- torture is not punishment when you are trying to get information out of someone
- Fetuses are not persons within the meaning of the Equal Protection Clause. Persons means people who can walk around. Pregnant women shouldn't be counted twice.
- He has 9 kids and 28 grandkids. He was an only child. Why? They practiced their version of "Vatican Roulette."
ADDED: Here are the transcript and the video — part 1 and part 2 — thanks to How Appealing.
पोस्ट्स
६६ टिप्पण्या:
Catastrophe. My DVD recorder failed me. I need TiVo. :(
Does CBS have a 60 Minutes page on Youtube?
Or, if not, if someone finds a Torrent link, many people would be grateful...thanks!
Cheers,
Victoria
Ink-lay is ong-wray
oops. fixed.
Anx-thay.
Victoria, if hi-tech solutions fail you, I have a VHS version that I could digitize. But I'm sure it'll be on their website. It was nice, but there wasn't a lot of new stuff for "Scalia Junkies."
He rather fumbled the question about the 8th Amendment and torture in (I assume) an effort to avoid shop talk. The reason torture doesn't violate the 8th amendment is simple enough: because it usually lacks punitive intent. Torture done to punish violates the 8th amendment; torturing someone for information may be immoral, may be illegal, may be all manner of things, but if it isn't done with punitive intent, it's beyond the ken of the Eighth Amendment.
I come from a family of 9, Irish Catholic. Every family I know had at least that many. He was an only child? Vatican roulette (rhythm)? No way!
Pat, he made the "Vatican Roulette" comment in relation to why he and his wife had nine children, not in relation to why he's an only child. That's not clear from Jeralyn's post, but that's what was said.
Scalia came off very well. Salt of the Earth. Regardless of your legal perspective, he should be respected (as he is by Ruth Bader Ginsburg).
Simon,
Jeralyn lies about lots of things, particularly the substance of an argument made by someone she disagrees with.
Simon,
Why haven't you been on bloggingheads.tv yet?
Impressions: Regular guy, salt of the Earth New Yorker, but blessed with huge brains and drive. Less smart or in a different era when Sicilians were limited to trades, Scalia woukd still be a standout.
Depressed? Having to deal with the vapid legislator vs. real Justice O'Connor - and treacherous Kennedy and the Souter letdown would make anyone depressed. Now that semi-senile O'Connor is gone and he is dealing with true judicial intellects again (as shaky as Souter and Kennedy are), things are better..
The difference between O'Connor and Breyr and Ginsburg is Scalia believes the latter two are well-meaning intellects warranting respect.
Mort: I don't read TalkLeft as much as I'd like to, to tell the truth, so I've not noticed. I do try to read it periodically, but I've never found the time to really pay attention for a sustained period. Perhaps I've just been lucky in that when I've been looking I've not see anything that made me angry. Like Yglesias' blog, it seemed well-written and enjoyable, just wrong.
As to BHTV: I'm not as handsome as Yglesias, as droll as Bob, or as sharp (or telegenic) as Ann. Besides, I've done vlogs before and they're very stressful because it's so easy to make a slip of the tongue, or to go blank in the moment. And besides, I love the written word; I love writing and thinking about how to argue a point in writing, and I prefer to have the time to think and research and to think about how to phrase things well. BHTV is great to watch, but it's not a medium that I think I'd do well in. I'd consider it if I was asked, but I wouldn't exactly jump at the chance.
"Persons means people who can walk around"
I come from a mother who is now in a wheel chair. Her neurons are still sparking but her legs no longer function. Guess I'll call her first thing in the morning to try and help her understand her recent loss of personhood and to reassure her that I'll do all I can to see to it that none of my eager-to-inherit siblings successfully abort her.
Meade, the point he's making is that the society that ratified the 14th amendment did not think of fœtuses as "persons," so unless you want to adopt an evolutionary theory of the Constitution, if can't be argued that the Constitution forbids abortion.
I don't know or understand much of this lawyer stuff. As a non-lawyer, it is like inside baseball for a soccer fan.
But Scalia impresses me as giant intelllect with a touch of the common man combined with good biting sense of humor. I bet his nine kids had much fun growing up with him as a their father.
Thanks, Simon. I'll explain that to Mom. It will reassure her to know that the 14th Amendment can be, you know... reopened or set aside or amended. Or whatever it is lawyers do to The Law.
Say, I don't suppose I could hire you to call my brothers and sisters for me?
Just saw the CBS video (thanks for the link, Ann!). A few thoughts.
