• This is a political forum that is non-biased/non-partisan and treats every person's position on topics equally. This debate forum is not aligned to any political party. In today's politics, many ideas are split between and even within all the political parties. Often we find ourselves agreeing on one platform but some topics break our mold. We are here to discuss them in a civil political debate. If this is your first visit to our political forums, be sure to check out the RULES. Registering for debate politics is necessary before posting. Register today to participate - it's free!

Does The U.S. Constitution prohibit torture?

Does the U.S. Constitution prohibit torture?


  • Total voters
    34
Yes, the US Constitution does prohibit torture but not quite in a way we would want it to. It can be found in article six, second clause.

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

Technically by that line alone our agreements with the UN on torture become "supreme law of the land" and as such are Constitutionally recognized. That would mean that all UN resolutions and conventions that we agreed to on Torture as well as the applicable Geneva Conventions we would have to abide by as a matter of law. The awkward part of this is we have no real resolution to challenge this but by the Supreme Court on the grounds of interpretation of any resolutions, conventions, and treaties signed in accordance with our own laws and government limitations. But in this area, there is not much directly stated as a limitation.

The 8th Amendment part of the debate I am not so sure applies near as much.

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

The jurisprudence of the conversation here has more to do with punishments handed down which at the time of the text had the tone of penalties and punishment that was considered barbaric, or excessive in terms of law. Like public lashings, or burning someone at the stake, or seizing someone's total net worth over a minor violation of the law. Not a bit of the Amendment by design has to do with holding "prisoners of war" or "enemy combatants" or whatever the phrase of the day is to describe someone held in some state without the involvement of process of law.

umm no... treaties do not become "supreme law of the land"....only the Constitution is the supreme law of the land.
the Supremacy clause exists to make it clear that the Constitution is supreme to all treaties or laws ( existing or future laws/treaties)

I don't believe the 8th comes into play when we are talking torture of unlawful combatants.... EIT/torture is not a punishment
if the action ( torture) is intended to cause pain/mental anquish, etc.... it would be considered torture and would be unlawful ( not necessarily unconstitutional)
if it is intended to gather information, it can be lawful .

our own law( US code).. and that of the UN.. stipulates that intent is a component to determine whether or not an action is torture.
 
Seems like the wrong question since the question addressed by the Justice Department on this was whether the EIT were legally torture. Based on the lawyers, everyone moved ahead on the basis that what they were doing was legal.

Does the constitution specifically prohibit murder?

Rape?

Incest?

Embezzlement?


In a discussion about the law, it is usually important to distinguish between the architecture law, the co-called law of the land and legislative law that is designed to empower the various governments to make appropriate laws of specifying, prohibiting and determining sentences.

Most confusing argument I have seen in years. It's not even apples and oranges, but trees and fruit.
 
umm no... treaties do not become "supreme law of the land"....only the Constitution is the supreme law of the land.
the Supremacy clause exists to make it clear that the Constitution is supreme to all treaties or laws ( existing or future laws/treaties)


I don't believe the 8th comes into play when we are talking torture of unlawful combatants.... EIT/torture is not a punishment
if the action ( torture) is intended to cause pain/mental anquish, etc.... it would be considered torture and would be unlawful ( not necessarily unconstitutional)
if it is intended to gather information, it can be lawful .

our own law( US code).. and that of the UN.. stipulates that intent is a component to determine whether or not an action is torture.

Did you actually read the clause...

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

That is a big list of things considered the supreme law of the land, one of them is "treaties made, or shall be made under the authority of the United States."
 
Did you actually read the clause...

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

That is a big list of things considered the supreme law of the land, one of them is "treaties made, or shall be made under the authority of the United States."

