RELIGIONLAW: approval required (072A8385)

[Mark Graber]

Question: Can we _kill_ terrorists under at least some circumstances
battlefield, self-defense, etc.)?  If so, by what non-superstitious
reason would a particular method of _burial_ be proscribed?

This has always struct me as the wrong question for two reasons.  First,
numerous circumstances exist where it may be justifiable and
constitutional to kill innocent civilians (think of Robert Nozick's
hypothetical where the Nazis strap babies on their
tanks as they roll into France).  I presume those who think that one may
take actions that will knowing kill the babies thinks that because you
can kill the babies, you can their desecrate their bodies afterwards.
Second, and more relevant to constitutionality, constitutional wrongs
are not
necessarily the worse things that can happen to people.  For example, it
is quite possible that the government can constitutionally draft me,
assign me to a combat unit, and assign that combat unit to a suicide
mission.  Nevertheless, the government cannot order me to put up a
Christmas tree in my house.
Moreover, the government cannot say, "well, if we can
constitutionally send you to certain death, surely we can do this to
you."  So the mere fact that the constitution permits us to kill persons
who are trying to kill us does not entail that we may desecrate their
bodies.  Put simply, the government cannot establish that they are not
violating the religion clauses by demonstrating that they could do a
whole lot worse to you.  It may be the case that the religion clauses
(and other constitutional clauses) have certain per se restrictions on
government actions that cause less harm that other government actions
permitted by the constitution.  As least the constitutional text and
practice support that inference.
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> Mark A. Graber
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