process of law."

[Ugh]

AFAICT, Scalia loves to trot out "the constitution does not prohibit all terrible things" line just to annoy people, and also enjoys being an annoying pedant, which is what he's doing in the quoted portion of his interview, IMHO (example: the senate does not, in fact, ratify treaties).

Whether the either is something he should be doing is a different question.

Oh, and fnck him on Bush V. Gore, it was indefensible by his own judicial philosphy, which he claims to hold so dear.

[Don]

Believe me, I'm not one to defend Scalia, who on my view is openly hostile to individual rights and democracy.

But, I do think that abusive pre-conviction interrogations are not covered by the 8th Amendment. Rather, an excessive force claim under the 4th Amendment would be the correct source of constitutional protection.

You'd think, though, that a Supreme Court Justice would be the first one to point that out, rather than acting like there is no protection at all against this sort of state misconduct.

[Don]

And I am compelled to agree with Anarch --

Scalia IS very toad-like.

[John Thullen]

Not only that, but he is fully eclipsed by his toad-like penumbra.

The word "toad" is not in the Constitution, and yet there he is.

[farmgirl]

Thullen wins.

[ugh]

No fair, Thullen always wins.

*pouts*

[ajay]

"But of course, under the 15th and 14th Amendments, torture of a pretrial detainee is prohibited, because neither a state nor the federal government can deprive any person of life liberty and property without due process of law."

Doesn't apply. It's already OK to deprive a person of liberty before trial, by keeping them in prison until their trial comes up. And in any case torture isn't depriving them of life, liberty or property, is it?

I think the Constitution may be the wrong place to look. Isn't it enough to say "torturing someone is assault, and should be tried as such"?

[Porcupine_Pal]

Scalia has become a scold. He understands why people ridicule him. That makes the experience of this difficult for him. But it won't make him change. He's the Supreme Court's Christopher Hitchens (who, in turn, is punditry's answer to Monty Wooley - Sheridan Whiteside in The Man Who Came To Dinner)

[Bill Detty]

While this interview was being broadcast, my partner and I were shocked that Ms. Stahl didn't ask what we thought was a natural follow-up question: did he think an attempt to legalize torture might be constitutionally challenged on some other ground?

Scalia obviously wasn't going to volunteer any such opinion on his own--and it crosses my mind that it might, arguably, be a breach of his duties to do so--but why wouldn't it have been worth asking?

[mainsailset]

Perhaps Scalia has never encountered a 'punishing' wind, thunderstorm, sea or drought. His construction is sorely lacking if he thinks torturous acts are not punishing.

[J]

Another lowlight of this interview is where Nino falsely claimed that Gore dragged the election into the courts. Which is false. Gore had the right to a recount, and that didn't involve any court filings, and Bush filed the first lawsuit, to stop the counting of votes. It's not ambiguous at all. Bush took it to the courts.

Not only that, but Bush lost at every level, until his 5 pals bailed him out. The case is Bush v. Gore, and in the Supreme Court the party name appearing first is always the party who lost below.

[Gregory]

this is the same Scalia interview in which he said, about Bush v. Gore: "Get over it." To which I can only reply: No. Not in this lifetime. And no one has less right to ask me to than Antonin Scalia.

Word.

[wonkie]

Yeah but who cares? According to Stahl Scalis is so charming and so smart! She could possibly ask any real questions ro challenge him in any way.

[Tony P.]

Some of you guys are addressing the wrong question, just like Scalia.

Persons have RIGHTS; government has POWERS.

Our constitution enumerates the powers we persons have assigned to our government. It explicitly does NOT enumerate (as in, exhaustively list) the rights of persons.

Thus, to persons everything not explicitly forbidden is permitted. To government, everything not explicitly permitted is forbidden.

So the burden of proof is on the Scalias of this sad world to show where the hell government gets the legal POWER to torture persons for information.

It would not surprise me if Scalia's answer went something like this: the government agent inflicting the torture is himself a person, so ...

As for Bush v. Gore, let us place the blame where it belongs. At the margin, it was Sandra Day O'Connor, not Fat Tony Scalia, who foisted upon this nation the horrors of the last eight years.

