Did any of you watch the 60 Minutes interview of Justice Scalia by Leslie Stahl? It was on last night and took up the entire hour other than Andy Rooney's usual dribble. I loved the photo of Justice Scalia with Justice Ginsberg riding a camel in India.

Janette A

I tuned in last night specifically to watch the Scalia interview (or interviews -- it was a two-segment story). He is, hands down, my favorite Supreme Court justice, and last night's show did nothing to change that opinion.

My wife, who knows little about him, watched Leslie Stahl question Scalia and concluded, "She isn't very good at refuting anything he says, is she?"

Priceless.

That was a good interview with Scalia. I thought that was interesting when Stahl asked him if he though torture was cruel and unusual punishment.
Scalia said, "How is torture punishment? What are you being punished for?"
I only caught part of the interview, but the part I heard was fascinating. I never knew he had considered being a priest at one time.

Ed Lane

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"How is torture punishment? What are you being punished for?"

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Its not punishment if you didn't do anything
wrong! If thats not a misquote, I'll need to vomit.

He didn't say it was moral. He said it wasn't punishment. Lawyers draw those sorts of distinctions.

He also didn't say it wasn't illegal or otherwise a crime. He just said that only "punishment" can violate the constitutional ban on "cruel and unusual punishment."

I reject his implied definition of punishment as incompatible with the plain contextual meaning of the 8th amendment:

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Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

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In context, the methods of punishment are clearly the target of the prohibition.
Here are some methods of punishment:
* Fines and Forfeiture
* Public Humiliation
* Incarceration
* Banishment
* Partial Mutilation
* Execution
* Torture

The cruel and unusual punishments are forbidden. You don't get around that prohibition by saying its not punishment if the guy is innocent.

If Scalia thinks he is being clever, he is mistaken.

Torture jokes aren't funny.

Where did the talk about innocent people being tortured come from? I thought he was talking about punishment. Under the statement in question, torturing an innocent person can be immoral and illegal. If I'm understanding the context correctly, torture could even be unconstitutional (by violating due process). However, that doesn't necessarily mean torture implicates the ban on cruel and unusual punishments. Right?

So, on the one hand, sentencing someone to being flogged (or even listening to "Dust in the Wind" by Kansas), may be a cruel and unusual punishment.

And on the other, as I've demonstrated above, jokes that aren't funny can be torture.

[This message was edited by David Newell on 05-07-08 at .]

Scalia is a true "originalist" only when it produces results that suit his agenda. Otherwise he uses sophomoric word games to advance his activist causes under a guise of strict construction.

This "punishment" word-play is a fine example.

Scalia convinces himself that the purpose of the 8th amendment is not to preserve the right of people to be free of government inflicted cruelty, but rather to limit the allowable justifications for government inflicted cruelty.

In its proper context, the 8th amendment prohibits government inflicted cruelty. Only an activist jurist would argue that point.

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Originally posted by AlexLayman:
In its proper context, the 8th amendment prohibits government inflicted cruelty. Only an activist jurist would argue that point.

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"Bail, fines, and punishment traditionally have been associated with the criminal process, and by subjecting the three to parallel limitations the text of the Amendment suggests an intention to limit the power of those entrusted with the criminal-law function of government. An examination of the history of the Amendment and the decisions of this Court construing the proscription against cruel and unusual punishment confirms that it was designed to protect those convicted of crimes."
-Ingraham v. Wright, 430 U.S. 651, 664 (1977)

Scalia didn't author that opinion, did he?

No he was appointed by Reagan.

I think Fresno Bob was being sarcastic. But no, it was Powell.

True that.

In Ingraham v. Wright a student tried to avoid spankings at school claiming it was cruel and unusual punishment...

Yes, and? They were state actors inflicting physical pain against citizens, and the Supreme Court unambiguously said the 8th Amendment does not apply outside criminal contexts. Period. Now, if you'll read the opinion, they also said that there were other constitutional concerns. Hence Scalia's true statement here -- it's not punishment, it's not 8th Amendment. That doesn't mean it's not immoral, illegal, or unconstitutional. We're lawyers. We have to be precise in our language and our use of the law. I can't suddenly decide that a law applies to something just because I think it's bad. I have to actually apply the correct law under the circumstances.

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Originally posted by AlexLayman:
In its proper context, the 8th amendment prohibits government inflicted cruelty.

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Then why doesn't it say that?

You've got to look in the penumbra to see it.

Most of us work indoors. It's bad luck to open a penumbra indoors.

Is it government inflicted assault?