Scalia: Constitution does NOT outlaw torture

Yep Scalia is what he is.....

Of course the fact that Scalia can't tell us what is or isn't torture isn't a big surprise ot me.

What's interesting is that Scalia infers that torture reveals reliable information, which by most accounts is a false assumption.
 
A justice today who uses the constitution to rationalize torture is no different than justices of the past who used it to rationalize slavery.

Torture, like slavery, is a violation of fundamental human rights. It's a right that shouldn't have to be enumerated, but, apparently it might need to be.
 
He is brilliant to be sure. But he has often made himself irrlevant for most of his career on the Court because his kooky, although brilliant, opinions.
 
First, that's not what he's saying. He's saying that there is no 8th Am. constitutional jurisprudence that speak to whether torture is unconstitutional.

Second, I don't agree with hardly a thing the guy writes in either dicta or in his holdings, but there's no denying that he is a singularly brilliant legal mind.

Third, he has remained consistent in his legal reasoning for the entirety of his career up until recently. There is now somewhat of a tinge of eisegesis from the man (forcing a certain outcome from a predetermined position....reaching a conclusion first and finding the facts necessary to support the conclusion rather than vice-versa).

Of late, however, a few of his more noteworthy opinions are at odds with his earlier opinions, as if he's trying to be the counter-voice to Kennedy by sheer power of the written word.

But the man is a very powerful intellect. Even thought I don't agree with his legal methodology, his legal assumptions, his legal reasoning and his holdings, there is no denying that we are all very fortunate to have him on the Court, and are a better people because of him.
 
You have to respect Scalia's mind. He's a brilliant man. I disagree with him almost every time I read something from him, but he can analyze the law like few can.

That said, he also has a very strict, almost vengeful side to him. To say the Constitution has no provision about torture may technically be true, but it violates the spirit of the document, IMHO.
 
Iconoclast, as a lawyer, you should know better than to take a quote from a BBC hit piece and an out of context quote for authority...
 
unwise by what standard? He essentially requires more from the document than the liberal justices and as KE noted, he doesn't analyze based on an outcome in mind, which can generally be seen a mile away in certain opinions. In fact, it could be argued that he's one of the most impartial justices we've ever had on the bench. His philosophy doesn't make his decisions unwise and the fact that after a hundred plus years of holdings he is able to articulate arguments away from an ever-expanding interpretation is pretty remarkable. It's not unwise, its just a different view of how the document is to be interpreted and he by and large plays by those rules.
 
if you think Scalia is bad, what do you think of Ginsburg who is the only justice I can think of that has used international law, of all things, to assist in making decisions regarding the U. S. Constitution..
 
For those of you who posted you disagree with Scalia on every issue or almost every issue how do you feel about this ( fromjk the link in the OP)
"He has made many decisions in favour of the rights of criminal defendants, and has ruled that burning the US flag is legal, although he adds that if he were king, he would "throw flag burners in jail".
 
general, no justice on this court has EVER used "international law" as the basis or foundation for a certain holding. None.

First, there's no such thing as "international law." Second, if they did it would have to be concurred by 4 additional justices....the author of the opinion is merely expressing the opinion of the majority simply because its their turn to write the opinion (they do it round robin). If a judge is concurring but differs in their reasoning or logic, they are free to write their own opinion, but as a concurrent opinion it holds no legal weight unless their is law made on a plurality outcome where in such a case all the opinions are moot and carry no legal weight other than in the ruling. So any grand conspiracy to turn us into the UN simply isn't there.

What our Court does do and has done since its inception, however, is repeatedly reference the law in foreign jurisdictions to show the reasoning behind a particular holding.

Care to guess which justice has most often used the law in foreign jurisdictions as a means of explaining their position?

Yep, Scalia.
 
ARE Justices using " international laws" or are they studying them as one way to reach a decision?