-- TP

[adam]

Hilzoy,

Believe it or not, under current Supreme Court precedent, Scalia is technically right. The protections of the 8th Amendment apply only to the treatment of individuals who have been convicted of a crime. Ingraham v. Wright, (1977). But, torture at any time and under any condition obviously violates the Convention Against Torture (which the US has ratified) and other domestic statutes.

[Francis]

this is an unusual day -- I'm agreeing w/ Scalia and disagreeing with hilzoy.

I did some work in this area as a law student when I was trying to get a Mariel Cuban released from "detention" pending a deportation that was never going to occur.

The 4th, 5th and 6th Amendments limit the fed govt's powers of "detention"; the 8th A limits the govt's powers of "punishment".

By long-standing Sup Ct precedent, "punishment" applies by definition to what the govt can do to you after a criminal trial. "Detention" covers essentially all pre-trial and non-criminal restraints on freedom.

A classic Sup Ct case (Yick Wo) holds that the govt may not punish a detainee.

So, in the case I argued (and lost) to the Ninth Circuit, the question presented was whether a detention pending deportation became unlawful punishment when (a) the detainee was locked up in a federal prison with other prisoners and (b) the detention was never going to happen. (Cuba does not take back Marielitos.) The govt won on the legal fiction that my client was on the border, not in the US. (A very weird aspect of immigration law.)

Applying the same analysis to what Scalia said, we see he's nominally correct. If there were a statute authorizing torture of detainees, the constitutional challenge to that statute would be based on a 5th Amendment violation of the detainee's liberty interest.

If torture is illegal but the government is doing it anyway, then we have a violation of civil rights case. (Bivens action? It's been so long long.) But the theory underlying civil rights cases is the 5th Amendment right to be free from violations of liberty without due process. (And having water poured into you is definitely a violation of one's liberty.)

hilzoy: it's never too late to go to law school. or, for grins, to read a Con Law textbook or two.

[Francis]

PS: If torture were a defined aspect of a convict's punishment, the convict could challenge the govt's authority to do so under the 8th A.

But if there is no law, and guards are torturing inmates just for grins, at least one justice (Thomas) believes that no 8th A protection attaches.

[Q the Enchanter]

Adding to Francis' and Rea's point, as I understand matters, the inquiry of whether conditions of pretrial confinement are in violation of due process is considered analogous to the inquiry into whether conditions of confinement post conviction are cruel and unusual under A8.

So I'm not sure I understand why the Court contrived this analytical distinction, since if the inquiries are analogous, not much seems to turn on it. (Though I suspect there may be...enhanced procedural barriers to habeas petitioners in the pretrial context.) Hopefully an expert in this area will pipe in...

[Don]

Francis:

I agree with you that the 8th Amendment is not applicable to pre-conviction interrogations.

The issue I have with Scalia's treatment of this topic is not inaccuracy, but rather omission. His comments would lead a layperson to believe that torture is not only not prohibited by the 8th Amendment, but not prohibited by ANY provision of the Constitution. There are obvious 4th and 5th Amendment objections to torture as an interrogation technique, and Scalia would have pointed this out to the interviewer, if it was really his intent to educate and inform the public.

BTW, Bivens for federal agents, § 1983 for state actors and political subdivisions... I just took Fed Courts spring semester.

:)

[hairshirthedonist]

Aside from the things already mentioned here, what annoyed me about the interview was Scalia’s response to Stahl’s question about the possibility of bias on his part in favor of conservative policy. I guess Originalism just happens to lead one to decide over and over again in favor of conservative policy. Otherwise, as Scalia said, he would have decided long ago to do X, Y and Z (I can’t remember the examples he gave – maybe overturning Roe or something.)

After all, a bias can’t just sway you in a given direction. It must take you all the way to your ultimate desires, or it doesn’t exist at all. (And the Cleveland Browns have no desire to score touchdowns, given the number of times they run plays designed simply to get past the first-down marker.)

Even if the guy is brilliant, he allows himself to engage in all sorts of twittery that a random jerk like me can see through.

