How the US Government Betrayed the Constitution and invented an Imaginary Fascist One
Posted on 10/24/2013 by Juan Cole
The idea of having a strong Federal government was controversial in the early United States, and one of the ways Federalists reassured Americans that it wouldn’t become tyrannical was to append a Bill of Rights to the Constitution.
That attempt to prevent despotism has failed, because the Federal government and its various agencies have set aside the Bill of Rights as a dead letter, substituted for them a bizarre set of interpretations of law, and either avoid having the courts adjudicate their fascist fantasies or managed to have appointed to the bench unethical or authoritarian judges that will uphold virtually anything they do.
How corrupt our system has become is evident when even the New Yorker emphasizes that a secret Senate report found that torture in the Bush years was “unnecessary” and “ineffective.” Not that it was “unconstitutional.”
The Eighth Amendment of the US constitution forbids ‘cruel and unusual punishment.’ US courts have found that the Framers’ injunction was intended to be dynamic, and did not only forbid those things thought barbaric in 1789 but those things contemporary Americans would find cruel and unusual. As Cornell Law school put it,
‘in Weems v. United States it was concluded that the framers had not merely intended to bar the reinstitution of procedures and techniques condemned in 1789, but had intended to prevent the authorization of “a coercive cruelty being exercised through other forms of punishment.” The Amendment therefore was of an “expansive and vital character”41 and, in the words of a later Court, “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” ‘
If a sheriff in a small town arrested a shoplifter and waterboarded him 54 times, the sheriff would go to jail. Federal officials? Not so much.
Let us just underline the Supreme Court’s diction here in Weems. The Framers had sought, they said, to forestall “a coercive cruelty being exercised through other forms of punishment.”
Coercive cruelty. Coercive cruelty was the hallmark of treatment of Federal detainees in the Bush era. That was what Abu Ghraib, Bagram and Guantanamo were about. Some prisoners were likely victims of manslaughter by coercive cruelty (it is hard to know when to stop).
Waterboarding is illegal (not to mention setting German shepherds on people to viciously bite them). Professor of Law Wilson R. Huhn writes:
