Cruel and Usual

The Boston Review publishes a long essay by Vanderbilt Professor Joan Dayan, who links Abu Ghraib with three decades of domestic assault on the 8th Amendment. Excerpt:

It might seem at first that the rules for the treatment of Iraqi prisoners were founded on standards of political legitimacy suited to war or emergencies; based on what Carl Schmitt called the urgency of the "exception," they were meant to remain secret as necessary "war measures" and to be exempt from traditional legal ideals and the courts associated with them. But the ominous discretionary powers used to justify this conduct are entirely familiar to those who follow the everyday treatment of prisoners in the United States -- not only their treatment by prison guards but their treatment by the courts in sentencing, corrections, and prisoners' rights. The torture memoranda, as unprecedented as they appear in presenting "legal doctrines … that could render specific conduct, otherwise criminal, not unlawful," refer to U.S. prison cases in the last 30 years that have turned on the legal meaning of the Eighth Amendment's language prohibiting "cruel and unusual punishment."

Comments

[Warren]

Just further evidence that the Constitution of the United States is a dead document, of no significance to the American system of governance.

[Skeptikos]

Perhaps Warren, perhaps....it certainly maps out the jetstream.
Thanx for the link, that was definitely a keeper analysis.

[Jason Bourne]

The basic problem with the eighth amendment (and many in the Congress admitted this when it came up for vote there) is that it is fairly standardless in nature; or rather that the standard presented amenable to numerous readings. Indeed, there a numerber of measures that would have been perfectly legal in the 1780s and 1790s - that were or bordered on torture - that we would find horrifying today. Thus we must ask through what lense do we judge the dictates of the eighth amendment - that of the late 18th century or that of 2004?