Archive for category Law

Death and Torture

I. First, a joke.

Two explorers land on a remote island. It’s lush, green, and temperate. Suddenly, a group of natives surrounds them. They seize one of the explorers but the other manages to get away. They communicate to him that he must make a terrible choice, “Death or Unngg?”

Confused by this new word, the explorer is unsure of what to do. But he reasons that Unngg, whatever it is, must not be worse than death. So he chooses Unngg.

The natives strip him of his clothes and make him lie naked on the beach. They leave. They come back with huge, muscular pink tongues of some giant animal. Then they proceed to beat the explorer over and over again with the tongues. He cries out in horrible yelps of pain. After what seems like several hours, they stop and let him go.

Soon afterwards, the natives seize the second explorer. Again they ask, “Death or Unngg?” The first explorer, sore and beaten, calls out to him, “Choose death! Unngg is worse than you can imagine.”

Reluctantly, yet feeling prudent, the second explorer says, “Death.” The natives reply, “Right. Death by Unngg!”

II. Cruel and Unusual Punishment

The Eighth Amendment to the U.S. Constitution forbids “cruel and unusual punishment.” But what is meant by “cruel and unusual punishment”?

Forms of torture like crucifixion and stoning might strike some as cruel and unusual. Whipping might qualify as cruel.

Some might say capital punishment, in any form, is cruel and unusual. In fact, quite a few excellent legal minds have tried to challenge capital punishment based on the Eighth Amendment.

One reason why such challenges have largely failed is that the historical context of the Constitution makes it apparent that the Framers did not intend to outlaw executions. At the time, many so-called “civilized” nations executed criminals.

But is it objectively reasonable to say killing is acceptable but torturing is unacceptable? Put another way, is there such a thing as a fate worse than death?

If one were to argue torture is worth than execution, maybe this would serve as support. Say a man dies on Feb. 10. Now let’s take the same man and say he is executed on Feb. 5. What has the execution accomplished? All it has done is accelerate the inevitable.

But torture is different. Let’s say a man is tortured as a prisoner of war. He endures whippings, beatings, and unspeakable horrors for years. Somehow he escapes. But he is a changed man. He feels that the person he was died in that camp. Now he lives, but he lives with deep physical, mental, and emotional scars.

But looking at the other side, humans can be very resilient. It is quite possible for a victim of torture to recover and live a meaningful, fulfilling life. But it is not possible for a victim of execution to recover.

What do you think?

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health care reform is constitutional

Yes Virginia, health care reform is constitutional. It’s not just me saying so. Dean Erwin Chemerinsky of the University of California-Irvine School of Law says so. He is the author of Constitutional Law, a textbook used at a number of law schools around the country including DePaul. He has also authored over one hundred law review articles.

You can read his article here: It’s a quick yet vitally important read. While only two pages long, it effectively quashes the main challenges to the constitutionality of health care reform.

His main points are that health care falls under the broad umbrella of interstate commerce and that there is no right to not have insurance. While health care may not be the first thing that comes to mind when one thinks of commerce, the power of Congress to regulate commerce includes a vast spectrum of activities that significantly impact interstate commerce. These activities include dining at a restaurant, staying at a hotel, growing medical marijuana, et al.  It’s not hard to see how health care affects commerce. Sick workers miss days of labor. People spend billions of dollars on drugs manufactured domestically and abroad.  Choosing to become a doctor is a significant economic decision and requires one to spend thousands of dollars on school and delaying one’s entry into the work force. Also, there is no right not to have insurance. States require drivers to have car insurance, so why not require people to have health insurance too. Of course, if one really does not want to buy car insurance, one can choose not to drive. If one really does not want to buy health insurance, what’s the alternative? Suicide? Or move to a country that doesn’t require health insurance, I suppose.

So conservatives who are really upset about health care reform – those are your alternatives – leave this country one way or another.

But seriously, health care reform really helps everyone. No reform comes without a cost, but in the long we will save money, and much more importantly, we will save lives.


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4th amendment? What 4th amendment?

The Obama administration recently renewed the PATRIOT Act. You may think you know what the PATRIOT Act says. But do you know about National Security Letters? The FBI can issue a letter asking authorities to turn over your medical records, bank records, phone records, even records of your use of the internet. The FBI can do this without probable cause or judicial oversight. The person turning over the records cannot discuss this with anyone.

Watch this video from The Young Turks. For more detail, do a wikipedia search on “national security letter” or simply click this link.


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Re: Former President George W. Bush

Revisiting the topic of my last post, I need to make some clarifications. First, despite the title of the post, I do not think George W. Bush is the worst president elected by any democratic nation in the annals of human history. Perhaps someday I will write a post in which I select the most awful president of all time, explaining why I find that president to be particularly odious, but that was not the purpose of the last post. Also, I know that is easy to mock our former President and I normally do not take cheap shots at sitting targets.

All I was trying to say with the last post is that I see a significant difference in the attitude toward the Constitution of President George W. Bush and the attitude of Barack H. Obama. Also, I think it is quite alarming for a U.S. President to refer to the U.S. Constitution in the insulting language that Bush allegedly used. To be fair, one should say “allegedly” because it is possible that someone misquoted him. It would serve the agenda of a certain political party to assert that he said what he allegedly said. His words may have been edited, re-cast, re-imagined, or even wholly invented by his political enemies to demean him. Also, maybe Bush said those words in a context that do not connote a complete disrespect for the Supreme Law of the Land. However, I am inclined to believe that he did, in fact, say what he allegedly said, for at least two reasons. First, within the context of a discussion of the PATRIOT Act, it seems likely that someone would raise the issue of constitutionality and it also seems likely that President Bush would denounce such a concern. Second, it is wholly consistent with the Bush presidency and the Bush persona as I understand them, to say things that are a) poorly thought out and b) deeply disturbing to people with respect for the American presidency. If any of my readers are fervent supporters of President Bush, they should feel totally comfortable disagreeing with me, and I will gladly post their opinions here.

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George W. Bush – Awful President or the awful-est President?

GOP leaders told Bush that his hardcore push to renew the more onerous provisions of the act (USA PATRIOT Act) could further alienate conservatives still mad at the President from his botched attempt to nominate White House Counsel Harriet Miers to the Supreme Court.

“I don’t give a goddamn,” Bush retorted. “I’m the President and the Commander-in-Chief. Do it my way.”

“Mr. President,” one aide in the meeting said. “There is a valid case that the provisions in this law undermine the Constitution.”

“Stop throwing the Constitution in my face,” Bush screamed back. “It’s

just a goddamned piece of paper!”

By the way, our current President is a scholar of Constitutional Law. Need I say more?

(Thanks to Doug Thompson of Capitol Hill Blue –


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