Scalia: ‘Torture Is Not Punishment’

Eric Garris, April 30, 2008

In an interview on last Sunday’s 60 Minutes, Leslie Stahl asked if the term “cruel and unusual punishment” applies to someone “being brutalized by a law enforcement person,” Scalia replied:

“To the contrary, has anybody ever referred to torture as punishment? I don’t think so.”

The exchange continued:

“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.”




102 Responses to “Scalia: ‘Torture Is Not Punishment’”

  1. This amoral cretin should have been impeached along with his four buddies on December 13th 2000. In Bush v. Gore they violated their oath of office.

  2. This supposed learned justice doesn’t get it does he. The so-called suspect is ordered to tell the officer what the officer wants to know. If he disobeys the order, he punishes him with torture. Simple, isn’t it. They’re all crazy at the Supreme Court, aren’t they.

  3. As always, when one of these people says something like “torture isn’t punishment”, Scalia should be subjected to prolonged, savage beatings and then ask if his view on torture as punishment has changed.

  4. I predicted this as the position that would have to be taken if even the pretense–and it is a pretense–of “Constitutional law” was to be preserved.

    Scalia is well trained in casuistry and sophistry. There is an analogue in Hamilton’s opposition to a Bill of Rights.

    Hamilton’s argument, which was utterly disingenuous, was that in acknowledging and stating specific rights, other unstated rights would be implicitly denied.

    This is equivalent to saying that by putting up the sign, “Keep off the grass” on one’s lawn, one is in effect implicitly authorizing someone to burglarize your house.

    So Scalia, and others on the same pattern–“cruel and unusual” applies to “punishment” after trial and conviction, not to “interrogation and investigation”?

    In that case, those presumed innocent until proven guilty have less rights and protections in law than those convicted and sentenced to “punishment”.

    This is just scratching the surface. A deeper and more sophisticated analysis would inclined exposing how a similar cryptotype is at the base of plea-bargaining.

    The matter of guilt or innocence is set aside and the image is:”Things will go easier on you if you plead guilty”.

    Now add torture and abuse of those who are presumed innocent and the underlying pattern becomes clear.

  5. corr:”would include exposing”. Pardon this and other typos.

  6. And, if I may, merely to repeat another Carthago delenda est–Mr. Paul, when ARE you, as a Congressman and supposed “Constitutionalist”, going to do your constitutional duty and loudly call upon and lead other “Republicans” of the “party” you are trying to save to join Kucinich and Wexler in impeaching Cheney?

    Impeachment is structurally the only remaining constitutional remedy to criminals in the office of President and Vice President.

    One might now add also impeaching Scalia and most of the Supreme Court.

    Put up or shut up, Mr. Paul.

  7. [...] Scalia: ‘Torture Is Not Punishment’ [...]

  8. This only shows how far the U.S has regressed.These are the enablers and aplogists for a rotten to the core regime!And it is the same people who point to corruption of judicial system of third world countries!Not one judge of the supereme and mighty! stood up to Il Duce Bush.However, in Pakistan,third world countries,judges stood up to the dictator and risked everything!

  9. If they try to do this to me or any one in my family…..thats it, they will have a few less people carrying out their evil plans.

  10. Oh..Please lets torture this guy…it wouldn’t be personal..you know, “not punishment” just a fact-finding mission… (Al Capone was a devout Catholic who revered his Mother)

  11. It is more than the regime. It is the system.

  12. Does this really surprise anyone? If the long history of extra-constitutional fiats emanating from this body of black-robed criminals hasn’t driven home the fact that they utterly lack respect for not only the law of the land they are sworn to uphold, but for the people who live under it, nothing else will.

    The fact that not only Scalia, but the rest of his senile cohorts and all of their antecedents have served full terms on the nation’s highest bench without being impeached, removed, and convicted of treason shows just how far beyond redemption we really are.

  13. How did this clown ever get a degree in law???

  14. It’s amazing how the arrogance of these people blinds them to any consequence, no matter how large. Or could it be that Scalia and his ilk are just that good at acting like they really believe their own nonsense? If only a guy like him could experience getting “not punished” one day.

  15. Once again–it is the system.

    Scalia is just one of many, perhaps a bit better at the masquerade.

    He calls himself a “strict constructionist”, for example.

    Actually he is more of a deconstructionist–with this difference.

    Derrida’s purpose, at base, is to expose the inherent fludity of texts, not necessarily to pervert them.

    Scalia’s purpose is to pervert and facilitate his and other’s power and hidden agenda while preserving a supposed “surface” of law and legal argument.

