Antonin Scalia says, "...it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face."

why does scalia and every other neo-tard put violent POLITICAL crime in this separate, special category??

Obv, not while court is in session.

What fun is that!

Every pithy and erudite comment about never really knowing what someone else is thinking and how some of your closest friends probably have opinions you would find reprehensible is being drowned underneath a massive "wau cock" reaction to this story.

boo freakin hoo

Surely I'm not the only person dying to know what opinions of Ned's that Dan finds reprehensible.

Well, there's the whole kittenshoes thing.

kittenshoes is torture

http://www.musikmarkt-wiesbaden.de/images/JACKSONS%20torture%20LP.JPG

whoa i remember that sleeve! very duran duran

My constitutional views on kittenshoes have evolved while in office.

Every pithy and erudite comment about never really knowing what someone else is thinking and how some of your closest friends probably have opinions you would find reprehensible is being drowned underneath a massive "wau cock" reaction to this story.

What does that have to do with anything? The main issue here isn't that people have weird ideas.

Here's Antonin playing his favorite game, Scalia vs Texas:

http://planetsean.blogspot.com/ScaliaDelay.jpg

Apparently the main issue here is that people like to freak out over stuff they disagree with that sounds a bazillion times worse when taken out of context.

Antonin Scalia, it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face.

the frustrating thing about scalia is that he is nothing if not internally consistent. all those views expressed above really are rooted in a very strict and literal interpretation of the constitution. hence, torture isn't punishment because it's associated with a conviction under law. in the same interview he said that smacking around people that are already in jail would be awful and unconstitutional.

not looking abroad for legal insight is also part and parcel of his chosen reading; if all the answers are contained within the founding document, why on earth would you look to europe or where ever for assistance or influence?

i think this is why his opinions are so entertaining to read (he really IS a great writer): because he's arguing from a very entrenched and reductionist position, it's very easy for him to frame every problem within the constraints of a strict interpretation. if the practical implications of his reading are messy or immoral or unethical or whatever, who gives a shit? it's not his job to worry about that. or at least that's how i think he sees it.

Like what if we just reaaaaally need to sway him on an upcoming decision? i mean those can have hueg consequences for our nations future right?

What drives me crazy is the smug assumption that no one else has done the intellectual/moral heavy lifting WRT torture. That by "bravely" facing the fact that extreme situations might demand unusual (even illegal) responses, the pro-torture folks are going where no man has gone before. It's an absurd and condescending premise.

We all know that you can't always draw a clean line between right and wrong, acceptable and unacceptable. But we have to draw the line somewhere. That's what the rule of law is all about. Scalia basically seems to be arguing against the rule of law, arguing that even the most basic human rights and protections may be suspended when expedient. It calls into question the entire premise of the Constitution. The fact that it's framed as Constitutional literalism is just the final insult.

its not like ive convicted him of anything!

if the practical implications of his reading are messy or immoral or unethical or whatever, who gives a shit? it's not his job to worry about that.

Yeah, I think this nails it.

On that note, GBX OTM.

Apparently the main issue here is that people like to freak out over stuff they disagree with that sounds a bazillion times worse when taken out of context.

Out of context nothing. It sounds just as bad in context.

Actually it doesn't, but whatever.

ANTONIN SCALIA, THE GREEN GOBLIN HAS SUSPENDED A SUBWAY CAR OVER THE HUDSON

EVERYONE IN THE CAR WILL DIE UNLESS YOU PERSONALLY MACHINE-GUN ONE CUTE BABY WITHIN FIVE MINUTES

WHAT DO YOU DO??? OMG

if Scalia were a Marvel villain he wouldn't even need a villain name – "Scalia" is just fine.

TO TAKE A REAL-WORLD EXAMPLE: IF SOME HIGH SCHOOL STUDENTS WERE PLANNING SUCH A SUBWAY-CAR SUSPENSION SCENARIO, TAKING CUTE-BABY-MACHINE-GUNNING OFF THE TABLE WOULD LEAD TO THE DEATHS OF MANY MORE INNOCENT PEOPLE AND PROPERTY DAMAGES RUNNING INTO THE TENS OF THOUSANDS OF DOLLARS

it doesn't take the bbc's unfavorable editing to turn this into another quiet disaster in international relations

very expansive view of what can be done to a suspect if someone, somewhere, thinks there is danger? check. very cramped and nationalistic view of how law relates to justice, fairness, and human dignity? check.

Actually it doesn't, but whatever.

I understand not wanting to debate the point, but that's just a cop out. I've read the transcript. Scalia's views are in no way misrepresented or even dumbed-down in the article linked. They're mocked, but that's it.

we can grab anyone on earth and declare them an enemy combatant and there's nothing anyone, anywhere can do about it, in the US, or especially outside it, since none of those law effectively exist. and we can do whatever we want to them, and nobody can do anything about that either, because they're not convicts yet!

very expansive view of what can be done to a suspect if someone

That's what's galling here. Scalia's argument hinges on the idea that people who have been convicted or charged with crimes are guaranteed certain protections and rights. But people who are merely suspected of crimes do not (this distinction only to be invoked in "extreme circumstances," of course). Given that law enforcement & investigatory agents/bodies routinely deal with situations in which human life is at stake, it seems like a not-so-subtle plea for license to police without legal restraint.