[bc]

Another lowlight of this interview is where Nino falsely claimed that Gore dragged the election into the courts. Which is false. Gore had the right to a recount, and that didn't involve any court filings, and Bush filed the first lawsuit, to stop the counting of votes.

I'm pretty sure this is wrong. My recollection of history: Bush won, less than 1/2 of 1% difference, so automatic recount, Bush wins again (but less), Gore asks for manual recounts in certain counties, Harris says statutory deadline is firm and won't extend, GORE goes to court, Fla. S Ct. says to extend deadline for certification until later date, JEB BUSH and Harris appeal to SCOTUS, SCOTUS issues 9-0 opinion in favor of Bush (Jeb) and remand. Then we have the debacle of Bush v. Gore.

Scalia's point is, I think, that Gore filed the initial lawsuit. It is a completely valid and defensible point to argue that Gore could have deferred to Florida election statutes and the discretion of the Sec. State at the time and let it end there. Most here won't agree, but we never would have had Bush v. Gore. So it is (I think) completely fair to say Gore drug this into court.

My god why am I even arguing this, what a creep.

Oh, and fnck him on Bush V. Gore

not Fat Tony Scalia

Scalia IS very toad-like.

What is interesting here is seeing the reaction from most commenters to Scalia. In spite of him being correct on the law, most can't help express their vehement personal feelings. I have to say that despite my differences with the justices on the "left," it never occurs to me to respond to them on such a personal level. I attribute most of their wrong-thinking to being legal nerds that never saw the light of day in their ivory towers. The comments here, if made by someone on the right about Ginsburg, for example, would get you the automatic troll designation.

I see in comments like these the "law professor" side of Scalia where he simply enjoys challenging one's thinking. It's an attempt to get focused on the actual text of the Constitution instead of one's personal beliefs. I don't think for a minute Scalia personally condones torture to extract information, but that is what everyone here automatically believes (although i didn't hear the whole interview, did he actually say that?)

BTW, how do you explain his friendship with Ginsburg?

John Thullen's comments excepted, of course. The pure artistry of his response is something even Nino would love! I am wondering if his toad penumbra is incorporated through the 14th amendment to certain state court trial judges I have a beef with . . .

[Francis]

Don: agreed. hence my use of the word "nominally". He's being accurate in a way deliberately designed to convey false information.

and thanks for the refresher.

[cleek]

What is interesting here is seeing the reaction from most commenters to Scalia. In spite of him being correct on the law, most can't help express their vehement personal feelings.

some of that is probably because Scalia is being haughty and dismissive about something that most people here feel very strongly against: torture. in quite the same way he was dismissive about Bush v Gore, in fact.

[Bernard Yomtov]

Even if the guy is brilliant, he allows himself to engage in all sorts of twittery that a random jerk like me can see through.

I'm puzzled by the routine attribution of brilliance to Scalia. On what exactly is it based? He is no doubt sharp-tongued, and maybe a good writer, but brilliant?

[Ugh]

bc - If Scalia is going to act like a dick, don't expect us to suck on it.

[hairshirthedonist]

I'm puzzled by the routine attribution of brilliance to Scalia. On what exactly is it based? He is no doubt sharp-tongued, and maybe a good writer, but brilliant?

I almost put "(is he?)" after the word "brilliant" in my post. The only reason I decided not to was the discussion of his extraordiary academic achievment early in his life. Something to the effect of "never go anything less than an A." I decided "Even if" was good enough. I know you weren't just reacting to me, BY, but that's where my head was.

[bc]

If Scalia . . .

Ugh.

[Anarch]

In spite of him being correct on the law, most can't help express their vehement personal feelings.

The man is not just an apologist for, he's practically an endorser of torture -- and that's leaving aside his other morally questionable stances. Based on this, why the hell shouldn't we have vehement personal feelings? If there were a filmed interview with Tanney justifying Dred Scott while looking one tenth as smug as Scalia, would you get irked with people who called him bad names?

[Anarch]

Let me also add, incidentally, that while it might not occur to you to respond on such a personal level, bc, you're... well, let's just say, rather unique in this regard. As a quick trawl through the blogosphere will confirm.