  16. It is hard for many to see why Leo Strauss is so important in providing the underlying “intellectual” framework of those operating in the present “system”.

    Nor does it matter much whether any specific agent, Scalia for example, actually has read a word of Strauss.

    The milieu Strauss framed, partly through the Neo-Cons, partly through “Conservative” sophistry in general, is the air they breathe.

  17. ok its not punishment, just kidnap, assault, mayhem, sometimes murder, war crime and many other felony crimes.

  18. Uh…

    There’s a growing tendency among our patent-leather equestrian class – our temperate-air imperators – to apply hair-splitting semantic provisions to everything they say, twisting their intent to accomodate interpretations more… palatable.

    For instance, Scalia can’t really be pinned down here. He seems to be saying that because torture isn’t clinically “punishment” (THAT would require those troublesome formalities of conviction in a real court, and sentencing by a genuine judge), it’s OK. Really, torture is just an instrument of interrogation; the law shouldn’t quibble over every little detail, like bamboo shoots and iron maidens.

    Or… maybe he’s saying that because torture isn’t really hurtful, our bulls can continue to play “dunk the Omar”. Or is he indicating that torture isn’t “just punishment” – and therefore illegal? There are a number of escape hatches in his rumination. And Lesley Stahl, who’s a lot better interviewing throwaway celebrities, doesn’t exactly back him into a corner.

  19. So in America, you can torture somebody all you want as long as you first say, “By the way, before we begin, I want to clarify that as far as I know, you haven’t done anything wrong — so what I’m about to do to you is not a punishment….”

  20. One obvious problem: Many police departments use “pain compliance” techniques which often exceed Gonzo’s definition of “torture,” and 1/600 times, kill. To prohibit non-arrest, pre-arrest, non-trial, and pre-trial torture would require retraining all those police officers. Any “law-and-order” authoritarian will balk at bringing the police under the law.

  21. Say what?

    You can get anything you want at Alice’s Restaurant
    You can get anything you want at Alice’s Restaurant
    Walk right in it’s around the back
    Just a half a mile from the railroad track
    You can get anything you want at Alice’s Restaurant…”

    Arlo Guthrie

  22. Have you read Cruz Smith’s Gorky Pary by any chance?

    I am not referring to the film.

    Smith is just one step short of great. A pity–but still first class.

  23. It cannot be proven than any torture is not punishment.

    We have only a government’s assurance that a given torture is to extract information: dubious bause the vast majority of the government’s own experts agree that information obtained through torture is unreliable.

    There’s skunks about. Watch it.

  24. I also commend Emir Kusturica’s Underground: Once Upon A Time There Was A Country.

    Most reviewer’s seem to think it is about “Yugoslavia”.

    Well, to a some extent yes.

    On the other hand, if it were only that there would be no reason for, say, Americans, to watch it over and over again until they understand it, would there?

  25. “It cannot be proven than any torture is not punishment.”

    That’s a great sentence!

    Among other things, and in context, it isolates how Scalia has tried to limit his use of the word “punishment”, thus his “meaning”, to what seems to appear, according to him, in a strictly Constitutional context.

  26. `It’s a pun!’ the King added in an offended tone, and everybody laughed, `Let the jury consider their verdict,’ the King said, for about the twentieth time that day.

    `No, no!’ said the Queen. `Sentence first–verdict afterwards.’

    `Stuff and nonsense!’ said Alice loudly. `The idea of having the sentence first!’

    `Hold your tongue!’ said the Queen, turning purple.

    Lewis Carroll

  27. “You can get much further with a kind word and a gun than you can with a kind word alone.”

    Al Capone as a strict Constitutionalist, partial to the Bill of Rights?

    One has never seen the topic tackled.

    Eliot Ness and the WCTU before firing squads.

    The war against the Enlightenment.

    A return to Medievalism.

    Sartor Resartus.

    Prohibition Revisited.

    Alas, it must seem all rather disconnected as the invocation of mere words.

  28. Original Sin?

  29. Ah well, what does it matter. It’s only a blog.

  30. corr: “fluidity”

  31. It shows how insane and morally bankrupt this country is when someone so demented, depraved and has such idiotic reasoning is one of the highest judges in the land.

