Slavery and the Phenomenology of Torture

Sanford Levinson Slavery and the Phenomenology of Torture THE YEAR 2 0 0 7 WILL BE THE SESQ UICENT ENNIAL OF THE D R E D SC O TT case, perhaps the m ost reviled case in American constitutional history because of its endorsem ent of slavery as constitutionally protected.1 Slavery m ight have been evil, but this did not prevent its full integra­ tion into the warp and woof of American constitutional law, not least because the presum ed overarching good of creating and then m aintain­ ing a union took precedence over alleviating the plight of slaves. Even if m ost people believed that a society w ithout slavery would certainly be better than a society w ith it, they also believed that elim inating slavery was not w orth the risk of dissolution of the union and the presum ed costs attached to that dire possibility. In this context, one m ight recall that Lincoln, in his first inaugural address, went out of his way to reas­ sure the slave states not only that he m eant no harm to their entrenched practices, but also that that he would support a proposed constitutional am endm ent that would in effect guarantee the m aintenance of slav­ ery in perpetuity, at least in the absence of a voluntary decision by the affected states to cease the practice. And it is w orth recalling as well that the Emancipation Proclamation was notorious for failing to free a single slave in the four “union states” where slavery rem ained fully legal—Missouri, Maryland, Kentucky, and Delaware—not least because of fear of switches in loyalty especially by unionist Missouri and Kentucky slaveholders. For many, torture is at least as evil as slavery. Yet we have learned, over the past five years especially, th at for m any Am ericans the social research Vol 74 : No 1: Spring 2007 149 presumed overarching good of m aintaining our national security takes precedence over the plight of those subjected to highly coercive, even tortuous, m eans of interrogation. As w ith slavery, exceedingly prob­ lematic modes of interrogation are being integrated into the warp and woof of our present legal order. And, as w ith slavery, the possibility of term inating the practice is viewed by m any Americans, w hen all is said and done, as potentially m ore harm ful than m aintaining it, w ith all of its acknowledged costs. I believe, though, that the m ost direct reason to look at torture through the prism provided by a 150-year-old case involving chattel slav­ ery is that the m ost fundam ental legal and m oral issues raised by slav­ ery and torture are astonishingly similar. Both ultim ately raise issues of “sovereignty”—that is, the possession of absolute and unconstrained power—and, therefore, the challenge to “sovereignty” that is implicit in any liberal notion of limited government. Both Dred Scott and those who defend torture today ask us if we believe that there are indeed categories of persons who quite literally have “no rights” that the rest of us are “bound to respect.” This article is divided into three sections: The first discusses why, as both a political theorist o f sorts and as a lawyer, I find the issue of torture both compelling and yet intellectually and morally perplexing. The second section is built around my belief that the word “torture” tends basically to be a placeholder, which means that it needs to be filled in with concrete definitions and exemplars that are often lacking. Any serious discussion of the subject—including, obviously, its ethical dimen­ sions—therefore has to confront the reality that there is almost certainly far less agreement than we m ight hope as to what even counts as torture, let alone if there are any circumstances that m ight justify its infliction. This means, am ong other things, th at any real progress w ith regard to establishing acceptable social policies—as distinguished from engaging in polemical argum ent—requires that we engage in an alto­ gether unpleasant and grim task of offering fairly precise notions of w hat counts as...