And one other thing:

I see in comments like these the "law professor" side of Scalia where he simply enjoys challenging one's thinking. It's an attempt to get focused on the actual text of the Constitution instead of one's personal beliefs. I don't think for a minute Scalia personally condones torture to extract information...

Really? Because my read is that if he doesn't, it's close enough as to make no difference.

And this, more than anything, is what bothers me; makes me feel that Scalia is, frankly, not just a bad judge but a bad person. You cannot treat these matters as if they were arbitrary mental exercises, gedankenexperiments to show off your smarts in front of a bunch of 1Ls. People are being tortured. People are dying. This isn't abstract nonsense, and I'll tell you, I've never once gotten the impression from Scalia that he realizes -- or cares -- that this is the case. No, it's just the fun game he plays when he's not off duck-hunting with Cheney, or coming up with clever justifications for turning a blind eye to torture.

[Bernard Yomtov]

I know you weren't just reacting to me, BY, but that's where my head was.

Correct. I wasn't reacting just to you. I was reacting to what seems to be a widely accepted view that I see no evidence for.

There are lots of straight A students. They may even be entitled to be called brilliant for a while. But don't they lose that if they do little or nothing brilliant by the time they are 72 years old. I'm not saying he's not a smart guy, but I reserve "brilliant" for more than that.

[Morat]

BC: You're incorrect -- I went and looked it up, just to be sure.

First lawsuit at all was filed -- in federal court, I might add -- on November 11th, by George Bush, to stop hand recounts in multiple Florida counties.

Katherine Harris made her decision to refuse to extend deadlines on November 13th, and was promptly sued by Volusia County -- which even if you grant that was Gore's doing, is still a full two days after George Bush filed the first lawsuit.

So no, Gore didn't start it. George Bush filed the first lawsuit.

[Fledermaus]

Keep in mind that this is the same moron who wants to do away with the exclusionary rule because those "citizen review panels" are just so gosh darn effective at keeping an the cops in line. *snort*

[bc]

Anarch:

In reading his recent comments, I see where you're coming from. He has said that the 8th Amendment didn't ban slapping someone in the face to find out where the bomb is. In general, he does not think torture is per se banned. But he goes on to say:

"It would be absurd to say that you … couldn't do that," Scalia said. "Once you acknowledge that, we're into a different game. How close does the threat have to be? How severe can the infliction of pain be? I don't think these are easy questions at all, in either direction. "But I certainly know you can't come in smugly and with great self-satisfaction and say, 'Oh, it's torture, and therefore it's no good.' You would not apply that in some real-life situations."

Doesn't sound like a complete endorsement of torture. And these comments came in response to a question about the 8th amendment. He also goes on to say it's a hard question either way.

Not something to deserve the response here on this issue alone, IMHO.

[Anarch]

Fair point, bc, but I don't think what you're seeing is in response to this issue alone; it's more of a flashpoint, an issue that encapsulates what we (or at least I) dislike (or loathe) about Scalia.

Doesn't sound like a complete endorsement of torture. And these comments came in response to a question about the 8th amendment. He also goes on to say it's a hard question either way.

It could be me, but I simply don't give credence to statements like that unless there's something backing them up. "It's a hard question either way" is routine lip-service, the kind of filip the banalities of evil toss off to make themselves feel less odious.* I've seen nothing to indicate that Scalia is willing to draw a line anywhere that I would consider civilized -- note that I do mean "civilized" not just "somewhere that I personally endorse" -- on this, nor am I convinced by his intellectual integrity in general. Given that, well, the rest follows.

* After all, we can hardly be held accountable for monstrosities if we graciously acknowledge that they were difficult decisions.

[Gary Farber]

Hey, everyone, before I disconnect my computer, here's John Thullen to say "hi" -- say something Thullenesque, John:

I hate being prompted ... no .. no, I said, .. oh alright.

Geez!

Hello everyone. How are you? I'm fine.

Gary Farber is making me carry boxes down 12 flights of stairs.
Then he decides he needs to repack them, and I schlepp them back up. Then back down.

Don't tell him but I threw several over the railing into the parking lot.

Bye now.

