Wednesday, December 12, 2007

Torture, the Rule of Law, and our Miraculous Bill of Rights

I can imagine a scenario in which torturing someone would be the lesser of two evils -- even the moral thing to do, absent other factors. So can many other people. But "other factors" are not absent when we're debating the use of torture authorized by the United States government. The exact same reasoning could be applied to allowing police officers to use torture or to search without warrants or to... really, anything.

Sometimes I wonder how our founders ever managed to get the Bill of Rights ratified. In today's America, almost every one of those ten Amendments would be too controversial to pass. Let's look:

First: I'd bet 30% of Americans would support outlawing Islam, for example, and a larger number would no doubt support currently unconstitutional restrictions on speech and press. Probably more than the third necessary to sink the Amendment would support some governmental "respecting" of Christianity.

Second:
Certainly more than a third of Americans would want to restrict it, at least to ban "assault weapons."

Third: Not really an issue any more, but I can't exactly picture Limbaugh or Hannity defending it. Refusing to let the government house our heroic soldiers in your home? Talk about unpatriotic!

Fourth: Are you kidding me? We don't support this one even though it actually got ratified.

Fifth: The spinmeisters would just put forward one repeat murderer who would have been locked up but for a technicality in his first and only trial. No way this would be ratified.

Sixth: You want to give that murderer the right to counsel????

Seventh:
We're going to waste our tax dollars going through a trial by jury for that pedophile????

Eighth: "Cruel and unusual???" We just want to castrate that child rapist!

Ninth: LOL. Drugs. Sodomy. Privacy. LOL.

Tenth: See Ninth.

Can you imagine any of these passing today? What's changed? What does this have to do with legalizing torture? Is there a difference between torturing a suspected "terrorist" and a suspected serial killer? If so, why?

17 comments:

CyberKitten said...

JA asked: Is there a difference between torturing a suspected "terrorist" and a suspected serial killer? If so, why?

...and what about torturing an 'enemy combatant' to reveal secrets of the next planned attack? Is that OK?

Is it also OK that *they* torture *our* combatants for the same reason? If not then why not?

mushroomjew said...

With a few days left before my con law exam, I can say this with certainty: The Bill of Rights only restricted actions of the new federal government. States were free to trample on these rights (or create them) as they so chose. A number of the original states had established relgions and the Bill of Rights in no way affected this. It was not until the 14th amendment after the civil war, that the Bill of Rights began to apply to the states.
I think this is the reason many states went along with it since their rights/lack of rights were already firmly enshrined in their respective state constitutions. According to my con-law prof, James Madison thought the B of R was a waste of time, since it did not apply to the states.
Now: Off the law library!

Comrade Kevin said...

A very good post that encapsulates a line of thinking that needs to be verbalized.

As I understand it, back in the day the people who voted on the Bill of Rights were by in large wealthy, propertied, gentry. White men with some modicum of education.

For better or for worse, more liberal voting laws have given the masses the ability to vote. And with their ability to vote comes their susceptibility to prejudices and superstitions.

This was the argument used by the elite to deny voting rights to all.

Lawyer-Wearing-Yarmulka said...

Wow. This post is just awful. You just make stuff up, them project it onto "30% of the population".

We don't support the Fourth Amendment? So according to you, if you don't think the 4th Amendment is absolute, that means you don't support it?

5 through 8 simply make no sense, and you know it.

Sodomy was illegal when the 9th Amendment was passed. Ergo, the 9th Amendment doesn't protect sodomy. What the 9th Amendment actually does is a questions Constitutional scholars have been asking for centuries.

10th just reiterates the obvious- that the federal government is one of limited powers.

JDHURF said...

On the subject of torture, you previously had a great post on the topic:

JA said:
One nasty morning Comrade Stalin discovered that his favorite pipe was missing. Naturally, he called in his henchman, Lavrenti Beria, and instructed him to find the pipe. A few hours later, Stalin found it in his desk and called off the search. "But, Comrade Stalin," stammered Beria, "five suspects have already confessed to stealing it."

I responded thusly:

That is one of the better illustrations of the ineffectiveness of torture I have seen, personally, I always use the thousands of individuals who admitted to being witches while being tortured during one of the various witch-hunts.
Torture is not only unethical, but, also impractical. It’s simply deleterious and ignorant to sail from the very shores of civilization which you are attempting to defend in the first place. There are reasons why torture, slavery, rape, etc. are illegal and the argument for torture would be laughable were it not for the fact that it is not only being put forth seriously, but, that the US has been having difficulty lately behaving as a nation of the twenty first century rather than of the thirteenth.

I don't think torture can ever be justified.

Theresa said...

I think that they would pass through congress still. And it is likely if back when the Bill of Rights was created, if put up for everyone to vote, the bill of rights would have failed then by much more than it would today.

Also, although you may see people fearing and making negative comments about Muslims, this doesn't mean that they would want the religion outlawed if that would mean that they were giving so much more power to the government.

Many of the rights in the Bill of Rights were in direct response to perceived abuses of power by Britain. Since we have the Bill of Rights, we don't see the same abuses happening and may not see the importance of some of them such as the 3rd and the 5th.