  32. A Catholic, it would seem to me that any knee-jerk support of Republican presidential candidates out of concern for the nomination of Supreme Court justices sypathethic to life questions ought to be taken under very careful advisement at this point. What used to be almost purely a matter of furthering the interests of anti-Roe candidates now has become a kind of Faustian deal involving a trade off of these interests in exchange for support for such grotesquely expanded executive powers as for one to be complicit in the creation of an American dictatorship. Francoism, as popular as it may be at such blogs as Taki’s Magazine, can never be the price of one’s pro-life bona fides. We seem increasingly to be looking into the face of Hans Franck as we gaze upon the Alitos and the Scalias.

  33. I think you’ve just defined (perhaps verbatim) the disclaimer that every badged, uniformed, gun and taser-toting thug in the employ of the State will utter in the very near future as they begin beating and tasing you for your next traffic infraction.

  34. I have for sometimes been wondering if justice Sandra Day O’Connor really retired or was forced to retire!?

  35. Doesn’t anyone use the dictionary any more? Even those who might like a pretense at intelligence?

    Punishment is retributive and in the context Scalia was speaking in (and trying to make the distinction) something applied after you have been found guilty.

    That is also the distinction between Jail and Prison.

    Many here would distinguish “Force” from “Initiating the use of Force”.

    To say X is not Y is not to say X is not evil.

    Consider: “Isn’t not supporting Israel being Anti-Semitic?”. You’d say they are not the same thing and even all those who support Israel and all those who detest Antisemitism should be able to make the distinction.

    Is a root canal punishment? (maybe bad karma for too much good caramel?) Is it torture (if the anesthetic does not suffice)?

    Mixing up definitions and being stubbornly opposed to making proper distinctions is not worthy of most of the authors here. Or perhaps the cause is not so important that they prefer to sound like vapid shrill shouters instead of pointing out the key issues and distinctions and making sharper contrasts.

    Aren’t many innocent people being quite specifically Punished (many without the specific issue of torture) even without being found guilty of anything? Being deprived of property, liberty, and even life?

    Aren’t many innocent, and perhaps even some guilty people being tortured long before any judicial accusation is made?

    These are two quite distinct evils and our country and leaders are guilty of both. And both are crimes. And both need to be addressed. Separately. Distinctly.

    Someone else has posted that he is Catholic. Does he not know how to do a proper examination of conscience before confession, or does he just go in and just say he was generally evil?

    Sigh. Sometimes your allies insist on doing more damage than your enemies.

    A bad argument, or even a good argument argued badly usually scores for the opponent.

  36. Put succinctly, if you do not know or cannot make the distinction between punishment and torture, jail and prison, you have no cause to accuse our leaders of not being able to distinguish Iran and Iraq, or Shiite and Sunni as the latter are less distinct.

  37. Indeed – and tell him this torture is called Happy Fun Time. We can call it that for him because it just happens to be correct.

  38. Great points, tz, save for the fact that America (Britain/Israel) had already found Arabs guilty (to “make a pretense at intelligence”…”in the context Scalia was speaking in”) well before the time of Lawrence of Arabia.

    Same applies to, in order: Wampanoags and other coastal tribes/westward Cherokee/Iroquois (and others); Blacks; Mexicans; Germans; Irish; Japanese; Chinese and other “Asians”; at one point in history, Jews; and, now Arabs. Shall we now split hairs about whether occupation and torture are collective “punishment” too…?

    (Special note: my ancestors decimated the tribes of Virginia, and drove the first-arrived Africans at Jamestown before the lash beginning 1619; and made fortunes supplying all of the wars of the “Republic” with soldiers and arms before the “founding.”)

    Is torture “punishment,” or, interrogation?

    Scalia’s “context”: methinks punishment.

  39. Great points, tz, save for the fact that America (Britain/Israel) had already found Arabs guilty (to “make a pretense at intelligence”…”in the context Scalia was speaking in (sic)”) well before the time of Lawrence of Arabia.

    Same applies to, in order: Wampanoags and other coastal tribes/westward Cherokee/Iroquois (and others); Blacks; Mexicans; Germans; Irish; Japanese; Chinese and other “Asians”; at one point in history, Jews; and, now Arabs. Shall we now split hairs about whether occupation and torture are collective “punishment” too…?

    (Bonus pinup: my ancestors decimated the tribes of Virginia, and drove the first-arrived Africans at Jamestown before the lash beginning 1619; and made fortunes supplying all of the wars of the “Republic” with soldiers and arms from before the “founding.”)

    Is torture “punishment,” or, interrogation?

    Scalia’s “context”: methinks punishment.

  40. I have a good Idea-let`s torture this scalia bum and see if he changes his intellectually challenged mind. If the american government and supreme court and media etc. are looking for terrorists they need only find a mirror and take a long hard look.

