Wednesday, February 13, 2008

Scalia on the Constitutionality of "So-Called Torture"

So, you've probably heard about Scalia's comments on the constitutionality of torture (or "so-called torture," as he actually says. Jebus! When did conservatives start loving torture so much???). Anyway, as far as I can tell, what he means is something like this: ("so-called") torture is (so-called?) unconstitutional in virtue of violating the (so-called) Eighth Amendment of the (so-called) Constitution. However, nothing in the (so-called) Constitution prohibits (so-called) cruel and (so-called) unusual methods of acquiring (so-called) information. So, if (so-called) torture is used to get information rather than to punish, the Constitution doesn't have anything to say about it. Which, of course, doesn't mean that it isn't (so-called) immoral, nor that it isn't illegal. Just that it isn't un(so-called)constitutional.

So, though he may not be a terribly good person, Scalia may very well be saying something (so-called) true about (so-called) torture.

O.k., time to get back to (so-called) watching (so-called) basketball. Gotta see who puts the (so-called) ball through the (so-called) hoop more times.


Blogger Tom Van Dyke said...

It warms me to see you give Scalia his props---left-handed of course---even though you disagree with his conclusions and even judicial philosophy.

Make no mistake, Antonin Scalia is a man of very defined beliefs and opinions. But his judicial philosophy is simple: interpret the law. He does not believe that our democratic republic has installed him as arbiter of right and wrong, as a philosopher-king, a ruler.

He is a servant of the constitution and the republic, no more, no less, and applies his brain and unsparing logic to his decisions.

[I can look up again some of his surprising deviations from "conservative" orthodoxy, but not right now. But they do exist.]

Now, there is a weakness to his judicial philosophy: I have no doubt he would have voted with the majority in the infamous Dred Scott decision---the Fugitive Slave Act, to the shame of our nation---was thoroughly constitutional.

As a side note, Clarence Thomas, who's routinely placed in the same judicial philosophy pod and as a clone of Scalia, would have voted the other way.

Thomas would have found Dred Scott as an offense against natural law, Thomas being the last dinosaur anywhere who believes in the (so-called) natural law.

12:28 AM  
Blogger tehr0x0r said...

He may be on to something here. GWB doesn't seem to care about the laws congress passes, he sees them as minor annoyances and while he does still ignore the constitution from time to time he sees it as a larger annoyance. This being the case, perhaps we should ban cruel and unusual interrogation methods in the form of a constitutional amendment. I don't see how this could be a bad amendment, much more worthwhile than the protection of marriage crap congress always has on the back burner.

11:15 AM  
Anonymous Anonymous said...

Scalia's remarks might make more sense if the unconstitutionality of torture were founded on *only* the eigth amendment, but it's not:

1) Torture violates amendment five insofar as it is used to produce evidence to be used against oneslf in a criminal trial, since it is staightforward compulsion to offer evidence against oneself. Granted, this would only mean exclusion of torture-based evidence from one's own trial, and would leave in torture for "just" tactical intellegence purposes. But:

2) The fourteenth amendment protects us against any deprivation of life, liberty, or property without due process of law, which means that the state cannot inflict any such deprivations on a person *except* as legal punishment. (The cops can't deduct $100 from your bank for every minute you don't tell them what they want to know, but fines are legal punishment, and until you are under arrest, they can't keep you in the station.) And of course, torture would not be legal punishment owing to the eighth amendment. There is nothing that the state can't inflict as punishment, but can inflict as policy. Scalia's argument fails (unless he should try go for the childish, I'm-not-touching-you claim that infliction of pain does not count as deprivation of life, liberty, or property).

2:58 PM  
Blogger Tom Van Dyke said...

I believe it's still unsettled as to whether illegal combatants are entitled to full constitutional proptection, and there's the rub.

4:22 PM  
Blogger Tom Van Dyke said...

Coerced testimony legally admissible? Yes, by statute, but perhaps not constitutional...

5:28 PM  
Blogger lovable liberal said...

Scalia is an unprincipled hack, despite all the MSM propaganda you may have read to the contrary. His main skill is dressing up his prejudice in legalisms. Bush v. Gore is an obvious example, but his comments on torture are another.

11:31 PM  
Blogger Winston Smith said...

Bush v. Gore is, indeed, an abomination. The majority decision is just stunningly terrible. It really is just shoddy rationalization in support of a pre-determined conclusion. It is, perhaps, the most shameful part of that shameful chapter in our nation's history.

7:37 AM  
Blogger Tom Van Dyke said...

Oh, I think the notion that Scalia is an unprincipled hack is propaganda. Justice Ginsburg admits that Roe v. Wade is bad law, but upholds the precedent anyway.

Scalia has entered over 600 decisions, some of which would be quite surprising to those who, in their ignorance, dismiss him as a hack.

Criticism of a single case, Bush v. Gore isn't probative, since the Supreme Court was put into the breech during a constitutional crisis, and the majority decision admitted it was a one-of-kind incident in American history.

Sui generis, said the SC decision, explicitly. Don't reason backwards from the exception, I believe most wisdom advises. The SC in 2000 was forced into an executive decision, which I could account for, but there's really no use in trying.

Bad law? Probably. But the majority implicitly admitted that it was. It's just that a proper adjucation of the matter would have had the same result, Dubya as president. The majority glossed over the details to ensure Dubya's inauguration on January 20, 2001 instead of 2002.

11:16 PM  
Blogger lovable liberal said...

The Supremes ruled that equal protection required them to stop the vote count! The remedy was obviously worse - less equal - than the defect, a defect I might add that was a matter of Florida law and could have been remanded for a state-wide remedy.

They clearly didn't rule sui generis - do you know what it means? Instead, the nefarious five conveniently and corruptly ruled from their political bias and against the clear language of the Fourteenth Amendment. They said that Bush v. Gore should not set any precedent. And it's obvious that they did this to forestall the correct claim by Gore that under the opinion, all elections would be equally defective.

Scalia's hackdom, in any case, goes far beyond illegitimate king-making and the easy countenance of torture.

11:17 PM  

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