Scalia and Cruel and Unusual Interrogation

In keeping with his recent habit of defiant ideological gestures, Justice Antonin Scalia has weighed in on the torture debate with an angry defense of “enhanced interrogation” as both constitutional and as within the American moral consensus, as opposed to that of namby-pamby “European liberals.” Brother Benen has published a transcript of the interview in which Scalia offered his pithy observations, and Steve’s troubled by the idea that while torture might violate the Eighth Amendment’s ban on “cruel and unusual punishment” if administered to someone who has already been convicted of a crime, it’s hunky dory to Scalia if it’s administered to mere suspects:

As for his argument on the merits, I’m struck by the “punishment” distinction Scalia seems eager to emphasize. In the justice’s mind, if the United States tortures someone convicted of a crime, that’s unconstitutional, but if officials commit torture of a prisoner who’s received no trial, the Constitution is indifferent to the situation. What an odd perspective.

Yeah, but it’s not that unusual for a “textualist” jurist who only uses moral logic to interpret the broader meaning of the Constitution when it happens to coincide with his own ideology.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.