In response to a question about torture, Scalia says: "“[W]e have laws against torture but I don’t think the Constitution addressed torture, it addressed punishment. Which means punishment for crimes. … I’m not for [torture]. But I don’t think the Constitution says anything about it.”
The United States cribbed the 8th Amendment, which prevents cruel and unusual punishment, from the 1688 English Bill of Rights. Due in part to Oliver Cromwell, and in part to Elizabethan court politics, the English had come perilously close to routinizing torture. So, prior to the adoption of the 8th Amendment, what did legal commentators have to say on the subject of Torture and the English Bill of Rights?
Well, Blackstone said the following:
"The rack, or question, to extort a confession from criminals, is a practice of a different nature: this being only used to compel a man to put himself upon his trial; that being a species of trial in itself. And the trial by rack is utterly unknown to the law of England; though once when the dukes of Exeter and Suffolk, and other ministers of Henry VI, had laid a design to introduce the civil law into this kingdom as the rule of government, for a beginning thereof they erected a rack for torture; which was called in derision the duke of Exeter’s daughter, and still remains in the tower of London: where it was occasionally used as an engine of state, not of law, more than once in the reign of queen Elizabeth but when, upon the assassination of Villiers duke of Buckingham by Felton, it was proposed in the privy council to put the assassin to the rack, in order to discover his accomplices; the judges, being consulted, declared unanimously, to their own honour and the honour of the English law, that no such proceeding was allowable by the laws of England."
An absolute ban on torture preceded the Constitution. It was considered to have been a part of the English Bill of Rights. The Founding Fathers were aware of this. Scalia, of course, would prefer that this not be the case, so he can resort to facile textualism as a substitute for originalism.
To believe that the Constitution prohibits torture upon conviction but allows it before conviction (when one is presumed to be innocent) is simply perverse. Unless, that is, one doesn't really believe in the presumption of innocence and believes that anything that aids the prosecution is just fine...
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