Saturday, May 30, 2015

What If the Supreme Court Ruled that Waterboarding Is Not Cruel?

As regards American law, the situation is quite clear:  If the Supreme Court ruled that some form of torture -- waterboarding, for example -- is not cruel, then it is 100% true that from the point of view of American law, it would have to be regarded as "not cruel".  Maybe other reasons could be found for limiting the practice, but the 8th Amendment ban on "cruel and unusual punishment" would not apply.  Having been taken to the nation's highest court, this would now be "settled law", and anyone who disagreed with it could be accused of wanting to "turn back the clock" to the time before the law was "settled", or of otherwise not being hip and fashionable and with the times.

Somehow, though, I think our friends on the left would not be willing to confine their criticism of waterboarding to their own subjective preferences.  I don't think they would say, "Well, waterboarding may or may not be right for you, but it's wrong for me."  They would not say, "Don't like waterboarding?  Then don't waterboard."

They would say that waterboarding is cruel in the world of facts, and that the opinion of the Supreme Court was neither more nor less than wrong.  (Note that they generally already say this of Bush v. Gore in 2000.)  They would say that the fact of the cruelty of torture should shape the thinking of the Court, not that the opinion of the Court somehow gave being and meaning and shape to what had been "without form, and void", as though the Court were the Spirit of God moving upon the face of the waters.  They would say that anyone who denies this is either making a shocking intellectual mistake or is some kind of scoundrel who denies what he knows for some selfish advantage.  They would be right about all this.

That makes it all the more perplexing that so many on the left seem genuinely unable to understand the positions of "social conservatives" on issues such as abortion and (even more so) "gay marriage".  On those topics, the main point of disagreement seems to be on whether there is any aspect of reality that we do not create for ourselves, either individually or collectively.

So when a social conservative says, "Two men cannot marry each other, nor can two women marry each other," and a liberal answers, "It's already happening; deal with it," they're not really talking about the same thing.  Maybe part of the confusion comes from the usual American sloppiness with "can" and "may".  The social conservative is not here saying that society should not recognize gay marriages (though he presumably believes that, too); he is saying that there is an essential aspect of marriage which it is impossible to reproduce in any relationship between two people of the same sex, regardless of the attitude of the courts or society.  The liberal pointing out that the courts and society now largely approve of homosexual relationships is irrelevant to that point.

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