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**asleepathewheel** · April 29, 2008, 20:21

Originally posted by Kuciwalker
Brown reversed the finding in Plessy (that segregation was consistent with the 14th Amendment because the tangible factors were equal, and therefore everyone had equal protection of the law) by finding that segregation was inherently unequal in its intangible effects. The meaning of the 14th Amendment wasn't changed.

That really isn't what "finding of fact" means when used in a legal context, even though it may be in fact, a fact.

**Kuciwalker** · April 29, 2008, 20:24

Well, that's the term Jack Balkin used, IIRC, in his book on Brown.

**Spiffor** · April 29, 2008, 20:30

Originally posted by Berzerker
Why? What % of the population today would support Jim Crow?

I don't know if Jim Crow was endorsed by the constitution, so this here post isn't about Jim Crow specifically, but more about constitutional anachronisms in general.

You guys in the US have very strong feelings about your constitution, which is much more fundamental to your political culture than in any other democracy.
It's quite startling, really: before posting on 'Poly, I'd never seen ordinary people having any passion about their constitution (despite studying poli-sci). And in my whole life, the only non-Americans whom I saw giving about as much importance to their constitution were law students...

Your constitution isn't merely the basis of your institutions as in most other countries. It's the very heart and soul of your political culture. Being written by the founding fathers sure adds to its prestige too.

As a result, things that are in the constitution tend to be enshrined in the US political culture. Many people appear to think "it's in the constitution, therefore it's good". Or more accurately, they appear to think "it's in the constitution, therefore it's untouchable, and I challenge anybody who thinks about touching it"

Such behaviour can be a force for good, in defense of free speech, for example. But it can also make serious anachronisms look reasonable in your country, while they'd be challenged pretty much anywhere else in the west (the right to bear arms is the most striking example)

If Jim Crow or other similar garbage was to be enshrined in the constitution, there'd be plenty of people to defend it today, only because it's in the constitution, so it's there for a reason.

Long story short: the evolving American society doesn't change the constitution in a one way street. Constitutional change (or at the opposite, constitutional stasis) strongly influences your society as well. If you guys had a "dead" constitution, your political culture would be quite different. And not for the better.

**Wiglaf** · April 29, 2008, 20:39

Kuciwalker is right that the court claimed it was just about facts but it was really about the law. They overturned it as quietly as they could, as precedent, etc was in favor of segregation. Was easier to make a factual argument.

**Ogie Oglethorpe** · April 29, 2008, 20:43

Spif,

Interesting observations from Frenchy land.

**Darius871** · April 29, 2008, 20:44

Originally posted by DinoDoc
I'm fairly certain he's the law student's favorite Justice regardless of political stripe.

QFT

As for the OP, I don't see what Scalia got wrong here. The word "punishment" has an inherently retributive connotation, and nobody is tortured as retribution for being a terrorist. Some people are tortured (depending on your definition of torture) for the sole purpose of extracting information, without even a sliver of retributive motives. Regardless of what my views are on the moral/ethical implications of torture, I still have to concede that his answer to the wording of that question was logically correct. Am I missing something here?

**Ogie Oglethorpe** · April 29, 2008, 20:45

But didn't you hate his condescending smile?

**Berzerker** · April 29, 2008, 20:49

Spiffor, do you believe a majority of Georgians would bring back Jim Crow if allowed? Gun rights are enshrined in the Constitution, Jim Crow was prohibited by that same Constitution a century before the civil rights movement. It was politicians and judges who decided to ignore or change or re-interpret the Constitution to allow Jim Crow, the very process Chegitz wants for today.

**Dinner** · April 29, 2008, 20:51

Originally posted by Darius871

QFT

As for the OP, I don't see what Scalia got wrong here. The word "punishment" has an inherently retributive connotation, and nobody is tortured as retribution for being a terrorist. Some people are tortured (depending on your definition of torture) for the sole purpose of extracting information, without even a sliver of retributive motives. Regardless of what my views are on the moral/ethical implications of torture, I still have to concede that his answer to the wording of that question was logically correct. Am I missing something here?

If a police or other law enforcement person says tell me this or I will torture you then you are being punished for your actions. There really is no way around that truth.

**asleepathewheel** · April 29, 2008, 20:52

Originally posted by Kuciwalker
Well, that's the term Jack Balkin used, IIRC, in his book on Brown.

Hmm. I've found a google book preview, is:

What Brown V. Board of Education Should Have Said

http://books.google.com/books?id=gL1YYW3MOyAC&pg=PA218&lpg=PA218&dq=What+Brown+v.+Board+of+Education+Should+Have+Said&source=web&ots=XkPCcRl1XN&sig=nsvcU9J1ZzHLwaaQMnLVDML9N3g&hl=en#PPA32,M1

Legal experts rewrite the landmark court decisionBrown v. Board of Education, the Supreme Court's landmark 1954 decision ordering the desegregation of America's public schools, is perhaps the most famous case in American constitutional law. Criticized and even openly defied when first handed down, in half a century Brown has become a venerated symbol of equality and civil rights. Its meaning, however, remains as contested as the case is celebrated. In the decades since the original decision, constitutional interpreters of all stripes have found within it different meanings. Both supporters and opponents of affirmative action have claimed the mantle of Brown, criticizing the other side for betraying its spirit. Meanwhile, the opinion itself has often been criticized as bland and uninspiring, carefully written to avoid controversy and maintain unanimity among the Justices. As the 50th anniversary of Brown approaches, America's schools are increasingly divided by race and class. Liberals and conservatives alike harbor profound regrets about the development of race relations since Brown, while disagreeing heatedly about the proper role of the courts in promoting civil equality and civil rights. In this volume, nine of America's top constitutional and civil rights experts have been challenged to rewrite the Brown decision as they would like it to have been written, incorporating what they now know about the subsequent history of the United States but making use of only those sources available at the time of the original decision. In addition, Jack Balkin gives a detailed introduction to the case, chronicling the history of the litigation in Brown, and explaining the current debates over its legacy. Contributors include: Bruce Ackerman, Jack M Balkin, Derrick A. Bell, Drew S. Days, John Hart Ely, Catharine A. MacKinnon, Michael W. McConnell, Frank I Michelman, and Cass R. Sunstein.

this what you're referring to?

