Painful backlash

The latest Classical Values poll got me thinking about "original intent" (as well as "original meaning") as opposed to the "living, breathing Constitution" doctrine in Constitutional Law.

While the Eighth Amendment prohibits "cruel and unusual punishment," history shows that the whipping post was a standard punishment at the time of the founding, and George Washington was known to utilize the lash as a matter of routine. Flogging as punishment in the United States did not disappear until comparatively recently; Delaware's whipping post wasn't finally abolished until 1972.

Yet try going to a cocktail party today and advocating a return to the lash. You'll get one of those looks usually reserved for cranks who like to talk about the death of Vincent Foster. Why? Because times have changed, and the law -- even part of the constitution unchanged since the founding -- has changed with them. Social conventions simply do not countenance tying a man to a post and scourging him with the cat-o'nine tails -- for any reason.

But just because times have changed, does that mean logic has changed with them? I have asked a number of people whether they'd rather be sentenced to five years in prison or receive 100 lashes. The answer is almost always the lash. That's because, even though 100 lashes would be very painful and would leave heavy, permanent scars, the suffering would be mostly over in a month, whereas five years is five years, and worse things can happen in prison than a scarred back. Logic, however, is lost where it comes to prevailing social conventions.

Sodomy laws were once as standard as the lash, although the lash has a much longer tradition. In that respect, the lash is more traditional than "traditional" sodomy laws. Why, the lash is downright classical. Sodomy laws are more modern.

Not that I'm advocating the lash, of course. (Or the sodomy laws, although getting rid of them by judicial fiat seems to have transformed them magically from anti-heterosexual into anti-homosexual laws, thus transforming sodomites into homosexuals.)

I'm just wondering about living and breathing documents and the moral absurdity which can result from simple attempts at logic.

Ditto drug morality. As M. Simon reminded me (indirectly, by means of an earlier comment) we tend to think it is immoral to medicate emotional pain, but absolutely moral to medicate physical pain. (M. Simon's thoughts here.) Yet when anesthesia was first invented, many doctors refused to use it lest it damage their patients' "moral character." This strikes us as absurd today.

But what if they were just as right (or just as wrong) as those who believe it immoral to medicate emotional pain? After all, pain is mostly emotional anyway, which is why narcotics work so well. Emotional pain is generally agreed upon to be worse than physical pain. Are these moral distinctions not more than a bit arbitrary -- even in American culture? Back in the good old days before drug laws (pre-1914), society had failed to make much of a moral distinction between the medication of emotional pain and the medication of physical pain, so it never occurred to anyone that one was "good" and the other "bad." Certainly not enough to criminalize one while legalizing the other. What changed? Did the use of anesthesia in surgery have something to do with this cultural shift? For the many centuries before modern anesthesia, there was no practical way to avoid pain entirely, and certainly no one would have thought about it in terms of a patient's "right." Sure, they had opiates like laudanum, but like all narcotics, that only helps one cope with pain by dulling the emotions; it could never be used successfully in, say, an amputation. Laudanum would provide some relief, but the orderlies would still have to hold down the screaming, struggling patient. Once anesthesia (whether general or local) allowed the worst pain to be escaped entirely, we entered into a new world where the absence of pain was -- or at least seemed -- possible.

And, possibly, immoral. I suspect that in the half century or so between the mainstream use of anthesthia and the passage of the 1914 Harrison Narcotics Act, morality had come to be redefined. Some pain had to be declared legally unavoidable. Quite arbitrarily, the line was drawn at the emotions.

It would not surprise me if somehow (as a result of a murky, poorly understood shift in human psychology) the notion that there is a "right" to avoid physical pain also led ultimately to the abolition of corporal punishment.

What if there's a sort of poorly understood ecological niche for human pain? What if, by establishing a right to be rid of pain in the physical space, society created a backlash in another? Thinking the unthinkable, might the doctors who refused to use anesthesia have been onto something?

What a painful thought. I think I need medication.

ADDITIONAL NOTE: The arbitrariness of our definitions of "pain" as well as "cruelty" may be amply demonstrated by a couple of examples. In the hypothetical choice between 5 years in prison or 100 lashes, most people would take the lashes. Obviously, this begs the meaning of the word "cruel," because an arbitrary construct we call "society" has taken the decision in advance that 5 years is less cruel than 100 lashes -- even though most of us know the opposite is the case.

