Monday, March 17, 2008

Cruel, Inhuman or Degrading Treatment and the Right to Keep and Bear Arms

In his post on Friday, my new co-blogger Ori Herstein takes issue with Jeremy Waldron's reading of the language in various human rights documents prohibiting "cruel, inhuman or degrading" treatment. The colloquy in the comments---between readers, including Waldron himself, and Herstein---is well worth reading. The question that divides Herstein, Waldron, Marty Lederman, and others is whether an authoritative text forbidding "A or B" forbids conduct that is just A and also forbids conduct that is just B (Waldron and others) or whether it only forbids conduct that is "A and B" (Herstein).

At first blush, Waldron seems obviously right about this as a matter of simple logic. Forbidding "A or B" means forbidding that which is A or that which is B. If someone says "I'd like strawberry sorbet. I don't want coconut sorbet or lemon sorbet," it would be inaccurate to say you could abide her wishes by providing her a dish of coconut sorbet so long as it contained no lemon sorbet also. Likewise, if the same sorbet aficionado says she "detests coconut and lemon sorbet," we would ordinarily think that she detests coconut sorbet and she detests lemon sorbet, although it's conceivable that this usage means only to impart that she detests coconut and lemon sorbet in combination.

As Lederman's comment notes, how we parse the various texts relating to "degrading" and like treatment of persons matters most for questions about detainees---and Waldron's lecture indeed focused on such issues. But the question of how to read language of this sort arises in other contexts as well. For instance, does a punishment survive scrutiny under the Eighth Amendment if it is undoubtedly "cruel" but sufficiently widespread that it is not "unusual?" Most prominently, tomorrow the Supreme Court will hear oral argument in District of Columbia v. Heller, in which the question is how to read the "right to keep and bear arms" in the Second Amendment.

Following the "Waldron logic" from above, we would say that this language protects a right to "keep arms" that is separate from the right to "bear arms." Such a reading would surely favor respondent, because it would neutralize the argument of the petitioner that circa 1791 the term "bear arms" was overwhelmingly a reference to military service rather than a generic way to say something like "use weapons for whatever purpose." To be sure, the respondent ALSO argues that the term "bear arms" was sometimes used to mean just that, pointing, among other places, to state constitutions, but these were nonetheless unusual uses of the term. The District points out in its brief that EVERY reference to the term "bear arms" in the Congressional debates over what became the Second Amendment was a reference to military service.

But so what? There is also a separate right to "keep" arms, the respondent argues, and keep has its natural meaning, which is to possess.

Here is where, in my view, the Herstein approach makes considerable sense. As Herstein explains in one of his comments, his is an "interpretive" approach. I take this to mean---and in any event I think it is correct to say---that we give meaning to the various terms in the canonical formulation of the right at issue by reference to its neighbors. Suppose the Constitution contained a freestanding provision stating "The right of the people to keep arms shall not be infringed" and another freestanding provision---perhaps one enacted at a different time---stating "A well regulated militia, being necessary to the security of a free State, the right of the people to bear arms shall not be infringed." In that case, we might well think that the most natural reading of the right to keep arms is a right to personal possession and use of firearms. But married as it is to the "bear arms" provision, with its introductory text, we should be tempted to read "keep" as connected to militia service as well.

In the end, then, the Herstein reading is not at all illogical. He agrees with Waldron that a prohibition on "cruel, inhuman or degrading treatment" means something different from a prohibition on just cruel treatment, or just inhuman treatment or just degrading treatment. What he is saying---and I agree---is that the different thing that the concatenation of these three prohibitions means is not necessarily a prohibition on the totality of what each of the terms would prohibit separately. Herstein's point boils down to the notion that the meaning we give to the words of an authoritative text depends on the context of those words. Even self-described textualists happily accept this notion.

Posted by Mike Dorf