(Fwd from Jon Roland) Re: Torture
VOLOKH at mail.law.ucla.edu
Fri Jun 14 12:16:11 PDT 2002
> -----Original Message-----
> From: Jon Roland <jon.roland at constitution.org>
> Subject: Re: Is torture unconstitutional?
> Constitutional status of torture
> The Constitution for the United States does not mention the word
> "torture", and at first read seems to refer to it only in the Fifth
> Amendment prohibition against a person being "compelled in any
> criminal case to be a witness against himself", or the Eighth
> Amendment, as "cruel and unusual punishments", so the question
> arises: Does the Constitution prohibit torture to extract
> information from someone, either domestically, or in the course of
> war, when that information is not used to prosecute him?
> The European legal tradition on this matter can be traced back to
> the ancient Roman law, such as the Opinions of Paulus, Book V, Title
> XIV, http://www.constitution.org/sps/sps01_4-5.htm (~224 CE):
> (1) Torture is employed in the detection of crime, but a
> beginning should not be made with its application; and,
> therefore, in the first place, evidence should be resorted to,
> and if the party is liable to suspicion, he shall be compelled
> by torture to reveal his accomplices and crimes.
> Thomas Hobbes, in De Cive, Chapter II (1641-47)
> http://www.constitution.org/th/decive02.htm , says:
> ... although no man be tyed to accuse himself by any compact,
> yet in a publique tryall he may, by torture, be forc'd to make
> answer; but such answers are no testimony of the fact, but helps
> for the searching out of truth; insomuch as whether the party
> tortur'd his answer be true, or false, or whether he answer not
> at all, whatsoever he doth, he doth it by Right.
> However, Spinoza, in his Political Treatise, Chapter 3, (1677)
> http://www.constitution.org/bs/poltr_03.htm , argues
> ... that such things, as no one can be induced to do by rewards
> or threats, do not fall within the rights of the commonwealth.
> ... And to this head must likewise be referred such things as
> are so abhorrent to human nature, that it regards them as
> actually worse than any evil, as that a man should be witness
> against himself, or torture himself, or kill his parents, or not
> strive to avoid death, and the like, to which no one can be
> induced by rewards or threats.
> It was cogently discussed by Cesare Beccaria in his Crimes and
> Punishments, Chapter 16, Of Torture,
> http://www.constitution.org/cb/crim_pun16.htm (1764).
> We may contrast this with a British colonial document which
> establishes the legal tradition of the United States, the
> Massachusetts Body of Liberties (1641),
> http://www.constitution.org/bcp/mabodlib.htm , which provides:
> No man shall be forced by torture to confess any crime against
> himself nor any other, unless it be in some capital case where
> he is first fully convicted by clear and sufficient evidence to
> be guilty, after which if the cause be of that nature, that it
> is very apparent there be other conspirators, or confederates
> with him, then he may be tortured, yet not with such tortures as
> be barbarous and inhumane.
> In the trial of Penn and Mead (1670), Howell's State Trials, Vol. 6,
> Page 951 (6 How. 951), http://www.constitution.org/trials/penn/penn-
> mead.htm , we have this quote from Coke's Institutes:
> "No freeman shall be destroyed," that is, he shall not be "fore-
> judged, of life, limb, dis-herited, or put to torture, or
> death," every oppression against law, by colour of any usurped
> authority, is a kind of destruction, and it is the worst
> oppression that is done by colour of justice. Coke Inst. p. 43.
> In his draft for a constitution for Virginia
> http://www.constitution.org/tj/tj-consvirg.htm (June, 1776), Thomas
> Jefferson offered the clause:
> The General assembly shall have no power to pass any law
> inflicting death for any crime, excepting murder, & *such* those
> offences in the military service for which they shall think
> punishment by death absolutely necessary: and all capital
> punishments in other cases are hereby abolished. Nor shall they
> have power to prescribe torture in any case whatever: ...
> In the Letters from the Federal Farmer, January 3, 1788, the author
> establishes the prevalent view that torture was a violation of the
> right of liberty, http://www.constitution.org/afp/fedfar08.htm .
> In a note in Chap. 4 of The Law of Treason in the United States, J.
> Willard Hurst (1945),
> http://www.constitution.org/cmt/jwh/jwh_treason_4.htm , we have
> 3 Elliott 102-103. Subsequently, without directly attacking the
> treason clause, Henry complained of the failure to forbid cruel
> and unusual punishments. "Congress, from their general powers,
> may fully go into business of human legislation. They may
> legislate, in criminal cases, from treason to the lowest offence
> - petty larceny. They may define crimes and prescribe
> punishments. In the definition of crimes, I trust they will be
> directed by what wise representatives ought to be governed by.
> But when we come to punishments, no latitude ought to be left,
> nor dependence put on the virtue of representatives."
> The constitutionalist leaders were not men to let a point slip
> by, especially so flagrant a slip. Nicholas promptly corrected
> Henry. "But the gentleman says that we are not free from
> torture. Treason against the United States is defined in the
> Constitution, and the forfeiture limited to the life of the
> person attainted. Congress have power to define and punish
> piracies and felonies committed on the high seas, and offences
> against the laws of nations, but they cannot define or prescribe
> the punishment of any other crime whatever, without violating
> the Constitution.
> Randolph also caught up Henry on the point. "The honorable
> gentlemen observe that Congress might define punishments, from
> petty larceny to high treason. This is an unfortunate quotation
> for the gentlemen, because treason is expressly defined in the
> 3d section of the 3d article, and they can add no feature to it.
> They have not cognizance over any other crime except piracies,
> felonies committed on the high seas, and offences against the
> law of nations." 3 Elliott 447, 451, 466.
> In Judge Beverly Tucker's Commentary (1883) on Vattel's Law of
> Nations (1758), http://www.constitution.org/vattel/vattel_cmt.htm he
> If he confessed under torture, that itself was punishment
> without proof.
> In Palko v. State of Connecticut, 302 U.S. 319 (1937)
> http://www.constitution.org/ussc/302-319.htm it is stated:
> No doubt there would remain the need to give protection against
> torture, physical or mental.
> In Adamson v. People of State of California, 332 U.S. 46 (1947)
> http://www.constitution.org/ussc/332-046a.htm we have a statement
> that does not limit the due process clause to being a witness
> against oneself:
> The due process clause forbids compulsion to testify by fear of
> hurt, torture or exhaustion.
>  White v. Texas, 310 U.S. 530; Brown v. Mississippi, 297
> U.S. 278; Ashcraft v. Tennessee, 322 U.S. 143, 154, 926;
> Ashcraft v. Tennessee, 327 U.S. 274.
> It should also be noted that the constitutions of many nations
> specifically prohibit torture, which clauses can be found by doing a
> search on "torture" at http://www.constitution.org/search.htm with
> the Google form set to its default of "Constitution Society".
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> 512/257-2606 Date: 06/14/02 Time: 13:22:58
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