The Legality of Evil: The Torture Memos and the Living Constitution

The Legality of Evil: The Torture Memos and the Living Constitution

The Legality of Evil: The Torture Memos and the Living Constitution

Slate's blog on legal issues.
April 2 2008 9:28 AM

The Legality of Evil: The Torture Memos and the Living Constitution

Orin notes that John Yoo's torture memo sounds very lawyerly in its arguments . This observation points to an important fact about legal discourse: Lawyers can make really bad legal arguments that argue for very unjust things in perfectly legal-sounding language. I hope nobody is surprised by this fact. It is very commonplace. Today we are talking about lawyers making arguments defending the legality of torture. In the past, lawyers have used legal-sounding arguments to defend slavery, the genocide of Native Americans, rape (both spousal and nonspousal), Jim Crow, police brutality, denials of habeas corpus, destruction or seizure of property, and compulsory sterilization. (Oh, and they also decided a presidential election using the flimsiest of legal reasoning. But I digress.)

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Jack M. Balkin is Knight professor of constitutional law and the First Amendment at Yale Law School.