"Explaining" justices

[Volokh, Eugene]

Oh, come now.  Principled libertarianism tells us very little about
whether the Eighth Amendment applies to prison guards' conduct.  I'm not
sure it even tell us that much about terms and conditions of
imprisonment as such, but surely it doesn't dictate that a particular
Amendment be read to, say, extend to prison guard misconduct as opposed
to just the prescribed sentence.  Let's try to leave personal jabs at
fellow list members out of it.
 
Eugene


________________________________

	From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Sanford Levinson
	Sent: Sunday, June 03, 2007 5:48 PM
	To: DavidEBernstein at aol.com; hendersl at ix.netcom.com
	Cc: CONLAWPROF at lists.ucla.edu
	Subject: RE: "Explaining" justices
	
	
	Forget the 8th Amendment; it also constitutes a deprivation of
life, liberty, or property without due process of law.  
	 
	I had not realized that the principled libertarian Prof.
Bernstein turns out, under goading, to embrace statist authoritarianism
as perfectly constitutional.
	 
	sandy

________________________________

	From: DavidEBernstein at aol.com [mailto:DavidEBernstein at aol.com]
	Sent: Sun 6/3/2007 7:47 PM
	To: hendersl at ix.netcom.com; Sanford Levinson
	Cc: CONLAWPROF at lists.ucla.edu
	Subject: Re: "Explaining" justices
	
	
	
	If I recall, Thomas (and Scalia) don't argue that abuse of
prisoners is not "cruel" or "unusual", but that it's not "punishment"
within the constitutional meaning of the term.  I don't know enough
about what "punishment" was/is supposed to mean in the 8th Amendment to
have an informed opinion on this argument, but if indeed the 8th
Amendment was only meant, as an original matter, to speak to lawful
"punishment" and not extralegal abuse, (and thus that this distinction
is a legally significant one), I don't see why holding the Thomas/Scalia
position would have anything to do with psychology, as opposed to their
jurisprudential philosophy of originalism.  I don't think that the
Justices who voted with the Kelo majority hate lower-middle class
homeowners!
	 
	In a message dated 6/3/2007 8:20:09 PM Eastern Daylight Time,
hendersl at ix.netcom.com writes:

		Unless Justice Thomas is more wedded to his narrow
theory of 
		"originalism' than to personal knowledge, however, it
*is* hard to see 
		why he thinks beating and torture of convicted prisoners
is not an 8th 
		amendment violation.  *That* position *is* troubling
without some other 
		psychological explanation such as authoritarianism or
lack of empathy.
		respectfully,

	 



	
________________________________

	See what's free at AOL.com
<http://www.aol.com/?ncid=AOLAOF00020000000503> . 

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