    Why aren`t americans outraged at what has happened to your country over the past 28 years (in particular the past 8 years)? Will you ever unite and reclaim your land?

  41. I cannot wait for the day when chaos takes over America and the people will have a chance to put it’s politicans , media sluts and their head turning family members against a wall and extract justice.
    That is , before they can escape to Dubai with Cheney and friends who will be way ahead of them all.
    Bush will probably be sitting around finishing up his goat book.

  42. The exchange between Leslie Stahl and Anthony Scalia reveals the depth of the evil which permeates ethnic Anglo-Saxon American society. The fact that Scalia is of Italian descent does not make him any less ethnic Anglo-Saxon. But Scalia’s “foreign” roots means that he must do twice as much as his Anglo-Saxon surnamed compatriots on the Supreme Court to prove his bona fides as a real red-blooded patriotic American. And this applies in spades and in clubs, respectively, to such as Clarence Thomas and Alberto Gonzales who face a “color” barrier that Scalia has probably never had to face although his parents or grandparents almost certainly had to.

  43. When it comes to torture I would think that we are all family

  44. As Jon Stewart put it, it’s interesting that in the phrase “Cruel and Unusual Punishment” Scalia objected to “Punishment”

    It’s Cruelty and unUsual but PUNISHMENT!? Thats where Scalia draws the line.
    She should have said Cruel and Unusual interrogation. Then it would be ok.

  45. Torture is torture.

  46. Maybe it is because most “Americans” are feeding at the trough.

  47. I think Scalia has a point – if the authorities are using torture during interrogation, they are not punishing you, because their goal is interrogation not punishment. What they are guilty of; however, is felonious assault and battery. This is an easy charge to prove compared to “cruel and unusual punishment”. And I would love to see a whole bunch of our fascists that were involved at Gitmo and Abu Grahib face assault and battery charges. And if they possessed a firearm at the scene and at the time, get the minimum 3 years incarceration, tacked on.

  48. Indeed. If the last decade has proved nothing else, it’s proven that the Constitution is fatally flawed by the high bar set for impeachment and removal of both executive and judicial officeholders. Indeed, this should have become obvious 150 years ago with the failure to convict Andrew Johnson. If the overwhelming Republican majority at the time couldn’t manage to remove Johnson, it was clear no President would ever be removed. After that, the power of the Executive grew inexorably.

    We should be agitating for a Constitutional Amendment making it easier to remove both President and Justices. It may be possible to get Congress to propose one for ratification since 1) amendments need not be signed by the President and 2) ratification would greatly enhance the powers of Congress versus POTUS and SCOTUS.

    As to Scalia’s opinion on torture, perhaps the problem was that Leslie Stahl asked the wrong question. Perhaps she needed to be asking about the 5th Amendment, rather than the 8th. I don’t like Scalia any better than anybody else here seems to, but I believe the 5th
    Amendment was specifically designed to protect people from torture, threats to family etc. Perhaps Scalia’s answer would have been a little different. He clearly wanted to cut the discussion short; perhaps he believes the question is destined to come before the Court.

  49. Torture is retributive. It’s the policeman, with the power of the state behind him, making a summary judgment to punish an individual if that individual refuses to obey orders he gives, in this case this being the order he gives for information that he wants. The agent of the state officially has the state behind him, giving him the power to mete out this punishment.

    So agent of the state says “Tell me what you want to know or you will be tortured”. The victim says “no”, and so punishment is inflicted.

  50. The threat of arrest in and of itself is supposed to deter people from wrongdoing; a time in jail is not supposed to be pleasant. Having one’s possessions rifled through as a suspect is also punitive, and it is hoped that fear of this will cause people to go on the straight and narrow and not run afoul of the authorities, even if not guilty of a crime. It’s why the fuzz give out $625 tickets for a trumped up charge of sitting on a park bench when the real reason is because he didn’t let them delete the pictures of their activities from his digital camera; it’s to punish him for taking those pictures even though he probably won’t be convicted. Similar tactics are behind the SLAPP phenomenon, to deliberately file harrassing lawsuits that they know in due course they will lose in order to harass the victims into silence.

