Feddie and I have been having a discussion about this exchange from last week’s “60 Minutes” in which Antonin Scalia and Lesley Stahl discuss the constitutionality of torture and we decided to throw it open to the good readers here at SA to weigh in on just what Scalia is saying.

Is he saying, as I contend, that torture is not per se unconstitutional or is he arguing here, as Feddie contends, that Scalia is correct on the narrow question of whether or not constitution is prohibited by the 8th Amendment. Feddie says that while Scalia is correct on this point, torture is unconstitutional under a variety of other constitutional provisions, especially the 5th and 14th Amendments (at least that is my interpretation of Feddie’s argument - he is welcome to weigh in and correct it if I am mistaken), whereas I argue that Scalia is not making a narrow, technical argument at all and seems to believe that while it is perfectly fine for Congress to pass law banning torture, torture itself is not necessarily unconstitutional and that, if this specific question ever came before Scalia on the court, he would not hesitate to say just what he said here: torture is not unconstitutional.

So what do SA’s esteemed readers think Scalia is saying here and what you do think of his argument?

Video here - transcript below the fold
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NPR interviews Nino.

You can read or watch the 60 Minutes segment aired tonight, that includes clips from Lesley Stahl’s interview.  The ABA Journal website also posted a bunch of links related to Scalia this evening, including another interview and excerpts from his forthcoming book.

Reuters has this report.

It occurred to me just now that the news that Justice Scalia has co-authored “Making Your Case: The Art of Persuading Judges” (release date: April 28) hit during SA’s hiatus. I’m surprised that Feddie has not already blogged the Scalia book tour/media blitz (unless I missed it), so here goes –

– To Roger Williams law students: “I am not a nut”

– Remarks to/ Q&A with Virginia high schoolers: video (scroll down to April 9) / story

– 60 Minutes interview/profile to air “in late April”

– Videos of co-author Bryan Garner’s interviews with eight Justices (including Scalia) on the subject of “legal writing and advocacy” / story

Today’s must-read post, courtesy of Dan McLaughlin.

And by a 7-2 vote.

Wow.

How in the world did Chief Justice John Roberts manage to line up a 7-2 vote in this case? He is really the ultimate jurisprudential rock star.*

*And yes, I still strongly oppose the death penalty in all instances. My personal disdain for the death penalty has nothing to do with my understanding that the Constitution explicitly permits the states to impose such a penalty.

Update: Well, maybe the Chief wasn’t all that persuasive in this case. Only two other justices joined his plurality opinion. 

You can read the opinion here. Oh, and be sure to read Justice Scalia’s concurrence, which is nothing less than a jurisprudential masterpiece. Bravo, Nino!

I share (in part) this sentiment expressed by Justice Scalia, which comes to us via Professor Althouse:

[Scalia] finds writing “painful” but loves “having written.”

I don’t consider writing “painful,” but it is a challenging process, to be sure. And I am almost never completely satisfied with what I’ve written. But like Scalia, I love “having written.”

It really is a joy to do something you love every day. 

Sometimes you don’t.

(LvATL)

Get ‘em, Nino.

You gotta love Nino.

Nino, as usual, is right.

“He was fun, for a conservative.”

Great line.

Courtesy of Justice Scalia:

“It so happens that everything that is stupid is not unconstitutional.”

But you’re still wrong. 

Because this will undoubtedly be the only time you will ever see me pen these words again: Souter is right. Scalia and Thomas are wrong.

Now, if you’ll excuse me, I need to take a long, hot shower. I feel so dirty.

And they’ll say the silliest things to try and take him down a notch.

This is my old narcotics squad. Front and center is the “master key” that we used to blow open hundreds of doors on no-knock search warrants. Oh, we did knock and announce on occasion. For instance, if Grandma Moses had a marijuana patch in her back yard. Most, however, were considered hazardous entries as the targets were known to be mean as snakes and armed. Another concern was evidence being discarded or destroyed. No-knock was simply a tactical decision made prior to entry based on what we knew at the time; practical decisions that a bunch of lawyers could second guess at a later date.

Officer safety and evidence destruction drove our no-knock decisions and it appears the Hudson outcome offers a common sense approach preserving admissibility of seized evidence. I’m not sure where that leaves us on the question of enforcing knock and announce or the penalty for noncompliance. I’d hate to think that good cops would face a civil rights prosecution for acting in good faith or out of self-preservation. By the way, I wouldn’t hang my hat on the premise that police are more professional than in the past. In my experience, I just don’t see that. It’s up to the D.A. to scrutinize each case to ensure consistent professional conduct by the police.

So held SCOTUS in a 5-4 opinion in Hudson v. Michigan. This is an interesting opinion, one that should spark some debate.  While I agree that suppression of evidence is a harsh penalty–especially when the police have a valid warrant describing that evidence–the dissent makes a good point that the police have little incentive to comply with knock-and-announce without the threat of suppression.  I must say, I don’t buy all of Scalia’s arguments, and most certainly the contention that with professional police forces we have less to worry about than they did in the bad old days.  For a analysis of the opinion see these links:

SCOTUS Blog

Right side of the Rainbow

Orin Kerr

SCAL Blog

LA Times article

Update:  and Publius (Dude nails this one)

Update II: After having more time to review the opinion and reaction to it, I want to add a couple of points.  First, this opinion presents no threat to the core liberties protected by the Fourth Amendment.  Remember that under the facts of this case the cops had a vaild warrant for the search of the residence.  That means, in theory, they had established probable cause for the search in front of a neutral and detached magistrate.  What they did “wrong” was to crash through the door without giving Hudson a reasonable amount of time to answer the knock. 

