On Sunday, I caught the interview with Justice Antonin Scalia on Sixty Minutes. I was particularly bemused by the Justice’s discussion of whether torture — say, of the detainees at Guantanamo — might violate the ban against “cruel and unusual punishment” in the Eighth Amendment.

Scalia started off cleanly. He is not in favor of torture, though he noted that definitions of what constitutes torture could vary from person to person. Fair enough. Let’s assume, though, that there is a class of conduct that would be defined as torture by all non-sociopathic personalities.
Then the Justice grew pensive. If a person is tortured to make them talk, is that really “punishment”? Isn’t punishment, he wondered, an action taken n retribution for some kind of offense? So maybe torture in the course of an intelligence interrogation would not be covered by the Eighth Amendment at all?
This is vintage Scalia. It involves a linear thought process of superficial plausibility, which carries within it a fundamental error of significant moral obtuseness.
So let’s look at the Eighth Amendment itself, which states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” All of these limitations apply to formal judicial procedures (bail, fines) and not to some action taken by a military force during an interrogation. Point to Justice Scalia. 15-Love.
The dictionaries I have consulted (Oxford English, Merriam-Webster’s Collegiate, and Dictionary.com) offer several definitions for “punish” and “punishment,” and in each source the first definition involves something like the “imposition of a penalty for an offense.” Point to Justice Scalia. 30-Love.
But each of these sources also includes a further definition that identifies “punish” or “punishment” as the act of inflicting a beating, or injury, or loss of some sort. Point to those being tortured. 30-15.
Moreover, in a point that CBS interviewer Leslie Stahl struggled to articulate, the subject of violent interrogation is, in fact, absorbing an undeniable “penalty” for one of several conditions: (i) being a bad person in league with other bad people, or (ii) knowing bad people, or (iii) being in the wrong place at the wrong time, or (iv) somehow exciting the suspicions of the authorities. This penalty is not inflicted after ordinary judicial process, but it certainly is exacted. If none of those conditions is present, no penalty is exacted. Point to those being tortured. 30-30.
In addition, the Justice’s view of “punishment” is entirely one-sided — that is, viewed from the perspective of the person dishing out the punishment. Consequently, this punisher-vantage-point ignores half of the interrogation equation. The punisher may not think he is inflicting “punishment” since no judicial penalty is involved; the individual absorbing the blows, I am quite certain, views the process as punishment. Point to those being tortured. 40-30.
Finally, Justice Scalia’s analysis assumes perfect precision in the language of the Constitution — that “punishment” was selected for the Eighth Amendment with multiple dictionaries at hand, and reflects a unanimous meeting of the minds among all of the state legislators who ratified the provision. I recently wrote about James Madison’s wonderful description in Federalist No. 37 of how clumsy a tool language is for saying what one means.
Justice Scalia’s analysis of “punishment” assumes a narrow, perfect meaning and intention for language; that assumption is both unrealistic and ultimately distorting. As John Marshall wrote in McCulloch v. Maryland (1819): ‘We must never forget that it is a Constitution we are expounding…intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs’ ” That essential point is entirely lost by crabbed and persnickety definitional games. The purpose of the Eighth Amendment is to prevent agents of the government from beating the tar out of ordinary people when conducting investigations and prosecutions.
And, of course, I have not begun to address whether the application of torture is consistent with the guarantee of due process of law.
Point, game, set, and match to those being tortured.