I heard this yesterday. Obviously the guy is pretty unpleasant, but I don't think he's an idiot. His attempts to claim not to be a conservative did jibe a bit with his mention of "homosexual sodomy" etc.

His whole thing about cruel + unusual not applying is, well, I guess logically defensible. Does he generally get tied up in knots, though, or is he logically consistent in his interpretations?

You can download an MP3 of the whole interview here btw:

http://www.bbc.co.uk/radio/podcasts/law/

(lots of x-posts)

Yeah, but read what he wrote in the Hamdi decision, in which his reasoning boiled down to: charge'em or let'em go.

(xpost)

He also interestingly suggested that if all judges just went right back to the constitution, that would remove the political aspect of appointing judges.

i realize he's taking a shot at breyer (or whichever justice it is that quotes foreign precedent all the time) when he says:

"I don't look to their law, why do they look to mine?" he said. "We don't pretend to be Western mullahs who decide what is right and wrong for the whole world,"

but "why do they look to mine?" is the most offensive thing he said, much more than the cheeky 24 riffing -- foreigners look to "yours" because no other country has the means, or has given itself the right, to hold their fellow citizens indefinitely without recourse and torture them in the meantime. there's no way he doesn't know this.

In cases dealing with pretrial detainees rights, my recollection is that while the 8th Amdmt is not applicable, SCOTUS applied 14th amdmt due process reqmts to hold that those detainees must receive equivalent protections. i think its city of revere v. somebody

i also remember reading i think it was a thomas dissent where he argued that abysmal prison conditions don't violate 8th amendment, because prison conditions arent punishment, they're like, incidental. i'll see if i can find i was like !

i realize he's taking a shot at breyer (or whichever justice it is that quotes foreign precedent all the time)

It's Kennedy.

there's no way he doesn't know this.

i think he totally knows this, and doesn't understand why people in other countries would do such a thing.

worry about getting picked up and tortured? itisamystery.jpg

http://www.ocregister.com/newsimages/local/2005/08/30chapman.jpg
see theres no interpretation here im just going right back im going to the constitution the c-o-n-s-t-i-t-u-t-i-o-n dont you see me going to it going right back to it? god.

if you're a citizen or any country, who doesn't break the law, ever, why would you worry about getting picked up by the FBI for torturing people? do you really think the FBI goes around throwing people in the backs of vans and give people the lash? you've got about as much of chance as that happening as being in a plane crash, probably a lot less.

(not to say that the FBI imprisoning the wrong person doesn't happen. i just think it happens less often than you think.)

citizen of any country

the point is no one anywhere has a legal means of doing anything about it when it happens. sure it's an outside chance, but it's being justified by an even more outside and fictional chance: things that happen on television.

remember the woman from iceland who was strip searched and locked up at jfk for several hours, totally incommunicado, for overstaying a student visa by a few weeks, a decade ago? remember that? lucky for her someone decided she wasn't a threat. also, she was white. the point is the legal rabbit hole that people can be shoved into has a VERY wide opening and it goes very deep and dark very quickly.

but it's being justified by an even more outside and fictional chance: things that happen on television

yeah i agree the 24 comparison is fucked up.

but we're forgetting something...

Kind of a side point...

In the US, we have (or have historically had) two citizen classes: Full Citizens and Criminals. Full Citizens are guaranteed certain clearly-defined rights and protections. Criminals are a reduced-status subgroup: they lose some specific FC rights/protections, but retain the rest.

Suspects have in the past been seen as Full Citizens. They may be obligated to cooperate with certain procedures in order to retain FC status, but they are not a reduced-status subgroup, like Criminals.

During the Bush administration, it seems to me that there has been a big push on all fronts to create an entirely new citizen class composed of suspects and enemies of the state. This new class is portrayed as being so dangerous that they must be granted as few legal rights/protections as possible - ideally, none. It's understandable, but troubling, and I haven't seen it remarked on much.

I guess the bullet point there is Entirely New Citizen Class.

dont you wish this kind of shit was more bizarre and surprising instead of totally predictable

Mr. Que, have you ever actually read any of the stories of the Guantanamo detainees?

considering our armed forces basically passed out flyers in Afghanistan that amounted to "cartoony terrorist = big bag o' money," it's not that much of an outside chance

Nino's interview with Lesley Stahl

Weeklong series of interviews of Scalia by Peter Robinson.

Not sure if I can bring myself to watch him interviewed by someone likely supportive already of Scalia's views.

To quote Frank Black, it's educational.

The interviewer is not that bad. He asks some decent questions, although certainly doesn't grill Scalia as much as I'd like.

I found the part II very revealing, actually. Scalia likes his Constitutional Law philosophy because it provides certainty and protects him from coping with scary change.