----------------------------
That Thullen guy sure is colorful, for a one legged dwarf.

KTHXBAI!

[Frank]

I think people have been missing something here.

How clearly Scalia glories in being hated.

I think that explains a lot about him.

[Hartmut]

Oderint dum metuant, as the old horse-promoter used to say.

[J]

Thanks morat -- bc, you are definitely wrong about the timeline. I knew, and had checked previously. I was too lazy to give the url though, but I tracked it down since you disputed this:
http://www.post-gazette.com/election/20001217pztimeline.asp

[Nate]

So, Scalia invokes the "ticking time bomb!" crap to cover his endorsement of torture.

And then tries to weasel around and say that torture before someone's convicted isn't prohibited by the 8th amendment. Okay, fine, it's not punishment, because they're not a criminal.

So why isn't it assault, or attempted murder then?

[Z]

I guess Scalia has conveniently forgotten that if you are going to be a m***f***ing originalist, you have to hew as close as possible to the founders original intent. From the Declaration of Independence:

'We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.'

Torture for information is completely at odds with this! How does that a**hole sleep at night?

[bc]

J and Morat:

Looks like you're right. Only way to say Gore "threw this in court" would be to say Gore started the individual case leading to Bush v. Gore, but not the first lawsuit.

As for the rest of the comments: good grief.

[Turbulence]

He also goes on to say it's a hard question either way.

That makes a lot of sense, I mean, Scalia is just a brick layer from Patterson NJ with an eighth grade education. Wait, you mean he's a Supreme Court Justice? Well, frak me. Isn't it his job to think about and answer hard questions? And doesn't that require more than whining about how hard the questions are?

Also, Scalia certainly seems to endorse torture in his BBC interview as recounted here. That's probably a fine position; I'm sure the government would only use torture in ticking time bomb scenarios. It would probably never become an institutionalized cancer that reduced the amount of useful intelligence we got while impeding terrorist prosecutions.

[Don]

"What is interesting here is seeing the reaction from most commenters to Scalia. In spite of him being correct on the law, most can't help express their vehement personal feelings. I have to say that despite my differences with the justices on the "left," it never occurs to me to respond to them on such a personal level."

Come on, B.C., please spare us the pearl clutching.

First, this is a blog, not a courtroom. What is appropriate language in one forum might not be appropriate in another. Believe me, if I ever have the opportunity to argue before the Supreme Court, any references to Scalia will either be "Your Honor," or "Justice Scalia." This ain't a courtroom, however, and I see nothing wrong with turning up the heat a bit. Besides, do you have any idea how Justice Scalia speaks about his political and academic adversaries in private amongst friends?

Second, Scalia's a big boy and he can take it (not that he's listening to this particular conversation).

Finally, the man can also dish it out when he wants to. Scalia spoke at the University of Toledo Law School last year. I asked him a perfectly sensible question (yes, I asked very nicely), and he went off on a lengthy response that both dodged my question and included referring to my question as "crazy." The encounter is partially memorialized here.

Thus, in my own personal experience, Antonin Scalia will not hesitate take full advantage of his untouchable status as a Supreme Court Justice to berate a law school student. I fail to see how any comment on this thread amounts to worse behavior than that. So, again, give us a break with the hand-wringing, OK?

[bc]

So, again, give us a break with the hand-wringing, OK?

Point taken, Don, but I wasn't hurt at all by the pot shots taken at Scalia. Don't get me wrong. I just think it's a bit hypocritical. Next time someone calls a liberal similar names I'm sure we'll hear about posting rules, trolls, etc.

[cleek]

Next time someone calls a liberal similar names I'm sure we'll hear about posting rules, trolls, etc.

if the hypothetical liberal is glib about torture, then yeah, probably.

[Anarch]

As for the rest of the comments: good grief.

Well then.

[CharleyCarp]

You know, no one is forced to file a peititon for cert to the US Supreme Court when they lose in state court. No one is forced to move for a preliminary injunction to stop state officers from complying with state law as decreed by the highest court in their state. Faux exoneration of Bush for the litigated result is lame beyond belief.

So is the notion, in Scalia's opinion on the stay, that you can go equity but fail completely to balance harms.