  51. Methinks George Orwell is still alive and well.

  52. In origin punishment is penalty, after its Latin root, punire. So one is “punishable” with a fine or exile as well as physically. Still the colloquial expansion in English is at least two centuries old:

    Punish: 1340, from O.Fr. puniss-, extended prp. stem of punir “to punish,” from L. punire “inflict a penalty on, cause pain for some offense,” earlier poenire, from poena “penalty, punishment” (see penal). Colloquial meaning “to inflict heavy damage or loss” is first recorded 1801, originally in boxing. Punishing “hard-hitting” is from 1811. [Online Etymological Dictionary]

    The distinction between “Jail” and “Prison” is not a clear as you seem to want to make it:

    Jail:c.1275, gayhol, from O.N.Fr. gaiole and O.Fr. jaole, both meaning “a cage, prison,” from M.L. gabiola, from L.L. caveola, dim. of L. cavea “cage.” Both forms carried into M.E.; now pronounced “jail” however it is spelled. Norman-derived gaol (preferred in Britain) is “chiefly due to statutory and official tradition” [OED]. The verb “to put in jail” is from 1604. Jailbird is 1603, an allusion to a caged bird. Jail-break “prison escape” is from 1910. Jail bait “girl under the legal age of consent” is attested from 1934. [ibidem]

    Too, purely administratively, people do “serve sentences” in jails, confusing the matter even more.

    Though Foucault may have marvelously interesting things to say on the subject of punishment as a manifestation of ideology–as does Nietzsche–the history of incarceration as punishment has not been written, at least that I have seen.

    It is a signal fact, for example, that Jefferson was reading Beccaria when the idea of “serving time” as “penalty” was relatively new and considered “humane”.

    In the ancient world, prison was seldom if ever used as “punishment”, and though there were prisons punishment as penalty was not, in general , why one might be incarcerated.

    None of this, save on the matter of sundry distinctions, energetically interferes with the points you make.

  53. On the topic of Mr. Alphonse Capone as a freedom fighter, one notes one of the passages of Beccaria Jefferson copied out into his Commonplace Book:

    “Laws that forbid the carrying of arms . . . disarm only those who are neither inclined nor determined to commit crimes . . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”
    [passage as quoted in wikipedia].

  54. Exactement.

  55. I saw bits of that interview on I think Jon Stewart, and I noticed he was not wearing his pin. What a gross individual.

  56. Well said, tz. Clearly Scalia is distinguishing torture as punishment from torture as a means to getting information. Torture is wrong in either case, and it appears Scalia has no problem with torturing to get information, but his distinction is legitimate.

  57. Oh please. Black-robed criminals? Senile cohorts? Get a grip, you shameless demagogue. I don’t know what your specific problem is with every Supreme Court justice ever to have served on the bench, but the general tone of your whining is pretty clear: the country didn’t shape up the way you wanted it to, and your arrogance has convinced you that no reasonable person could possibly disagree with your (no doubt) ridiculously stupid opinions on a wide range of judicial issues. Your linking “extra-constitutional fiat” to Scalia’s slippery, legalistic endorsement of torture borders on absurdity, since his argument hinges on the overly-careful attention–one might say “strict”–attention to the text of the Constitution you seem to espouse. Which “law of the land” did you have in mind? The one vaguely and ambiguously set out in that document, or the one ensconced in your biased, narrow-minded little head?

  58. Scalia is an embarrassment to America, its schools, its people, Italian Americans in particular, and any other civilized people on the planet. There should be a method for the people to circumvent our "leaders" and impeach these morons. As I've always said, the supreme court is simply nine political lawyers — could we find a worse group to choose from?

  59. Scalia is right. Torture is not punishment, it is a crime. It is a crime that deserves punishment.

  60. I am appaled by Stahl’s handling of Scalia. How could he let him off the hook so easily.

    In the prohibition of cruel and unusual punishment the law makes a statement that indicates a desire to protect the innocent in the grinder of justice after their trial. Scalia’s interpretations put that on its head.

    So a certain mistreatment – cruel and unusual punishment – is prohibited after the guilt of an accused is established. It is not allowed even though a court has established the guilt of a person.

    How then can the same mistreatment be legal when the guilt is still in doubt? Ah, nevermind. According to Scalia, whether it constitutes torture depends on the motive and timing, not on the deed itself. How very reassuring to hear that from a supreme court judge.

    Scalia is a disgrace for the profession.

  61. And let me add this too:

    Stahl didn’t ask the questions persistent enough, suggesting to me (sadly) a lack of legal understanding. Alas, you cannot pit an amateur against a silver tongued monster like Scalia and expect him to point out and extract contradictions. In that sense, Stahl played out of his league, and lost. Too bad.

