Volokh Responds to His Critics
Eugene Volokh, whose surprising advocacy of torture as a means of punishing the most heinous of criminals created a blogstorm of responses, including mine, has issued a thoughful response to the major arguments. It is lengthy, thoughful, nuanced, and defies excerpting. I remain unswayed, mostly out of squeamishness but also a sense that torturing people accomplishes nothing that humane execution or lifetime incarceration would not. Still, his essay is well worth reading.
I do agree with him, though, in his sidebar discussion on whether the Bill of Rights are holy writ. The Framers included an amendment process for a reason, after all.
I would argue, too, that the Bill of Rights has been “amended” dozens of times in practice via judicial fiat. The 2nd, 4th, 5th, and 9th Amendments, particularly, are but a shadow of their former selves.
They also included the 9th ammendment for a reason.