Torture is Punishment?

I was watching the Daily Show, and they had several segments about Scalia's view of the 8th Amendment and whether it covers torture. For some reason Jon Stewart was shocked to hear this interpretation.
Scalia's position is that the 8th does not cover torture because the goal of torture is not to punish a person. This made a lot of sense to me when I heard him say it, I looked it up in the dictionary and found,
punishment:A penalty imposed for wrongdoing
Torture then does not make much sense as a punishment, since it's not imposed because of any wrongdoing.
I found this to be a particularly compelling explanation because torture for interrogation purposes is already prohibited by the 5th due process clause. Numerous cases have held that police interrogation of suspects is unconstitutional because of that clause. For those who are opposed to torturing suspected terrorists, I believe their best argument lies in the 5th instead of the 8th.

ABA Affirmative Action

A Wall Street Journal Article on the ABA requiring what looks like a quota if minorities. I was reminded of Thomas Sowell's latest book, Economic Facts and Fallacies, in which he has a section dedicated to the ABA's means-oriented approach to accreditation.
Rather than require a certain number of courses in specific topics or require that each class have a certain number of minorities, the ABA should just look at the ends. Let each law school design its program as it sees fit, and the ABA can just look at the overall bar passage rates and the bar passage rates of its minorities. If both rates are high, who cares if the law schools is accomplishing this by having less than a fixed number of credits in writing or ethics.
I think his most important point is that affirmative action does not do minorities any favors. Affirmative action has encouraged minorities to enroll in higher ranked law schools with low minority bar passage rates instead of staying at lower ranked law schools with dramatically higher minority bar passage rates.

Scalia on 60 Minutes

My favorite line from his interview:
"Some people come and inquire, 'Justice Scalia, when did you first become an originalist?' as if it was some weird affliction, like 'when did you start eating human flesh?'"

Doomed to repeat history

Don't usually like to go into specific political notes, but to be this ignorant of history is just sad. Just ironic to protest the running of the Olympic torch ceremony given its historical background.

Waiting for Antonin

I realized that I've posted half a dozen times, and not one has mentioned Antonin Scalia. Which is why I wanted to share my favorite line of the week, which comes from Scalia's dissent in Tennessee v. Lane.
Fed up with standards like "strict scrutiny" "intermediate scrutiny" and "congruence and proportionality" Scalia decided to apply a much older standard to determine Congress' power under the 14th Amendment: "I shall leave it to Congress, under constraints no tighter than those of the Necessary and Proper Clause."
That is fantastic. In the face of 50 years of case precedent, Scalia casts aside "flabby tests" and goes back to the actual text of the Constitution. I maintain that if Chuck Norris ever gets nominated to the Supreme Court, he will change his name to Antonin Scalia Jr.

Mad TV Ad on McCain

Can't wait for more attack ads like these.

The Efficiency of Gifts

I recently received a copy of Richard Posner's Economic Analysis of Law for my birthday. "Gifts" are actually in the index, (pg. 523) although it deals with whether or not gifts should be considered income for tax purposes. Posner comes to the conclusion that if gifts are truly altruistic, they will not substitute away from market employment, and therefore should not count as taxable income.
Thanks to Rob for getting me the most efficient present I've ever received.