I might have read it a time or 2 in the last 60 years... I might have read a couple of dozens cases having to do with the supremacy clause as well.


the supremacy clause, overall, is about state laws/statutes/Constitutions and their relationship to the US Constitutions and federal law.( US law is supreme to state law)
the supremacy clause is not applicable to a case in which the primary actor is the federal government allegedly violating federal law.....

the supremacy clause really has zero to do with the EIT/Torture issue... absolutely nothing.

if you are trying to involve a UN treaty in the mix, and using the supremacy clause as a way to say " see! we are bound to the UN treaty!".. there's absolutely no need to do so... it's already barred in the US code...Title 18 › Part I › Chapter 113C › § 2340A

EIT is allowable under our US code.. provided the person being interrogated is not present in the US and is not a US "national".
(well, it doesn't so much allow it as it stipulates jurisdiction...)
 
I don't have a problem with putting a bullet in the bad guy's head. But making someone suffer for extended periods is sick.

I'm sure many of the people who advocate for torture are really looking for revenge. Not so sure they'd be so quick to go for if if they were the ones inflicting the pain.

Many people enjoy inflicting pain and it can be addictive. That is one of the main reasons why torture should not be used.
 
Yes, the US Constitution does prohibit torture but not quite in a way we would want it to. It can be found in article six, second clause.

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

Technically by that line alone our agreements with the UN on torture become "supreme law of the land" and as such are Constitutionally recognized. That would mean that all UN resolutions and conventions that we agreed to on Torture as well as the applicable Geneva Conventions we would have to abide by as a matter of law. The awkward part of this is we have no real resolution to challenge this but by the Supreme Court on the grounds of interpretation of any resolutions, conventions, and treaties signed in accordance with our own laws and government limitations. But in this area, there is not much directly stated as a limitation.

The 8th Amendment part of the debate I am not so sure applies near as much.

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

The jurisprudence of the conversation here has more to do with punishments handed down which at the time of the text had the tone of penalties and punishment that was considered barbaric, or excessive in terms of law. Like public lashings, or burning someone at the stake, or seizing someone's total net worth over a minor violation of the law. Not a bit of the Amendment by design has to do with holding "prisoners of war" or "enemy combatants" or whatever the phrase of the day is to describe someone held in some state without the involvement of process of law.

I agree. Thanks.
 
umm no... treaties do not become "supreme law of the land"....only the Constitution is the supreme law of the land.
the Supremacy clause exists to make it clear that the Constitution is supreme to all treaties or laws ( existing or future laws/treaties)

I don't believe the 8th comes into play when we are talking torture of unlawful combatants.... EIT/torture is not a punishment
if the action ( torture) is intended to cause pain/mental anquish, etc.... it would be considered torture and would be unlawful ( not necessarily unconstitutional)
if it is intended to gather information, it can be lawful .

our own law( US code).. and that of the UN.. stipulates that intent is a component to determine whether or not an action is torture.

Treaties that have gone through the full ratification process have the weight of Federal law. They are supreme insofar as they supersede state law. Treaties do not supersede the Constitution. A treaty provision that violates the Constitution is not enforceable.
 
Treaties that have gone through the full ratification process have the weight of Federal law. They are supreme insofar as they supersede state law. Treaties do not supersede the Constitution. A treaty provision that violates the Constitution is not enforceable.

that is all true...:thumbs:
 
Yes

No

Other

As a punishment, clearly. As an interrogation technique, no.

However, thankfully, it's not a concern, since we have such a thing as a Justice Department, which went to rather great effort to keep us from doing so.
 
If it isn't, it bloody well should be.

Exactly. If torture is not unconstitutional then that oversight needs to be corrected asap.
 
I'm not sure cruel and unusual punishment applies here since the 8th deals with crime and national defense. Torture is wrong because it's incompatible with who we are supposed to be as a people (not to mention any treaty obligations we have) but I'm not sure you can stretch the Constitution to make that case.

It isn't a stretch. 8th Amendment bans cruel and unusual punishment while the 5th Amendment outlines that a detainee (a person being held against their will as a prisoner) can't be "compelled" to be a witness against themselves -- extending to their involvement in conspiracies of any sort. Even threatening to hurt the detainee or their associates counts as "compelling", and in a 18th century context, judicial torture was considered compulsion. In was a reaction to the ongoing policy of the French Crown to use torture to force political outcasts of suspect loyalties of revealing their affiliations in the interests of national security.