- I love the guy. LOVE HIM. I want to have his 10th baby.
- Ruth Buzzi on an elephant!!
- Like all old Italian guys, he has a full head of hair, rosy cheeks, and looks about two decades younger than he is. To put it into context, Senator McCain is his exact contemporary, both born in 1936! Yes, of course, the latter was tortured in Vietnam, but come on now. Sitting on the Supreme Court for 22 years ain't no day at Coney Island either. Considering, as Stahl pointed out to his face, some people consider him "evil" and that he's the most hated SCOTUS Justice probably ever, he's bearing up nicely.
- Leslie Stahl was every bit as an intellectual lightweight as I recall her to be. She liked him in spite of herself; in fact, you can say he charmed the pants off of her. But her job was to pin him down, and she didn't even come close, even though she tried, bless her. Not even in the question of torture, did she lay a glove on him.
- He is principled, in the fullest sense of the word. He has a personal philosophy made of concrete, but he doesn't demonise people who he disagrees with -- which is the GREATEST tragedy of the post-modern era. To people who hold opposite views, it seems you can't respect your worthy oppo one scintilla, since if you do, you give him or her some kind of moral high ground which cannot stand. Balderdash.
- He indirectly slapped the Kennedys in the face. By noting that every Catholic family of his size (9 kids) who doesn't give at least one son to the Church, they're in "big trouble". Well, I guess Bobby Kennedy came close to priesthood, but didn't bite the bullet...mind you, HE had 11 kids, so maybe that would've been a bad idea. :P
(Side note: Another of his kids is a major in the Army. So much for that idea lefties have that it's easy to send men and women to "die in Iraq" since they don't have a vested interest)
- Isn't it a shame that a man like this can NEVER be president? He's too outspoken, too caustic, too downright HUMAN to be a politician. He reminds one of Churchill, with the same bulldog tenacity, and self-belief of his own talents, which are considerable.
- As someone who is personally anti-abortion, but pragmatically accepts whatever is the law of the land, I was dismayed, but strangely reassured by his conviction that a human being is anyone who can walk around.
People misunderstand.
The greatest problem with public life today is that everyone is afraid to speak up and say "THIS IS WHAT I BELIEVE". Not "this is my opinion", which carries less personal responsibility since it can be changed.
I may not agree with Nino Scalia's definition of a human being, but by golly, at least I know where I stand with him. God bless him.
Cheers,
Victoria
victoria said...
"I may not agree with Nino Scalia's definition of a human being, but by golly, at least I know where I stand with him."
That's not his point. He didn't say that he doesn't consider the unborn to be persons, he said (and says) that the society that ratified the 14th Amendment didn't consider the unborn to be persons, and originalism requires him to enforce the latter, not the former.
That's not his point.
In my hasty rhetorical flourish, I forgot to:
Thank you VERY MUCH for offering the VHS version of this interview! Thank you, Simon. Mwah! :)
And also, yes, I didn't mean that's what he personally thought was a human being, but that clearly that is what is meant in the Constitution.
I also agree with him that if you want to legalise abortion, that it should be like any other law -- passed by legislators, not "allowed" by justices.
Lastly, may I mention that I was favourably impressed by Justice Ginzburg. He strikes me as the type of person who must've thought very little of Sandra Day O'Connor's intellectual talents. But he clearly respects the former. That's as good a character reference as one can get, for me.
Cheers,
Victoria
My sister's former roommate had Scalia as a professor right before his appointment, and she apparently impressed him (she's equally plainspoken). "See you in Washington," he told her. Of course, she also now thinks Russell Crowe speaks to her telepathically.
He reminds one of Churchill, with the same bulldog tenacity, and self-belief of his own talents, which are considerable.
America had its equivalent dog, the Pit Bull, in WWI posters.
Now the media can't deal with the conceptual complexity that arises from granting that gentleness depends on strength.
There are no gentle worms.
Gentlewoman is still a PC construct.
Gentleman still captures the idea a little.
I really can't believe he's 72
At least we have Supreme Court justices who were born in the 1930s...
Gentlewoman is still a PC construct.
No, that rank has been around a while. I know it's in Trollope, willing to bet it's in Shakespeare (but what isn't?).
Salt of the Earth.
My opinion is that salt of the Earth people are grunts who don't sit on the highest court.
Ah, Simon, that makes much more sense (Vatican Roulette). I have hundreds of cousins too, all as a result of that practice.