We must also remember that there are already exceptions to the knock-and-announce rule.  For example, if the cops have reason to fear for their safety or a reasonable belief that evidence is about to be destroyed, then they can dispense with the typical knock-and-announce requirements.  Hence, it is not as if the knock-and-announce rule is an absolute rule with no exceptions. 

Furthermore, the suppression of evidence for violation of the knock-and-announce rule goes to the remedy for a Fourth Amendment violation.  The text is silent on a remedy, and a proper remedy could be a fine for the cops, suspension of the cops, a tort suit against the cops, and maybe even a criminal prosecution against the cops. 

Suppression of evidence for failing to knock and announce seems harsh and is certainly not a constitutional requirement.  I believe that some penalty is warranted.  But that penalty could be a number of things, not just suppression.  The dissent is correct, inasmuch as we see the knock-and-announce rule as critical to the Fourth Amendment framework, that absent a real penalty on the state such as suppression, the cops will likely ignore the knock-and-announce rule in toto.  And, surely the people are entitled to answer the state’s knock at the door in a dignified manner.  

But, I just don’t see the knock-and-announce rule as so critical to the Fourth Amendment that suppression is warranted.  As I do more criminal appeals, I become more in favor of limitations on law enforcement.  Cops are fallen just like the rest of us–if we could trust them, then we wouldn’t need the many of the Fourth Amendment’s provisions. But in this case the remedy (exclusion of evidence) does not fit the violation (failing to knock, announce, and allow Hudson a reasonable time to answer the door in a dignified manner). 

An interesting article by Bloomberg on Justice Scalia. Here’s a taste:

Even if he hasn’t won full-fledged converts, Scalia has reshaped the way attorneys and judges think about the law, court observers say. That’s especially true with cases that involve interpreting federal law, where lawyers now routinely begin arguments by discussing the words and even the punctuation used by Congress.

“He’s one of those very few justices who come along in a generation who really change the law,” said Christopher Landau, a former Scalia clerk who now practices at Kirkland & Ellis in Washington. “He doesn’t always win, but now people are arguing things on his terms.”

He regularly attends a Tridentine Mass.

I hadn’t seen Colbert’s roast at the WHCD until today. Personally, I thought it was more miss than hit. I did, however, think Colbert’s dig at Justice Scalia was pretty funny. You can see it at the 13:30 mark. 

“Stay out of our business!”

Justice Scalia. Actually, Ed Whelan clarifies the misrepresentations appearing in two “hit” pieces of Nino.

Heh. Get ‘em, Nino.

Ankle Biting Pundits has a link to the C-SPAN video of the speech Scalia made on using foreign law in intrepreting the US Constitution. Where it gets fun is where young liberal folks start “asking questions”, that is making speeches. One fellow is even removed from the room.

More importantly, during the speech, Scalia said he was comfortable with stare decisis in a good many cases. Steve, it looks like we need to work harder in getting the message out.

A Ralph Rossum lecture based on his new book, Antonin Scalia’s Jurisprudence: Text and Tradition, will air twice on C-SPAN2’s BookTV this weekend — at 11 AM Saturday and 9 PM Sunday (central time).

Antonin Scalia’s Jurisprudence, by Ralph Rossum, is favorably reviewed by John McGinnis on Opinion Journal today:

Respecting the original meaning of the constitutional text is, for Justice Scalia, the only way of making judicial decision-making consistent with the rule of law and democracy. The greatest threat to both, he believes, is the temptation of judges to substitute their own values for those of the Framers, thereby cutting legal rules free from their moorings and, too often, usurping elected legislatures and the popular will. The constitutional text may at times be ambiguous, he concedes, but the best response to such ambiguity is to defer to American traditions, not to the enthusiasms of the moment.

The New Coalition for Economic and Social Change aims to be “the best site on the Internet for the ideas and concerns of conservative blacks and other nonwhite Americans.” It now offers PDF files of all of Justice Thomas’s majority opinions, here. Here’s hoping they add his dissents soon!

Lagniappe: Ralph Rossum debates Henry Jaffa on natural rights and the Supreme Court, here.  Rossum’s 2002 book, Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy, is reviewed here.

O.k., sportsfans, how would you describe UPI’s “summary” of the Federalist Society’s rebuttal to ABC’s hit piece of Justice Scalia?

Stephen Spruiell has the scoop:

The article quotes two legal ethics experts: NYU professor Stephen Gillers and Doug Kendall, director of Community Rights Counsel. They both criticize Scalia’s decision to accept a trip funded by the Federalist Society, which Ross describes as a “conservative activist group.” Ross doesn’t do his readers the favor, however, of informing them that Gillers has criticized Scalia before in the left-wing magazine The Nation, and that the Community Rights Counsel is a left-wing public interest law firm that receives major funding from George Soros. Neither is impartial toward either Scalia or the Federalist Society, but that is how each is presented.

You can access Professor Gillers’s NYU profile here.