The most salient constitutional issue wrt torture is the Executive's open defiance of the law, and claim that it need not follow the law. Scalia will earn my respect when he shows the smallest willingness to hold the government to account. He won't: he's every bit as small a man and the man he helped put in the White House.

[Tony P.]

CharleyCarp, I will give you twelve to seven that Scalia will earn your respect by showing "the smallest willingness to hold the government to account" soon after 20 January 2009.

-- TP

[david kilmer]

"I guess Originalism just happens to lead one to decide over and over again in favor of conservative policy."

Originalism is the judicial equivalent of starving the beast.

[magistra]

I guess Originalism just happens to lead one to decide over and over again in favor of conservative policy.

No, Originalism leads you to decide in favour of the policies that late eighteenth-century prosperous white men would approve of. Who just happen to be rather more conservative than most people nowadays.

[Hartmut]

Well, iirc Scalia had conflicts with the Chain-Eye/Shrub administration occasionally. Not for the right reasons imo but because WH actions collided with his believe in state rights etc. (i.e. the problem were not the actions but the actors).
My personal views on maestro Scalia would be in violation of the posting rules, so I will abstain from detailing them.

[Brett Bellmore]

"No, Originalism leads you to decide in favour of the policies that late eighteenth-century prosperous white men would approve of. Who just happen to be rather more conservative than most people nowadays."

It just so happens the Constitution was written by eighteenth century prosperous white men. As a consequence of this, any honest reading of the Constitution is going to come up with meanings eighteenth century prosperous white men would have wanted. You want the Constitution to ACTUALLY not mean eighteenth century prosperous white man things, then amend it.

[russell]

"I don't like torture," Scalia says. "Although defining it is going to be a nice trick."

Look ma, no hands:

US Code, Title 18, Part I, Chapter 113C, section 2340.

And I'm not even on the Supreme Court. Imagine that!

Scalia is not a law professor, engaging his clever students in a Socratic battle of wits. He's a justice of the Supreme Court of the United States of America.

It's factually true, and in some contexts might be curiously interesting in a law nerd kind of way, that the 8th Amendment doesn't prohibit torture if it is not used as punishment, according to that term's legal meaning.

Coming from Antonin Scalia specifically, at this particular time in the nation's history, that argument is morally bankrupt sophism.

Torture is against the law.
It's morally repugnant.
Nevertheless, it's become something we do, as a matter of policy.

But Stahl's question referenced language in the 8th Amendment, so that and strictly that is what the honorable justice will discuss.

In spite of him being correct on the law, most can't help express their vehement personal feelings.

Here are mine:

The law has become a whore, and Scalia is one of its foremost pimps.

He's not alone, there are plenty of others, including Yoo, Addison, Bybee, and Gonzales. Soon to be joined by Mukasey, apparently.

But he's right up there with them.

These guys are pimps, whoring the law out for the benefit of their buddies.

That's my vehement personal feeling on the matter.

Thanks -

[Anarch]

As a consequence of this, any honest reading of the Constitution is going to come up with meanings eighteenth century prosperous white men would have wanted.

Except in the vaguest of ways, that's false on its face. What if -- as was frequently the case -- the eighteenth century prosperous white men wanted terms in the Constitution to be interpreted according to the mores of their descendants, who happened to be none of those?

[Brett Bellmore]

What if they wanted it to be amended when it had to change? I'd say the existence of Article V is evidence for that proposition.

Anyway, some of the 'living constitution' changes are way beyond what anyone could reasonably call 'interpretation', such as the way the power to regulate interstate commerce has been morphed into a general regulatory power which reaches intrastate and non-commerce activities.

[CharleyCarp]

Brett, you mean like late term abortion? Medical marijuana?

[CharleyCarp]

Justice White's dissenting http://www.law.cornell.edu/supct/html/historics/USSC_CR_0430_0651_ZD.html>opinion in Ingraham v. Wright is worth reading.

[Brett Bellmore]

I think it's hard to come up with a plausible interpretation of the constitutional text which gives Congress even the slightest authority over whether or how abortions are performed. I say that despite the fact that I think Roe was a total crock when it comes to constitutional reasoning. (Good policy, but bad law.)

