The Constitutionality of Torture: An Unresolved Controversy

The Eighth Amendment of the Bill of Rights plainly asserts that: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This rather conspicuous language is often interpreted, especially by non-legal scholars, to outlaw any variety of torture whatsoever: as torture is often presumptively regarded to be both cruel and unusual in its very nature. However, does the Constitution truly address this particular topic? 

Contrary to popular belief, the Supreme Court has never directly ruled upon the constitutionality of torture or even attempted to disambiguate this notoriously ill-defined term. Furthermore, it may also come as a surprise to many that the Court has never actually applied the Eighth Amendment to limit torture endorsed by a president, let alone torture against foreign nationals. This begs the question: has the Court failed to apply one of the most barefaced tenets of the Constitution? Or alternatively, has the Court succeeded here via exercising judicial restraint?

According to the late Justice Antonin Scalia, the answer is the latter, as he clarified on public radio that: “we have never held that [torture] is contrary to the Constitution. And [he doesn’t] know what provision of the Constitution would contravene.” In other words, the renowned originalist scholar was staunchly unconvinced that the Framers ever intended to forbid torture as a means of extracting information pre-trial. Justice Scalia further maintained that the original public meaning of this particular amendment did not expressly concern, much less prohibit modern interrogation techniques. This uncommonly strict reading of the Eight Amendment of which focuses almost exclusively on the word ”punishment,” strikes many folks as disconcerting and implausible. After all, despite its logical soundness, it does seem quite inconsistent that under this ‘textualist reading’ of the Consitution; it would be considered unacceptable to torture someone after a lawful trial, yet permissible to do so before or without one so long as it is directed toward a legitimate civic purpose such as extracting valuable information for the benefit of the common good. Despite this apparent incoherence, Scalia doubled down on his unpopular position when he brashly asserted that: “We have laws against torture. The Constitution itself says nothing about torture. The Constitution speaks [only and unambiguously] of punishment.” 

Justice Clarence Thomas’s firm stance on a related case complements the controversial view espoused by his friend and colleague. With characteristic indignation, he formally dissented to Justice O’Connor’s majority opinion in Hudson v. McMillian (1992) when he asserted that the Constitution’s framers “simply did not conceive of the Eighth Amendment as protecting inmates from harsh treatment.” Moreover, Justice Thomas insisted that the Eighth Amendment dealt only with the actual sentencing of the criminal, and not with the varying or subsequent conditions and deprivations inside a prison -- that were not formally attached to the sentencing. He then went even further in his scornful remarks when he wrote that the Supreme Court had taken a wrong turn in the 1970’s when it adopted a more expansive view on this topic, concluding that: “The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.” 

That all understood, there are plenty of jurists and legal scholars who vehemently oppose such nuanced textual views regarding torture namely because they intimate the disturbing possibility that preventative interrogation techniques are constitutional. Among these more progressive legal scholars is Brown’s very own professor of political theory, Corey Brettschneider, who staunchly contends that: “The prohibition against torture comes from the Constitution’s values as well as its text. Cruel actions deliberately inflict pain on people, disregarding their basic dignity. The values of the Constitution, however, affirm the dignity of all people: disrespecting a person’s dignity is thus disrespecting the meaning of the Constitution.” This broader ‘moral reading’ approach to this constitutional controversy, which unequivocally condemns all varieties of torture, attempts to butress itself by circumventing the aforementioned incertitude of the Eighth Amendment. Rather than rooting itself in shallow soil, this multifaceted argument reaches beyond the mere prohibition of cruel and unusual punishment in order to invoke the Fifth Amendment protection against compulsory self-incrimination (meant to protect citizens against forced confessions) in addition to the Fourteenth Amendment (which was ratified to further guarantee due process of law). Crucially, this latter clause requires both notice and the opportunity to be heard, before the government may deprive a person of their liberty via torture. 

Moreover, Brettschneider’s cogent argument could be bolstered by the legal reasoning contained in Trop v. Dulles (1958), which held that the Eighth Amendment derives its true meaning from the evolving standards of decency that mark the progress of a maturing society. This ‘adaptive’ legal basis guided by ‘loose constructionism’ presupposes the normative premise that: “the evolving standards doctrine ought to be adjusted to take into account enduring, widespread changes in fundamental values when those changes are consistent with the direction charted by the Framers.” Additionally, reaching even further back into history, it is worth noting that Weems v. United States (1910) determined that “the Eighth Amendment‘s meaning is elastic, indefinite, and thus must be capable of wider application than the mischief which gave it birth.” This holding supports Brettschneider’s argument against the constitutionality of torture, however, I’m not sure that this reasoning is comprehensive enough to finally put the debate to rest. While I am fully convinced that post-trial torture as a form of punishment is unconstitutional, pre-trial interrogation techniques seem to leave us with more questions than they do answers.

After all, riddled throughout the case history pertaining to this topic, we can identify a myriad of legal jargon that only functions to further complicate this matter. For instance, contained within the majority opinion of Hudson v. McMillian (1992) written by Justice O’Connor, lies the following contention: “It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause.” Based upon this provocative claim alone, it seems that this would accommodate or permit enhanced interrogation techniques (such as waterboarding) to be considered constitutional -- so long as such efforts to extract information are conducted as efficiently as possible and in good faith. As far as anyone can imagine; there are surely ways to torture someone that could be considered to be a good-faith effort to maintain or restore discipline, rather than a malicious or sadistic attempt to inflict harm for the sake of infliciting harm. Furthermore, taking a second look at the aforementioned Fifth Amendment protection against compulsory self-incrimination can quickly present a challenge of its own for those who contest the constitutionality of pre-trial torture because it technically does not protect citizens from incriminating their accomplices. Now put yourself in the shoes of a trusted government official, trying to save a metropolis from a group of ticking time bomb terrorists. Is it really so inconceivable to proactively torture these terrorists in order to get them to incriminate each other -- as would be necessary to spoil their devious plot? In this emergency situation, government officials might not only be open to such extraordinary measures, but they might even consider this to be an obligatory sort of preventative response. After all, if the end goal is to save as many innocent lives as possible, perhaps temporarily suspending the rights of these threatening suspects would be justifiable (at least in theory) on utilitarian grounds? 

This thought experiment brings me to my final point which is that while the contitutionality of limited or exceptional forms of torture remains murky at best, I am inclined to believe that torture will remain a clandestine American practice whether we feel comfortable with this reality or not. Therefore, perhaps the better and more pressing question is simply: how ought we mitigate this ghastly activity? Harvard Law professor, Alan Dershowitz, offers a rather intriguing answer to this question. Rather than merely shrugging our shoulders at this moral conundrum, he suggests that we modify our legal system so that in order for a law enforcement officer to engage in such ‘reprehensible’ activity; they must transparently petition and obtain judicial authorization via warrant. As a consequence, Dershowitz believes that this proposed procedure would decrease the total amount of violence directed against torture subjects, decrease the overall frequency of torture, and even (counterintuitively) fortify the rights of potential suspects. In a chaotic world where foreign and domestic terrorism are seemingly on the rise, I’m not sure why we wouldn’t adopt such a common-sense policy that could only help to reinforce the American rule of law -- particularly where it is otherwise disregarded and/or obscured from view. 

Tom Bickel is a junior concentrating in Political Science and Philosophy. He serves as a staff writer for the BULR Blog, and can be reached at thomas_bickel@brown.edu.