  62. ConfusedPonderer: Leslie Stahl’s a she, not a he.

  63. I only read the transcript with the relevant passage.

  64. It is my understanding that Mr Kucinich has authored a bill that by-passes the usual Congressional hearings prior to a vote on impeachment. Dr. Paul issued a statement that, while he may believe impeachable offenses have taken place, he must reluctantly vote against an impeachment resolution until Congress does it’s due dilligence and conducts proper hearings. I believe Dr. Paul has “put up,” and that if Mr. Kucinich wants to get Dr. Paul’s support he will have to follow established law concerning impeachment.

  65. [...] Via Antiwar.com. Posted by Jim Henley @ 8:42 am, Filed under: Main « « Car Culture isn’t our only social pathology | Main | [...]

  66. What would you expect from the same media that has forever been an instrument of the state,sold us wars and occupations as librations and freedom,was a cheerleadr for wars,and presented wars as entrtinments for stupid masses.None of them tried to expose the lies and falsehoods.Scalia was on 60 minutes show to pull the cover on our eyes once again,and CBS was a willing participant.The questions were decided on and chosen beforhand.One question should have been asked of the esteemed justice is he for torture or not,answer yes or not without the play on words.One of the accusations aginst dictators the west no longer care for is that they use torture.

  67. I figured. It was just a friendly correction.

  68. First, tu quoque is a fallacy; even if “you” cannot make any of those distinctions, it doesn’t follow that “you” shouldn’t expect our leaders to be able to do so. Second, your claim about the relative distinctness of punishment/torture and jail/prison on the one hand, and Iran/Iraq and Shiite/Sunni on the other, strikes me as obviously false. Are you joking? What exactly is your standard of “distinctness” here? Iran and Iraq are perfectly distinct territorially, at least, and Shiite and Sunni are well-defined and mutually exclusive religious categories… punishment, torture, jail, and prison are each used in several different ways, and so their “meaning” is, to some extend, indeterminate. Perhaps you’re appealing to legal definitions? But if that’s the case, states and most religions also admit of (equally) precising definitions (since such definitions are a matter of stipulation).

  69. Regime media are enablers of deceit, lies and propaganda.

    The public and poor grunts who paid for those lies, deceit and propaganda with their lives and limbs are PARTICIPANTS who make it all possible.

    May the circus continue!

  70. An important point, mon ami: however much Sunni and Shia have in common (an enormous amount), the distinction between those who call themselves or are called the one or (aut)the other is much more precise than distinguishing between “punish” and “torture”, “prison” and “jail”.

    In any case, Scalia’s perversity is more than “legal” precision. He is quite obviously, as noted above, trying to confine “cruel and unusual” strictly to punishment, and in an exclusively constitutional context.

    His antics, as also noted, were very predictable.

    Were one in a Foucaultian mood, one might extend one’s index finger in the general direction of the parallels between Scalia’s approach to the Constitution and the literalists’ approach to their “Bible” (whatever their “THE Bible” may mean).

    In fact, even the supposed “legal definition” you are quite right to suspect is naive and ethnocentric, thus unconsciously validating, to a degree and likely unconsciously, Scalia’s own and thoroughly sophistic context.

    For the discerning and in the context of an earlier evening with Cratylus, one need only smile and refer “hoosegow”:

    hoosegow “jail,” 1911, western U.S., from mispronunciation of Mex.Sp. juzgao “tribunal, court,” from juzgar “to judge,” used as a noun, from L. judicare “to judge,” which is related to judicem (see judge). [Online Etymological Dictionary]

    It is a pity Mencken’s American Language is not online, as far as I know, nor any number of etymological dictionaries in various languages.

    At any rate, the dictionary in question, granted one has an extensive and previous purchase, is not at all shoddy for what it is.

  71. Jefferson reading Beccaria! Bosom buddy of Mazzei! Garibaldi offering his services to Lincoln (and being refused). Di Cesnola’s Congressional Medal of Honor and his Cypriote antiquities!

    What is the country coming to!

  72. Jesus H.–the next thing you’ll know someone will mention Longfellow reading Italian, or Chaucer stealing from Boccaccio.

  73. I’m left wondering how this guy became a Supreme Court Justice. If this is what passes for “learned reasoning” in American society then truly we are f**ked. Of course, that’s been a forgone conclusion since around September 12, 2001.

  74. Bank of England To Offer Bonds To ‘Unfreeze’ Credit

    London–[Bloomberg April 21, 2008] The Bank of England today will release its plan to swap government bonds for mortgage-backed securities in an effort to ease credit costs and help British homeowners, said Chancellor of the Exchequer Alistair Darling….