The 5th Amendment governs the pre-trial treatment of prisoners, while the 8th amendment governs the post-trial treatment of criminals.
 
Last edited:
It isn't a stretch. 8th Amendment bans cruel and unusual punishment while the 5th Amendment outlines that a detainee (a person being held against their will as a prisoner) can't be "compelled" to be a witness against themselves -- extending to their involvement in conspiracies of any sort. Even threatening to hurt the detainee or their associates counts as "compelling", and in a 18th century context, judicial torture was considered compulsion. In was a reaction to the ongoing policy of the French Crown to use torture to force political outcasts of suspect loyalties of revealing their affiliations in the interests of national security.

The 5th Amendment governs the pre-trial treatment of prisoners, while the 8th amendment governs the post-trial treatment of criminals.

What trial has occurred with any of the detainees who've been tortured?
 
Scalia says the Constitution doesn't prohibit it. He knows more about the document than I do. So I'll go with him on this one.

he may well know more, but he certainly doesn't judge as if he does

jack-nicholson-o.gif
 
What trial has occurred with any of the detainees who've been tortured?

The absence of a trial doesn't play to your argument's favor because it suggests the federal government can authorize a system of detention (military or civilian) that exists separately from a body of law that is compliant with the U.S. Constitution and its maxims. However, the 10th Amendment states the the federal government's power to create and enforce policy is limited to the prerogatives assigned to it in the U.S. Constitution.

In short, under what vested constitutional authority does the federal government enjoy the power to detain a human being outside the context of a legal system -- of which trials necessarily form a part? Even if the Bill of Rights didn't explicitly ban the federal government from doing such a thing (which it does), it still wouldn't have any authority to do so because neither the Welfare or Commerce Clauses that liberal tout to expand federal powers ascribe such a power in a conservative/libertarian interpretation of the document.

If we're being technical, even indefinite detention at Guantanamo Bay is still a legal designation within the constitutional system. The trial might be postponed indefinitely, but you can't detain a person with the touted legal intention of never giving them a trial.

Or just the short version:

The U.S. Constitution does not acknowledge the federal government has the power to detain someone unless they are also going to (a) put that person on trial or (b) release them -- in a manner consistent with those rights ascribed within the Bill of Rights. The President can postpone trials indefinitely during national emergencies, but in other ways the detention must comply with the maxims of the U.S. Constitution.

In fact, taking a strict libertarian/conservative interpretation of the U.S. Constitution, I can make it even simpler than that: the U.S. Constitution and it amendments DO NOT give the federal government the authority to torture someone, so they aren't allowed to create a military or intelligence agency that is legally sanctioned to do so.
 
Last edited:
I might have read it a time or 2 in the last 60 years... I might have read a couple of dozens cases having to do with the supremacy clause as well.


the supremacy clause, overall, is about state laws/statutes/Constitutions and their relationship to the US Constitutions and federal law.( US law is supreme to state law)
the supremacy clause is not applicable to a case in which the primary actor is the federal government allegedly violating federal law.....

the supremacy clause really has zero to do with the EIT/Torture issue... absolutely nothing.

if you are trying to involve a UN treaty in the mix, and using the supremacy clause as a way to say " see! we are bound to the UN treaty!".. there's absolutely no need to do so... it's already barred in the US code...Title 18 › Part I › Chapter 113C › § 2340A

EIT is allowable under our US code.. provided the person being interrogated is not present in the US and is not a US "national".
(well, it doesn't so much allow it as it stipulates jurisdiction...)

So you say, but if you were right why bother with wording this clause in the manner we know it exists? Why bother adding in treaties (and by extension other agreements?)
 
Whether or not the Constitution prohibits torture seems to be irrelevant.
If torture is condoned by any twisting and convoluted interpretation, then
we are no longer the Exceptional Nation that we claim to be and are just
another group of people looking out for our own interests and safety.
Morals and safety should not be mutually exclusive.
 
That statement presumes that torture isn't "cruel and unusual", but rather common/normal and reasonable.

Some get around this by simply refusing to categorize torture as such, hence we get spin like "enhanced interrogation".