Scalia blithely said "torture" could not be easily defined, yet he seems sure his definition of "punishment" is correct, that physical abuse or deprivation of one's freedom is "punishment" ONLY when it is retributive for an offense deemed to have been committed.
So, as Scalia has it, the Constitution prohibits the state from abusing someone if they have been convicted of a crime, but a person in detention, convicted of no crime, having faced no evidence or witnesses against him in court to argue his case, perhaps not even charged, may be subjected to brute force--if no statute forbids it--because it is "not punishment" (sic).
That means we're ALL at risk to be tortured.
What a putz.
Torture - as described in the Leslie Stahl question - is NOT prohibited by the Eighth Amendment's prohibition of cruel and unusual punishment. "Punishment" requires conviction. A detainee has not been convicted, so the clause is not implicated.
He told her as much and Stahl just didn't get it.
She asked the wrong question and used the wrong Constitutional provision to address the torture issue.
Gentilewoman was also in Fiddler on the Roof it that counts for anything.
Robert Cook, you're confusing what is constitutional with what is legal. Two different questions. Torture is illegal, and might even be unconstitutional under some other provision (e.g. due process) but it's not banned by the 8th amendment, which deals with criminal law.
Before you call your intellectual superior a "putz" be sure you know what you are talking about.
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Where does this specify that it applies only to persons convicted of crimes, or to the broader "criminal law," which seems a meaningless distinction? Where does it say "punishment requires conviction?"
This has to do with broad prohibitions on the state applying arbitrary force of power against any person. The framers saw the brute force of the King's soldiers applied against the colonists, and the Bill of Rights, taken amendment by amendment and in toto can only be seen as a wall against such state power and as a shield to all persons who might otherwise be victim to the unchecked might of the state.
Scalia is playing sophmoric semantic games in order to undo this crucial provision of the Constitution, and on the basis of this, I question his vaunted intellect--or, really, his intellectual integrity--and...I say he's putz. And, to quote his compelling argument, "I'm right!"
Robert Cook said...
"Where does [the 8th Amendment] specify that it applies only to persons convicted of crimes, or to the broader 'criminal law,' which seems a meaningless distinction? Where does it say 'punishment requires conviction?'"
You're missing the point. For something to constitute punishment, it has to be done with punitive intent. Cf. Richman v. Sheahan, 2008 U.S. App. Lexis 200 (7th Cir. Jan. 17 2008). Torture can violate the cruel and unusual punishments, to be sure; indeed, that a punishment is torturous is a strong indicator that it is cruel and unusual, cf. Baze v. Rees, 2008 WL 1733259 (SCOTUS Apr 16 2008). But when torture is done to extract information (as I explained above, comment, 8:54 PM), rather than to punish, it doesn't fall afoul of the 8th Amendment. Thus, a showing of punitive intent is an essential element of any claim under that clause.
Simon, I find it fascinating that Mr. Cook felt he could derive the scope of the 8th amendment by looking at its text. Fascinating approach, wouldn't you say?
Scalia would be proud.
Though it helps to recognize that a "fine" and a "punishment" are both items imposed punitively, i.e. for crimes. Mr. Cook, I take it English IS your native tongue?
Simon,
With all due respect:
Baloney.
As to the comment that "fines" and "punishment" are both items imposed "punitively," (uh, isn't that a tautology?), the amendment also prohibits excessive bail, which does not apply after conviction. The amendment cannot be seen as being applicable only to convicted persons; it applies to all who are held by the state or who otherwise must face its power.
Last time I looked, Mr. Cook, the word "bail" applied only in the context of criminal process. At least in this country, and on this planet.
If you know some other use of the term "bail" that makes sense in the context of the Eighth Amendment I'd be interested to hear it. Until then, I'll repeat what I said above: if you want to call your intellectual superior a putz it helps to know what you're talking about.
This has to do with broad prohibitions on the state applying arbitrary force of power against any person.
That may be what you want it to say, but that's not what it says. Those are two different things.
yours/
peter.
So far, I haven't seen that Scalia has proved he's my intellectual superior, so I have no hesitation calling him a putz.
I haven't seen that Scalia has proved he's my intellectual superior
He'd probably write that clause differently. The bar is low.
Robert,
All right, we'll try this the long way around. First, do you agree with at least this much: that the cruel and unusual punishments clause, ex vi termini, prohibits only punishments that are cruel and unusual?
boldface said...
"Simon, I find it fascinating that Mr. Cook felt he could derive the scope of the 8th amendment by looking at its text. Fascinating approach, wouldn't you say? ¶ Scalia would be proud."