    Anyone care to connect the above report(except for the “offer” utterly misleading in stated purpose and aim) to the use of “Anglo-Saxon” as something more than an indication of one of the Germanic languages once spoken in Britain?

    To “Judaio-Christian” too then, which in effect coined a new class of “hyphenated Americans”, hehe.

    Why would the British government be interested in “mortgage-backed securities” that are supposedly worthless?

    Groucho’s duck descends with the magic word.

    Mencken’s little essay on “The Anglo-Saxons” is also pertinent.

  75. Scalia–Sicilian? Poor chap. Mr. Capone was Neapolitan in origin, was he not?

  76. Mazzei was born Filippo Mazzei in Poggio a Caiano, Grand Duchy of Tuscany, Italy. He studied medicine in Florence and practiced it in Italy and the Middle East for several years before moving to London in 1755 to take up a mercantile career as an importer. While in London he met the Americans Benjamin Franklin and Thomas Adams of Virginia. They convinced him to undertake his next venture.

    In 1773 he led a group of Italians who came to Virginia to introduce the cultivation of vineyards, olives, and other Mediterranean fruits. Mazzei became a neighbor and friend of Thomas Jefferson. Mazzei and Jefferson started what became the first commercial vineyard in the Commonwealth of Virginia. They shared an interest in politics and libertarian values, and maintained an active correspondence for the rest Mazzei’s life. In 1779 Mazzei returned to Italy as a secret agent for the state of Virginia. He purchased and shipped arms to them until 1783.

    After briefly visiting the United States again in 1785, Mazzei travelled throughout Europe promoting Republican ideals. He wrote a political history of the American Revolution, “Recherches historiques et politiques sur les Etats-Unis de l’Amerique septentrionale”, and published it in Paris in 1788. After its publication Mazzei became an unofficial roving ambassador in Europe for American ideas and institutions.

    While in Polish-Lithuanian Commonwealth he became attached as a Privy Councilor at the court of King Stanislaus II. There he became acquainted with Polish liberal and constitutional thought, like the works of Wawrzyniec Grzymała Goślicki and ideas of Golden Freedoms and Great Sejm. Poniatowski appointed him as Polish representative in Paris, where he again met Jefferson.[3]

    After Poland was partitioned between Russia and Prussia in 1795 Mazzei, along with the rest of the court, was given a pension by the Russian crown. He later spent more time in France and became active in the politics of the French Revolution under the Directorate. When Napoleon overthrew that government Mazzei returned to Pisa, Italy. He died there in 1816.

    After his death the remainder of his family returned to the United States at the urging of Thomas Jefferson. They settled in Massachusetts and Virginia. Mazzei’s daughter married the nephew of John Adams….”

    [wikipedia]

    Merely by the way, if While England Slept and his butchery of German in Berlin were not enough, what John F. Kennedy–or his ghost writers–did to Mazzei is clear sign of his own, and the American pseudo-elite’s, utter cultural and political bankruptcy.

  77. Nr. Paul? Nr. Paul–have anything even mildly intelligent on the subject of
    “liberty” to grace us all with?

    No, then why don’t you don’t your goddamned duty as a Congressman and get foursquare behind impeachment of Cheney NOW?

  78. corr. “Mr. Paul”.

  79. Mr. Paul? Mr. Paul–have anything even mildly intelligent on the subject of
    “liberty” to grace us all with?

    No, then why don’t you do your goddamned duty as a Congressman and get foursquare behind impeachment of Cheney NOW?

  80. This is directly contrary to what Mr. Paul said at the time of Clinton’s impeachment.

    Impeachment constitutionally is a simple process.

    How to phrase it in the most polite manner possible–Mr. Paul, you are a first class jive-ass on the whole subject of impeachment nowadays.

  81. Scalia’s claim that torture is not prohibited by the Constitution is pure bunk. Scalia agrees that torture as “punishment” is unconstitutional, but claims that torture to get information is not “punishment” and thus not unconstitutional. However, torture is “punishment” for exercizing your 5th Amendment right to remain silent.

    Scalia’s narrow view of “punishment” should be rejected by every American.

  82. Geezus, pretty soon you folks will be talking about the whole US Constitution as something more than a dead letter. Never underestimate the enemy. Fifth Amendment? Fifth Amendment? Oh that:

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    Any one care to make any predictions as to what this might look like as–hint, hint–caponata alla Siciliana or Kimchi John Choon Yoo?