That seems reasonable. Torture is usually associated with causing permanent injury, like pulling fingernails. Most people seem to be able to tell the difference when something crosses the line, and what the US did doesnt appear to do so.
 
Treaties that have gone through the full ratification process have the weight of Federal law. They are supreme insofar as they supersede state law. Treaties do not supersede the Constitution. A treaty provision that violates the Constitution is not enforceable.

Actually, the constitution gives equal weight to itself and treaties.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land

But that assumes the treaties made do not conflict with the constitution or laws when made. Once they are made though, they carry equal weight.
 
The absence of a trial doesn't play to your argument's favor because it suggests the federal government can authorize a system of detention (military or civilian) that exists separately from a body of law that is compliant with the U.S. Constitution and its maxims. However, the 10th Amendment states the the federal government's power to create and enforce policy is limited to the prerogatives assigned to it in the U.S. Constitution.

In short, under what vested constitutional authority does the federal government enjoy the power to detain a human being outside the context of a legal system -- of which trials necessarily form a part? Even if the Bill of Rights didn't explicitly ban the federal government from doing such a thing (which it does), it still wouldn't have any authority to do so because neither the Welfare or Commerce Clauses that liberal tout to expand federal powers ascribe such a power in a conservative/libertarian interpretation of the document.

If we're being technical, even indefinite detention at Guantanamo Bay is still a legal designation within the constitutional system. The trial might be postponed indefinitely, but you can't detain a person with the touted legal intention of never giving them a trial.

Or just the short version:

The U.S. Constitution does not acknowledge the federal government has the power to detain someone unless they are also going to (a) put that person on trial or (b) release them -- in a manner consistent with those rights ascribed within the Bill of Rights. The President can postpone trials indefinitely during national emergencies, but in other ways the detention must comply with the maxims of the U.S. Constitution.

In fact, taking a strict libertarian/conservative interpretation of the U.S. Constitution, I can make it even simpler than that: the U.S. Constitution and it amendments DO NOT give the federal government the authority to torture someone, so they aren't allowed to create a military or intelligence agency that is legally sanctioned to do so.


I'm not sure what detainment has to do with this discussion at hand. The question on the table is whether or not there are Constitutional prohibitions against torture. Illegal detainments, habeas etc don't seem to play into the discussion.

My argument with regard to torture is that the Eighth doesn't apply because torture in the case under discussion is not a punishment. It's a tool to get information. The only Constitutional prohibition against torture that seems plausible, though indirect, is the treaty clause.
 
Actually, the constitution gives equal weight to itself and treaties.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land

But that assumes the treaties made do not conflict with the constitution or laws when made. Once they are made though, they carry equal weight.

Yes I agree and your assumption is what makes treaties in practice inferior to the Constitution.
 
Yes I agree and your assumption is what makes treaties in practice inferior to the Constitution.

The exists in both states at the same time. They are as supreme as the constitution, but at the same time have the possibility of being void.
 
While I think torture is completely unacceptable, one thing we have to realize is the Constitution is pretty vague in a lot of areas, leaving it open to interpretation. It never defines what constitutes "cruel and unusual". If torture became the norm, it certainly wouldn't be unusual and cruel is entirely subjective. Lots of liberals think the very existence of prisons at all is cruel. Therefore you are going to get people whose interpretation of the terms will be all over the board.

Cruel and Unusual Punishment. I think punishment is the key word. If someone were to be killed as punishment for stealing a candy bar, that would be cruel and unusual. If someone were to be killed as punishment for needlessdly slaughtering hundreds of innocent children while laughing about it, I wouldn't consider that to be cruel or unusual punishment.

If torture is punishment for not providing information, I would think that the cruelness and unusualness of the punishment would depend heavily on the nature of the information withheld. Looking back through human history, torture is not that unusual in many of these situations. If it has to be both cruel and unusual, then I can see an argument that torture is constitutional in some settings.

That said, the thought makes me uneasy.
 
The exists in both states at the same time. They are as supreme as the constitution, but at the same time have the possibility of being void.

Fair enough. We're probably splitting hairs as it is.
 
Back
Top Bottom