If a supreme cited a law or decision from europe as a basis for their own decision I would want that justice gone somehow
But if in the course of making a decision they researched similar cases and decisions around the free world I think that is wise
 
making an issue out of a Justice looking to other jurisdictions for logical and analytical support is a distraction. It's not a big deal. Every state Supreme Court does it, the US Supreme Court does it, and in each case, its not a surrender to those authorities. Heck, due process decisions (at least when I was in law school), in many cases referred to actions violating due process if those actions violated the sensibilities of english speaking civilized societies (or something to that effect). Our common law system of government and the principles we began with and have continued to turn back to time and time again are founded in English law. The examples can go on and on. Justices are looking to other respected jurisdictions with shared values for insight, that's it. This is a non-issue.
 
Well, horn, that would mean that 99% of the barristers who sit on appellate courts should be run. As far as the high court goes, I'll sit back and enjoy your one-man campaign to run Scalia, Thomas, et al. while spitting on the graves of Reinquist, O.W. Holmes, etc. given that every, single one of them has cited legal opinions in foreign jurisdictions.

It's silly as **** to profess a desire to be the leader of the world community and yet not acknowledge that the world does have a separate body of jurisprudence.

This is one of those issues where a whole helluva lot of people have an opinion about how should be w/o having a ******* clue about how things actually work.
 
Look, I have no doubt Scalia is exceptionally bright in terms of straight up legal analysis. However, when said intellect leads to morally reprehensible conclusions, do not get upset when withhold praise for such "thinking". I am no fan of Posner or the whole Chicago Law and Economics school; but that does not mean that I do not respect their viewpoint or concusions since they do not violate the essence of our Constitution.

The Nazi lawyers who drafted the Nuremberg laws were incredibly thorough and detailed in determining Jewish blood. You won't see anyone praise their excellent draftsmanship since their result is reprehensible.
 
tropheus
I agree but the first time I see something about being forced to wear burqas or islamic divorce in an opnion I will be sending hams and pork chops to the supremes
 
general, no justice on this court has EVER used "international law" as the basis or foundation for a certain holding. None.

First, there's no such thing as "international law."
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I took a class called international law in law school, took classes on international trade, finance, etc. delt with international governing bodies for handling disputes between foreign governments, etc...but i see your point. as for ginsburg, on March 1, 2005, in the case of Roper v. Simmons, the Supreme Court (in an opinion written by Justice Anthony Kennedy) ruled in a 5-4 decision that the Constitution forbids executing convicts who committed their crimes before turning 18. In addition to the fact that most states now prohibit executions in such cases, the majority opinion reasoned that the United States was increasingly out of step with the world by allowing minors to be executed, saying "the United States now stands alone in a world that has turned its face against the juvenile death penalty."

Justice Antonin Scalia rejected that approach with strident criticism, saying that the justices' personal opinions and the opinions of "like-minded foreigners" should not be given a role in helping interpret the Constitution.

Ginsburg rejected that argument in a speech given about one month after Roper. "Judges in the United States are free to consult all manner of commentary," she said to several hundred lawyers, scholars, and other members of the American Society of International Law. If a law review article by a professor is a suitable citation, she asked, why not a well reasoned opinion by foreign jurist? Fears about relying too heavily on world opinion "should not lead us to abandon the effort to learn what we can from the experience and good thinking foreign sources may convey," Ginsburg told the audience.

In response to Roper and other recent decisions, several Republicans in the U.S. House of Representatives introduced a resolution declaring that the "meaning of the Constitution of the United States should not be based on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws or pronouncements inform an understanding of the original meaning of the Constitution of the United States." A similar resolution was introduced in the U.S. Senate. In her speech, Ginsburg criticized the resolutions.

She reached the correct conclusion in her case, but she went about it wrong.
 
general35: US courts have referenced foreign decisions, especially those whose system like ours derived from English common law for hundreds of years. This isn't anything new
 
KE
If you are addressing me did you actually read my post?
You posted ."Well, horn, that would mean that 99% of the barristers who sit on appellate courts should be run."

I was not sure what this meant, run where ?
that barristers who sit on appellate courts are citing international laws when issuing their judgements? I hope not
I will repeat
I think it is wise to research any and all decisions including any similar from other free nations But the final decision must be based on US law or our constitution whichever is applicable
 
US courts have referenced foreign decisions, especially those whose system like ours derived from English common law for hundreds of years. This isn't anything new
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I agree it has happened, i just disagree with the practice.
 
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