  83. Yankee Doodle went to town,
    A-Riding on a pony;
    He stuck a feather in his hat,
    And called it macaroni.

    Yankee Doodle, keep it up,
    Yankee Doodle dandy;
    Mind the music and the step,
    And with the girls be handy….

    Macaroni? Where did macaroni come in? Hint: it almost certainly had nothing to do with any actual pasta served in so-called “Macaroni Clubs”.

  84. I think Scalia needs an English teacher.

    pun·ish (pnsh)
    v. pun·ished, pun·ish·ing, pun·ish·es
    v.tr.
    1. To subject to a penalty for an offense, sin, or fault.
    2. To inflict a penalty for (an offense).
    3. To handle roughly; hurt: My boots were punished by our long trek through the desert.

  85. (4) To pun in a cruel and unusual manner, inflicting pain.

  86. “It’s a pun!” Al Capone added in an offended tone, and everybody laughed, “You can get much further with a kind word and a pun than you can with a kind word alone.”

  87. CLERK: Sir, I thank God, I have been so well brought up
    that I can write my name.

    ALL: He hath confessed: away with him! he’s a villain
    and a traitor.

    CADE: Away with him, I say! hang him with his pen and
    ink-horn about his neck….

    [WS]

  88. Not bad, not bad–Al Capone au pays des merveilles?

  89. “C’est un jeu de mots!”, dit Al Capone.

    Et tout le monde eclata de rire.

  90. “While some may talk about whether or not an offense is ‘impeachable,’ that is only so much political rhetoric. The Constitution only specifies that Congress can impeach a president for ‘high crimes’ and ‘misdemeanors,’ but the definitions of those words are left to Congress to determine-anything a sufficient number of Members of Congress find offensive can be cause for impeachment….”

    [Ron Paul September 28, 1998]

  91. Scalia only reads the part of the dictionary that agrees with him, much the same as his readings of the Constitution…….

    American Heritage Dictionary pun·ish·ment (pÅ­n’Ä­sh-mÉ™nt)
    n.
    1
    A The act or an instance of punishing.
    B The condition of being punished.
    2 A penalty imposed for wrongdoing: “The severity of the punishment must . . . be in keeping with the kind of obligation which has been violated” (Simone Weil).
    3 Rough handling; mistreatment: These old skis have taken a lot of punishment over the years.

    Note Line 3
    Nuff said?

    AS for Leslie Stall, god she’s a bore. A world class creampuff pitcher.

  92. The best way to get people like Scalia to admit the truth is to perform the interrogation technique on them. In fact, no Judge should ever rule or opine that something is not torture unless he first agrees to personally experience the technique himself. After experiencing the interrogation himself, he can then make his ruling or mutter his public opinion on it. Then, and only then, can we believe him.

  93. GOP guanxi. Duck-hunting with Cheney and the like.

    Lester Ness

  94. An impromptu strappado session in the interview studio ought not be hard to arrange.

  95. The US Congress is more servile and corrupt than the People’s Consultative Congress of China.

  96. He wrote what his profs wanted to hear in the essays.

  97. Total Depravity!

  98. [...] Supreme Court Justice Scalia — one of the five Supreme Court Justices who appointed Bush in the 2000 presidential election, also known as Mr. “Get over it” — is now trying to say that torture is not punishment because torture is not meant to punish, only to elicit information, and he says his view is correct. [...]

  99. [...] ABC Report: Bush’s ‘Principal’ Advisers OK’d Torture, and Scalia: ‘Torture Is Not Punishment’ [...]

  100. re: class-clown sophistry by scalia in defiance of the dignity and obligation of the office: in the majority opinion authorizing suspension of the florida recount, scalia admits there is no constitutional justification for federal interference in state voting protocols – the only mandate is that the election be held on the same day throughout the union – and he cites “irreparable damage” as the actionable issue for supreme court interference. the irreparable damage he cites is that dubya would not be elected. implicit acknowledgement that the supreme court is defying the will of the people. impeach the agenda-driven bastard. let him tell his jokes in the nightclub, not on the dais of the highest court in the land, commissioned to protect constitutional principles, rather than to spin them in the service of his arrogant and blatant partisan bias.

  101. “macaroni” was a nickname for a fashion fad of the day in london – florid and colorful, (the name suggests an italian influence on the style) – haute couture – and the line is derisive of the stupid parochial yankee who thinks he can achieve the height of fashion by sticking a feather in his hat.

  102. Maybe it's time to use synonyms for words: 'terorrism', 'law enforcement' and etc.
    It doesn't help us to get on top of this situation!