The war on drugs stands unique as a ongoing constitutional catastrophe. Why, just a week or so ago, the Supreme court killed off the "fruit of the poisonous tree" doctrine, because it got in the way of a drug bust. There's not going to be much of the Constitution left when the drug warriors are done.

[Anarch]

What if they wanted it to be amended when it had to change? I'd say the existence of Article V is evidence for that proposition.

For certain changes, of course; the various electoral amendments make perfectly good sense, as would any structural change in the government. What, though, of "freedom of speech", or "freedom of the press"? Should we amend the constitution every time a new technology emerges that allows the dissemination of information in a new way, or should we simply recognize that that's what those amendments really mean -- the right to disseminate one's opinions, IOW -- and that a separate amendment for broadsheet, the post office, radio, television, the internet, etc., is unnecessary?

And that's leaving aside things like "cruel and unusual" which are clearly intended to be interpreted by successive generations according to the mores of their times. We can disagree on what constitutes "cruel and unusual", of course, but I think it's laughable that the proscribed punishments must necessarily be exactly those that 18th century jurists regarded as proscribed. Had they wanted to forbid exactly torture via the rack, they could -- and would -- have said so. That they did not, and that they used a phrase that necessarily requires subjective interpretation in order to implement, shows that (parts of) Constitution were designed to be flexible.

This is the major problem with so-called "originalism" or "textualism". The text is deliberately vague in certain respects, and this is by design. Any interpretative rubric that doesn't acknowledge this, no matter how supposedly "honest", is flawed from start.

[Brett Bellmore]

Yeah, some aspects of the Constitution are deliberately vague. I think declaring the death penalty, no matter how administered to be 'cruel and unusual' at a time when it's both widely applied and supported goes beyond the range of that ambiguity, but it's certainly there.

The major problem with living constitutionalism, on the other hand, is that the text isn't vague, deliberately or otherwise, on any number of issues where living constitutionalists don't like what the text says. Like, can Congress regulate local non-commerce in the name of the commerce clause? Is political speech protected during campaigns?

It's not that there's no ambiguity, it's that living constitutionalists, understandably, vastly exagerate it's extent.

[Lisa]

Torture to extract information can also be interpreted as punishment for not giving the information desired.

[Hartmut]

Lisa, while this is a possible interpretation in theory, it has no historical tradition in law. As I said above, at certain times torture was even mandatory (i.e. testimony without torture was invalid). Torture as punishment post trial has another tradition that the constitution explicitly abandons. Legal scholars have put quite some effort into denying the "punishment theory" and defining torture as the "touchstone of truth". Under that theory a suspect could clear him/herself by withstanding torture over a fixed amount of time. It took the witch craze to pervert that to damned if you do, damed if you don't (confess and you die, don't confess and your ability to resist will be hold against you as proof of satanic interference => you die; dying under torture also qualifies as guilt) but even at this perverted state the perpetrators insisted that they adhered to the old rule of torture = truthfinding =/= punishment (they had to torure logic a wee bit for that, a tradition kept up by the Yoos and Baybee of today).

[West]

"Like, can Congress regulate local non-commerce in the name of the commerce clause?"

Using semantic originalism, very likely so. During the founding, the word "commerce" did not pertain strictly to economic activity as it does today. Indeed, "to regulate intercourse among the several states" is a better fit in today's language.

[Hartmut]

Be careful, the word "intercourse" has changed its meaning significantly in the last decades (I am not even implying that you mean trans border fornication ;-) )

[farmgirl]

always loved PJ O'Rourke's mention of "nude violation of the Mann Act on a motorcycle" ...

[Brett Bellmore]

"Using semantic originalism, very likely so."

Using semantic originalism, not very likely so; You're forgetting the "local" part; Local activities by definition aren't "among" the several states, unless the locale is a border.

[West]

I disagree. The violence against women act regulated local non-commerce. Under that act, violent acts did not have to involve crossing state lines. Of course, it was held unconstitutional by the Supremes, but the spillover argument made by Congress fits well with the original meaning of "commerce."