Well, I'll say at least that he's thinking on the right lines. :)
Simon,
I assert that the "cruel and unusual punishments" clause applies to any treatment of any person in the power of the state. I don't subscribe to the politically-driven idea that "punishment" only refers to treatment meted out to convicted persons, that is, in response to ill-deeds proven or admitted to. I say it applies to any treatment one may be subjected to from the moment one is taken into custody for any reason by the state.
Mr. Cook - any authority for this opinion of yours? Is it based on anything? Or is that simply your ex cathedra pronouncement?
That actually reminds me: the only non-criminal area where I can think of the 8th amendment being invoked is as it relates to punitive damages. (Punitive damages are, of course - as the name suggests - punitive). I don't recall whether the Gore and Campbell cases went off on due process or 8th amendment grounds, but what I do remember is that Scalia thinks the constitution has nothing to say about punitive damages and that it's a matter of state law. In other words, 8th amendment inapplicable. He dissented in those cases - he was OK with the corporations getting socked and socked good.
Boldface said: "Mr. Cook - any authority for this opinion of yours? Is it based on anything? Or is that simply your ex cathedra pronouncement?
3:56 PM"
How about the Eighth Amendment itself? It offers no exceptions for its proscription on cruel and unusual punishments, no stipulations as to when it does or doesn't apply. Such limits on its protections have been created by, ahem, "originalists" (sic) such as Scalia, and authoritarians who chafe at any limits to state power.
the eighth amendment itself? really? you mean you can read the words and that the construction that you prefer, without reference to its meaning when ratified or its meaning as applied through precedent, is what should control?
What you just described is called "making it up." As I thought.
Robert,
Help me understand your point: Are you contending that "punishment" means "any treatment one may be subjected to from the moment one is taken into custody for any reason by the state"? Or, do you accept the ordinary meaning of the the word "punishments," but contend that it doesn't apply because, in your view, the scope of treatment to which one may be subjected by the state is not limited by that clause to actions undertaken with punitive intent?
Boldface - as you mention, those cases and the subsequent Phillip Morris case orbit the due process clauses rather than the Eighth Amendment.
America had its equivalent dog, the Pit Bull, in WWI posters.
Yes indeed. Scroll down to the second
picture.
Simon,
What do you mean when you say, "the ordinary meaning of the word 'punishments?'"
I mean exactly what I said: any treatment meted out by the state to any person in its custody must adhere to the prohibition against "cruel and unusual punishments." A person who has been picked up as a suspect in a crime or as a "hostile witness" who is believed to have--or who may in actuality have--information about a crime, is protected from being slapped, punched, beaten up, on up the line to more egregious forms of torture.
Any person in state custody must be treated properly at all times, with no expression of violence of any kind, except where he may initate violence against other prisoners or authorities such that force must be applied to subdue him.
I am astonished that anyone would think a person who has not been convicted of a crime is not protected by the Eighth Amendment against being tortured by the state. I have never heard such a notion put forth before Scalia's statements, first published in the press a week or two ago. That others agree with his view is doubly astonishing to me, and appalling, and establishes that the most plainly worded statements can be twisted to mean anything one desires, simply through semantic jiu-jitsu.
Robert, you're evading the question. I didn't say anything about someone having been convicted ("I am astonished that anyone would think a person who has not been convicted of a crime is not protected by the Eighth Amendment"); read the Richman case that I cited above. There's no necessity for conviction for the state to act on convicts, only that it act with punitive intent. When I say the "ordinary" meaning of the word "punishment," I don't know how much clearer I can make it; when you punish someone, you do something to them in retribution for something they have done. If someone has an acute aversion to being yelled at and a cop - unaware of this aversion - yells at them during interrogation, they are not "punishing" the person, and the person has no 8th Amendment claim. But if the cop knows full well that they have such an afflication, and yells not to extract information but to punish and belittle the interogatee, that crosses the threshold, because it's being done with punitive intent.
Although you didn't answer the question directly, it seems to me that what you're saying is that the state is forbidden not only from inflicting cruel and unusual punishments, but from undertaking any kind of activity that might be claimed to be cruel and unusual. You might think you've answered this in your comment above saying that you rely on the 8th Amendment itself, but that won't do: the eighth amendment forbids cruel and unusual punishment, just as the Fifth Amendment requires due process of law; the terms of the amendment limit it. But in trying to argue that the limitation applies to a class of conduct where there is no punitive intent, you're effectively arguing for the deletion of the word "punishments," or worse yet, for the substitution in its place of "another word or words, more or less flexible and more or less restricted in meaning," Griswold v. Connecticut, 381 U.S. 479, 509 (1965) (Black, J., dissenting). And that, it seems to me, puts you (once again, thinking back to our discussion of treaties) in the unenviable position of having to cite some kind of authority for why an extremely well established canon of construction - in this case, the canon that every word should be given effect. What do you have?