I couldn't find anyplace that stated "finding of fact" (as opposed to a change in interpretation), but that could have come in the latter half of the book not located in googlebooks.

If you find me a quote, I'll check it out. Please, I'm not afraid to be wrong here.

**asleepathewheel** · April 29, 2008, 20:53

Originally posted by Darius871

QFT

As for the OP, I don't see what Scalia got wrong here. The word "punishment" has an inherently retributive connotation, and nobody is tortured as retribution for being a terrorist. Some people are tortured (depending on your definition of torture) for the sole purpose of extracting information, without even a sliver of retributive motives. Regardless of what my views are on the moral/ethical implications of torture, I still have to concede that his answer to the wording of that question was logically correct. Am I missing something here?

I said the same in about 10 words 15 posts ago.

**Kuciwalker** · April 29, 2008, 20:55

Originally posted by asleepathewheel
Hmm. I've found a google book preview, is:

What Brown V. Board of Education Should Have Said

http://books.google.com/books?id=gL1YYW3MOyAC&pg=PA218&lpg=PA218&dq=What+Brown+v.+Board+of+Education+Should+Have+Said&source=web&ots=XkPCcRl1XN&sig=nsvcU9J1ZzHLwaaQMnLVDML9N3g&hl=en#PPA32,M1

Legal experts rewrite the landmark court decisionBrown v. Board of Education, the Supreme Court's landmark 1954 decision ordering the desegregation of America's public schools, is perhaps the most famous case in American constitutional law. Criticized and even openly defied when first handed down, in half a century Brown has become a venerated symbol of equality and civil rights. Its meaning, however, remains as contested as the case is celebrated. In the decades since the original decision, constitutional interpreters of all stripes have found within it different meanings. Both supporters and opponents of affirmative action have claimed the mantle of Brown, criticizing the other side for betraying its spirit. Meanwhile, the opinion itself has often been criticized as bland and uninspiring, carefully written to avoid controversy and maintain unanimity among the Justices. As the 50th anniversary of Brown approaches, America's schools are increasingly divided by race and class. Liberals and conservatives alike harbor profound regrets about the development of race relations since Brown, while disagreeing heatedly about the proper role of the courts in promoting civil equality and civil rights. In this volume, nine of America's top constitutional and civil rights experts have been challenged to rewrite the Brown decision as they would like it to have been written, incorporating what they now know about the subsequent history of the United States but making use of only those sources available at the time of the original decision. In addition, Jack Balkin gives a detailed introduction to the case, chronicling the history of the litigation in Brown, and explaining the current debates over its legacy. Contributors include: Bruce Ackerman, Jack M Balkin, Derrick A. Bell, Drew S. Days, John Hart Ely, Catharine A. MacKinnon, Michael W. McConnell, Frank I Michelman, and Cass R. Sunstein.

this what you're referring to?

I couldn't find anyplace that stated "finding of fact" (as opposed to a change in interpretation), but that could have come in the latter half of the book not located in googlebooks.

If you find me a quote, I'll check it out. Please, I'm not afraid to be wrong here.

That is the book. I haven't actually read it; I read his forward or introduction to it, I think in his other book of similar title (on Roe).

This is all IIRC. I could have picked it all up somewhere else.

**asleepathewheel** · April 29, 2008, 20:57

Originally posted by Oerdin

If a police or other law enforcement person says tell me this or I will torture you then you are being punished for your actions. There really is no way around that truth.

Well, yes and no. When you're dealing with a Justice of the Supreme Court, you must choose your words carefully, Stahl did not.

"Cruel and unusual punishment" has a specific meaning in the context of the Constitution. It doesn't refer to pre-conviction matters.

By asking him such a clumsy question, he could easily evade it. Punishment denotes a judicial determination of guilt.

She should have asked him about Due Process, which he would have evaded on other grounds, it just would have been a little more tenuous.

The problem here isn't Scalia, its with the questioner. You're interviewing one of the most intelligent legal minds in the country and you pull your words from the wrong amendment? Sigh.

Why should Scalia do Stahl's job for her, when she is trying to make him look foolish and diabolical?

**Wiglaf** · April 29, 2008, 21:00

Originally posted by Oerdin

If a police or other law enforcement person says tell me this or I will torture you then you are being punished for your actions. There really is no way around that truth.

The due process clause deals with pre-trial incidents like this. Cruel & unusual punishments fairly clearly deals with post-trial.

**Spiffor** · April 29, 2008, 21:03

Originally posted by Berzerker
Spiffor, do you believe a majority of Georgians would bring back Jim Crow if allowed?

Definitely not.

However, if your constitution had continuously sported some anachronistic garbage of the same kind (discrimination against natives was fairly en vogue at the founding fathers' time, for example), I am absolutely sure there'd be plenty of people who'd defend it today. On the sole basis of it being written in the constitution.

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