For many, torture is at least as evil as slavery. Yet we have learned, over the past five years especially, that for many Americans the presumed overarching good of maintaining our national security takes precedence over the plight of those subjected to highly coercive, even tortuous, means of interrogation. As with slavery, exceedingly problematic modes of interrogation are being integrated into the warp and woof of our present legal order. And, as with slavery, the possibility of terminating the practice is viewed by many Americans, when all is said and done, as potentially more harmful than maintaining it, with all of its acknowledged costs. I believe, though, that the most direct reason to look at torture through the prism provided by a 150-year-old case involving chattel slavery is that the most fundamental legal and moral issues raised by slavery and torture are astonishingly similar. Both ultimately 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."
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