Look. If you're going to write an amendment concerning something as morally fundamental as a ban on torture, you can't bog it down in half a dozen "Sections" and lump a laundry list of examples into each one. When James Madison authored the First Amendment, he didn't belabor the point with all sorts of examples of what kinds of laws might abridge speech or even what he meant by "speech", exactly--he just dashed off a single bad-ass sounding sentence, added in some extra commas (as was the style at the time), and had a sandwich.
It all makes sense when you realize that the literary parallel to the Bill of Rights is nothing less than the Ten Commandments. God knew if he wanted to get the point across it would have to be with an awesome-sounding bullet list--"I'm God! I'm the only God! Don't say my name! You can take Sundays off! And no killing!"--and that the mundane details could be safely left to the Talmud nerds. Madison followed suit, to satisfyingly dramatic effect--"Talk! Shoot! Fuck Redcoats, am I right? And no snoopin'!". See? It's wisdom*, distilled into Power-Point-sized chunks for easy consumption.
So, anyway, if we're not talking about some nerdy amendment like allowing an income tax, we'd better be making sure that it lives up to its rhetorical pedigree. That's why my version would look something like this:
Amendment XXVIII.There you go. All of the ticking time-bomb shit, all of the ambiguities about what counts as torture--those can all be sussed out by Supreme Court nerds. Indeed, sensibilities are bound to shift over time, and there's certainly nothing wrong with letting those emerge via Court decisions over the years. But this way, you're sending a clear message about where the United States stands on the issue of torture and human rights.
Congress shall make no law permitting the use of torture against any person.
*Er, wisdom minus the whole slavery-is-bad bit. Both lists seem to be okay with it.
4 comments:
Okay, actually, that sounds surprisingly weak and specific. Why the focus on Congress's legislation? It seems to put the burden in the wrong place; congress can't pass laws making torture legal, but people can just go ahead and torture anyway, as long as it hasn't been made illegal. It leaves us in the same gray area we're already in. What I think you really want to say (somehow) is that any individual bound by American law is punishably breaking the law by torturing anyone, ever. But what form should this take, since the constitution isn't going to start suggesting how to enforce this. Is it a 'right to not be tortured'? That sounds silly. How do these things normally happen?
You're right! Preventing laws that explicitly permit something is obviously not the same as enacting a law that prohibits that something.
Looking at other Constitutional amendments, there aren't many that actually directly prohibit something--most of them either tinker with the government machinery or prohibit the government from doing certain things to its own people--i.e., enumerating the peoples' rights. But framing a torture ban as a "right against torture" is problematic because it implies that the scope of the ban is limited to just US citizens.
The Thirteenth has some interesting wording:
1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
2. Congress shall have power to enforce this article by appropriate legislation.
And of course there was Prohibition:
...the manufacture, sale, or transportation of intoxicating liquors within...the United States and all territory subject to the jurisdiction thereof...is hereby prohibited.
So we have "shall not exist" within the US and "prohibited" in the US. For the torture ban, though, we need it to apply to any agent of the government, no matter where they are or who they are torturing. So how about something like this:
"The use of torture is prohibited for all persons under the jurisdiction of the United States."
And then maybe--reluctantly--add in a section that specifies that the legislative branch can enforce the law through legislation.
Does that cover it?
Yep, I think that covers it. That's pretty similar to what I said, I think, though put more elegantly.
Or, our government could just stop breaking the law by abiding by the Geneva conventions that have been ratified by the US, and other federal US laws that outlaw torture in the US and by US citizens overseas.
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