"...when you punish someone, you do something to them in retribution for something they have done."
Says who?
I say punishment means any treatment meant to cause pain or discomfort or displeasure to another, whether in response to a provocative act--the "crime," if you will--or not.
Robert,
One thing to bear in mind is that the people allegedly being tortured are, more often than not, unlawful combatants under the Geneva Conventions. As such, they have a "right" to only one thing: a bullet in the head.
Another thing to bear in mind is that the "torture" that the morally-superior get all lathered up about barely counts as such. I wouldn't enjoy being waterboarded either, but no one suffers any long-term damage from it, unlike the Nazis' or the Communists' favorite techniques of whippings with rubber hoses, fingernail-pulling, and hog-tying people in painful, joint-damaging positions.
Choose your arguments and terminology more carefully if you want people to take your arguments seriously.
If anything, I don't like the federal (or is that "feral"?) Leviathan apparatus any more than you do, I think. But I do love my country enough to want its enemies DESTROYED. If some dubious characters have to endure some temporary discomfort to ensure that destruction, so be it.
Robert Cook said...
"I say punishment means any treatment meant to cause pain or discomfort or displeasure to another, whether in response to a provocative act--the 'crime,' if you will--or not."
Well, with all due respect, I think that's a novel and idiosyncratic redefinition of the word. Can you offer any cases that use the term that way?
Simon,
To the contrary, I find the idea that "punishment" refers only to actions taken against someone for something they have done--that is, as retribution for a wrong they have committed--to be surprising. People often suffer punishment for no reason: abuse between spouses or directed against children, for example. When a police officer takes someone into custody and beats him up--or, as in the case of Abner Louima in NYC, sticks a wooden handle up his rectum in the station bathroom--that's punishment. In Louima's case, in particular, it's cruel and unusual punishment, meted out by the agents of the state against a helpless citizen (who was never even charged with any wrongdoing). You may say such actions are those of rogue agents and do not represent state action; fair enough, I guess, but such behavior is common, and physical punishment is still being applied.
More to the point, we have now the state officially torturing detainees merely alleged to be terrorists; no evidence has been brought in court, no arguments heard, no sentences handed down, that render these men to be officially guilty, yet they are suffering very real physical abuse, planned in the White House. So far as we know, and so far as the law has determined, they have done nothing. They are being punished by the state for nothing.
I assert my view of the amendment's protections is hardly novel, but is the common sense and commonly held view.
Frankly, I find it staggering that Scalia and those who support his bizarrely narrow definition of "punishments" miss or ignore the implications of their position: that the framers feared abuse of government power so much they would enshrine in the Constitution a prohibition against cruel and unusual punishment, yet they would provide this protections only to convicted persons, while failing to provide the same Constitutional protection to those in state custody who have not been convicted of any wrong deeds.
First disclaimer: IANAL That said ...
"I say punishment means any treatment meant to cause pain or discomfort or displeasure to another"
Based upon this, in conjunction with your later comment, leads me to conclude that you are misappropriating the word "punishment" to mean "abuse". They are not synonymous, especially not in a legal usage.
I have always understood that the 8th Amendment specifically addressed what sort of punishments could be awarded by the courts, not as a prohibition against abusive practices in investigation or detention. Remember, at the time the 8th Amendment was written it was not uncommon for convicted criminals to be sentanced to branding, tattooing, floggings, prolonged exposures in the stocks (which often resulted in death or severe injury due to abuse by the citizenry) or worse for relatively minor offenses. This was most specifically a limit on the state's power over the convicted.
Beyond this, though, you have seemed to stumble upon what I see as a critical legal aspect of torture: intent. As I wrote almost three years ago, the law against torture (18USC2340) requires specific intent to cause severe pain or suffering. In other words, the fact that such injury happens is not, by itself, sufficient to demonstarte that torture occurred.
To extend Simon's yelling example, if a cop yells at someone and they have a heart attack the circumstances are distinctly different if the officer knew the individual had a condition and was liable to suffer physical effects from the stress than if he was unaware.