Jewish Atheist said...

CK:

Good questions.


MJ:

With a few days left before my con law exam, I can say this with certainty: The Bill of Rights only restricted actions of the new federal government. States were free to trample on these rights (or create them) as they so chose.

Interesting. If that's true, I guess that would be our answer as to how they passed.


CK:

For better or for worse, more liberal voting laws have given the masses the ability to vote. And with their ability to vote comes their susceptibility to prejudices and superstitions.

I don't know it seems to me that women, non-whites, and poor people would be even more predisposed to voting for those Amendments than the rich White men who actually did.


LWY:

Wow. This post is just awful. You just make stuff up, them project it onto "30% of the population".

I don't think it's that far-fetched. Imagine a referendum: "Should the practice of Islam be permitted?" You don't think 30% would vote "no?" What percent do you think would?

We don't support the Fourth Amendment? So according to you, if you don't think the 4th Amendment is absolute, that means you don't support it?

Yeah, on this you have a point.

5 through 8 simply make no sense, and you know it.

I don't think so. I honestly don't see two-thirds of today's America voting to ratify any of those.


JDHURF:

Torture is not only unethical, but, also impractical.

I'm sure it's often impractical, but it's not hard to imagine a situation where it is practical. E.g., a person knows the location of a bomb or kidnapped child. You torture him until he tells you, and then you can verify it.

Lawyer-Wearing-Yarmulka said...

You really think that if the BoR was put up for renewal that they wouldn't pass? C'mon.

Jewish Atheist said...

LWY:

Not renewal. I'm imagining the subject was coming up for the first time. Obviously, that's impossible, but it's a thought experiment. I'm just trying to picture two-thirds of the American people voting for a brand new law that, e.g., no person may be charged with the same crime twice, even if, e.g., a murderer gets acquitted because of a technicality in a badly-run trial, where previously, double jeopardy was allowed if an appeals court said so.

Scott said...

You're exactly right JA, there is no way the constitution would never have been passed the way it was in our current time. People today are much to statist to accept such a liberal document.

People have natural rights, pffft, what lunacy.

Lawyer-Wearing-Yarmulka said...

You guys are seriously projecting what is at best a fringe belief onto large percentage of the population.

I'm imagining the subject was coming up for the first time. Obviously, that's impossible, but it's a thought experiment.

It's a though experiment that can't work because we're all products of a system that has had the BoR for over 200 hundred years. Unless you're imagining a society wiped clear of all memories and are starting all over again from scratch.

The BoR is not a "conservative" or "liberal" document in 21st-century speak. It protects rights that liberals favor and rights conservatives favor.

It's only a liberal document if you're using the word liberal in it's 18th century meaning, which has no bearing on today's political description.

Scott said...

I use it in the context the document was written in.

And no, the Bill of Rights do not "protect" anyone's rights. It's just a paper that merely enumerates a few basic rights that are natural to all human beings. The job of "protecting" rights was delegated to the government. Funny how well that's gone.

Lawyer-Wearing-Yarmulka said...

And no, the Bill of Rights do not "protect" anyone's rights. It's just a paper that merely enumerates a few basic rights that are natural to all human beings.

Really? There's a natural right to live in a country that doesn't have an official religion? There's a natural right to a jury trial? Speedy trial?

The job of "protecting" rights was delegated to the government. Funny how well that's gone.

You've got it completely backwards. It's the job of the government not to interfere with those rights. Government is the bad guy in the bill of rights.

Jewish Atheist said...

The BoR is not a "conservative" or "liberal" document in 21st-century speak. It protects rights that liberals favor and rights conservatives favor.

As far as I can tell, today's liberal base favors all but number 2 and today's conservative base favors only number 2.

You've got it completely backwards. It's the job of the government not to interfere with those rights. Government is the bad guy in the bill of rights.

Agreed. Funny how today's "conservatives" favor vastly increasing the power of the executive, granting the executive the right to decide when torture is acceptable, etc.

Not that liberals are free from blame. Besides not presenting a credible check on the conservatives, they tend to favor increasing the government's power to restrict guns and in some cases speech.

Holy Hyrax said...

>Is there a difference between torturing a suspected "terrorist" and a suspected serial killer? If so, why?

Well there is a difference. I mean, is there a difference in stealing a baseball card and stealing a nations supply of flue vaccines?

A terrorists intent is an act of war, not merely some psycho with some fetish. Look at Israel, terrorist after terrorist after terrorist attempt to destroy the fabric of people's lives. Terrorism is something calculated, and planned to destroy as much of a given society as possible to get what it wants. If they are not stopped, more and more come after them till their aims are acheived.

Holy Hyrax said...

>a few basic rights that are natural to all human beings

Not that I necssarily disagree with you, but how are the bill or rights (and the ways they are sometimes interpreted) basic rights of all human beings?

CyberKitten said...

The idea of 'natural rights' is "nonsense on stilts" [can't remember who said this].

Can anyone explain why we have these rights and where they come from?

Rights are a human invention - a 'construct' and nothing more.