"More to the point, we have now the state officially torturing detainees merely alleged to be terrorists; no evidence has been brought in court, no arguments heard, no sentences handed down, that render these men to be officially guilty, yet they are suffering very real physical abuse, planned in the White House."
Please provide specific examples and documentation of the "very real physical abuse" to which you refer. For bonus points, reconcile these against 18CFR2340 to construct a persuasive argument these "abuses" do, in fact, meet the definition of torture.
I've heard these claims and cloth rending so loudly and often but it usually seems that folks are just repeating what they've read or been told with no independent rational or logical thought applied. The idea put forward of BushCo wringing their hands and cackling in an evil way as they plan torture in the White House are laughable, exept that there are apparently people like you that honestly feel this is an accurate characterization and not a political charactiture of the President as a stock villian from central casting.
"Based upon this, in conjunction with your later comment, leads me to conclude that you are misappropriating the word "punishment" to mean "abuse". They are not synonymous, especially not in a legal usage."
No, I don't mean "punishment" to mean "abuse." They are not strictly synonymous. "Punishment" may be appropriate, proportionate, temperate and just, or it may be abusive.
However, "cruel and unusual punishments" certainly includes "abuse."
I certainly do not agree that the framers would allow worse treatment--would neglect Constitutional protections--for those in custody who have not been charged or convicted than they would allow for those convicted of crimes. If they prohibit "cruel and unusual punishments" from being inflicted by the state on convicts, I assert we must read this prohibition as being even more emphatic on those for whom cause for punishment of any kind has not yet been determined. Yes, the amendment restricts the punishments a court may impose on a convict, but I insist this also restricts the treatment that may be applied against those pending trial, or who may simply be in custody for purposes of interrogation.
"I certainly do not agree that the framers would allow worse treatment--would neglect Constitutional protections--for those in custody"
Robert, the list of what the framers (formerly known as the "Founding Fathers" until someone decided the phrase was sexist despite the fact that the individuals being discussed were, you know, actual men) left out of the Constitution is exhaustive. Simply finding a part you think should be applicable to a specific circumstance and then fitting a definition of certain words ener before used in a Constitutional context to encompass your desires is, as Simon said, "making it up."
But then, I'm not making it up. As I say, I insist that the 8th Amendment prohibition against "cruel and unusual punishments" applies from the moment a person is taken into state custody. There is nothing in the language that refutes that reading. As I also said to Simon, I assert my reading is the common sense and commonly held view of the amendment, and I believe Scalia's (and apparently your) more restrictive view is the novel reading.
As the 9th and 10th amendments also point out, (particularly the 9th), the framers did not limit the people's rights or powers to just those specifically enumerated.
Robert Cook said...
"I insist that the 8th Amendment prohibition against 'cruel and unusual punishments' applies from the moment a person is taken into state custody."
Out of curiosity, what about a person not in state custody against whom the state directs force? For example, a cop on the beat stops someone on the street to ask them a question; there's no suggestion that the officer intended to detain, or had probable cause to arrest, he was just, you know, stopping him to show him a photo and ask if he'd seen the depicted person, which sometimes happens. The cop's a big, well-built guy -- Titus would do him -- and the kid's a lithe young man. Two scenarios on the foregoing facts. Scenario one: the kid is a smart alec and the cop tazes him in retaliation; scenario two: the kid becomes belligerent and physically aggressive, whereupon the cop tazes him to subdue the kid, even though it would be unusual (and might be thought unnecessary) for a cop of that build to use that level (or at least method) of force to subdue a belligerent of that build.
On those facts, the kid presumably has a tort claim, but does he have an Eighth Amendment claim in either of those scenarios? That is, if you're focussing on the actions of the state in the setting of state custody, when that context is removed, when the "victim" is not yet in custody, then do you think that the punitive intent vel non of an officer matter?
"There is nothing in the language that refutes that reading."
The word "punishment" and the canon of construction that requires us to give force to every word at minimum cuts very strongly against that reading, strongly enough that I think it refutes it. What do you do with a case like Wolfish v. Bell?
"As the 9th and 10th amendments also point out, (particularly the 9th), the framers did not limit the people's rights or powers to just those specifically enumerated."
True, but it does place the rights so protected beyond judicial enforcement absent positive enactment by an authorized legislative body, see Troxel et vir v. Granville, 530 U.S. 57, 91 (2000) (Scalia, J., dissenting) ("the Constitution's refusal to 'deny or disparage' other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges' list against laws duly enacted by the people"); Bork, The Tempting of America 183-5 (1990).
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