As to pain, I'll give an example (from real life) of a man who had surgery and was given a 30-day supply of the narcotic Oxycodone for relief of post operative pain. Because he preferred emotional pain relief (yet knew that no doctor would write Oxycodone for that), he simply "toughed it out" and endured the pain, while he looked forward to enjoying the supreme relief that would come when the physical pain passed and he'd only have his emotional pain to medicate. Obviously, to him the emotional pain was worse -- so much worse that he didn't want to squander valuable anti-pain resources on mere physical pain. Again, society has arbitrarily declared that his physical pain is "worse" --despite clear evidence to the contrary.

posted by Eric on 11.23.04 at 05:04 PM


A very interesting post! I've just started doing some trial work with the local prosecutor's office, and to a few close friends I actually made the argument in favor of capital punishment. I explained it this way...
The Criminal Justice System generally has four possible goals: Rehabilitation, Restitution, Retribution, and Incapacitation. Early on in the history of penitentiaries, the main focus was rehabilitation, reforming the criminals to become productive members of society. When crime exploded in the sixties, this goal started to erode and by the eighties, the main goals in retribution (to satisfy the public's sense of "just desserts") and incapacitiation (simply, a criminal in jail is unable to commit more crimes against the public). And that's where we are today. Now, there is some evidence that incapacitation works, since crime has started to decline as sentences got longer. And the public generally seems satisfied that criminals are receiving sentences that cause sufficient amounts of suffering. But it is a horribly, mind-bogglingly EXPENSIVE form of crime management, just because of its inherent costs and also because the potential of rehabilitation is underutilized.

I proposed that rehabilitation could be made to work again, but only under two conditions: first, there must be an ultimate recourse to incapacitiation, if the reahabilitation fails and the criminal will not reform. This is solved with something like a "three strikes" rule. But the bigger stumbling block to public acceptance has been retributive; people are not satisfied that justice is done under many rehabilitative programs because they feel like the criminals get off too lightly (or are even rewarded for their crimes).

Here is where corporal punishment can fit in the picture. On your first and second strikes, a criminal can elect to get little to no jail time, instead taking their punishment in the form of lashes. The public would be satisfied that the criminal has suffered for his misdeeds, but as soon as the lashes are concluded, reformation can begin immediately; there's no need for the criminal to rot for a year or two with fellow criminals. This works out much better for everybody. Of course, a third strike would result in incapacitation, with a very long prison term.

My friends, of course, thought I was nuts, and that any form of corporal punishment is simply unacceptable. But I challenged them as to why, they had no convincing reasons.


P.S. I've always thought that the taboo against emotional pain relief stemmed from the fact that (a) emotions often do not heal on their own and eventually eliminate the need for pain relief, meaning that emotional pain relief is more likely to develop into an endless addictive crutch, and (b) some of these drugs can cause people to think irrationally or antisocially, or become unable to perceive reality clearly, and I believe that this behavior is a deep-seated fear of the human social animal.

Abraham Liebsch   ·  November 24, 2004 2:22 PM

Abraham Liebsch just said about everything I could say on this whole issue of criminal punishment. I'm for corporal punishment for those very reasons, it is both more humane in actuality than imprisonment, and at the same time more terrifying in appearance and thus a more effective deterrent. That's the argument John Stuart Mill (a liberal) made for capital punishment for murderers.

I must quibble with one sentence you wrote, however: "Emotional pain is generally agreed upon to be worse than physical pain"? I haven't seen that agreement or poll. Some emotional pains are worse than a number of physical pains. As you say, the emotional pain of being imprisoned for years is obviously worse than the brief physical pain of being whipped. Losing a loved one can be worse than just about anything. I think I would not want to survive the death of a spouse.

But those ancient forms of execution you list on the right of Classical Values, plus several others, were every one of them pretty damned excruciatingly painful, and I doubt the executioners gave their victims any anesthesia. In other words, unbearable agony for hours on end. The Communists and Nazis and other modern tyrants have combined both forms of torment, e.g., extreme physical pain inflicted in every imaginable way, with, e.g., the emotional horror of having to watch your spouse be raped, tortured, murdered.

As to physical pain, I would say that, for me, a sharp, stinging pain, as with, e.g., a needle or a whip, is much less painful than a dull, throbbing pain. I have submitted to whipping at an S&M club, and would willingly do so again. Call me a coward if you wish, but I must confess that I have a rather low threshold for physical pain. I would surely crack under torture by an enemy, I hope I would have a cyanide pill handy in such an event.

For women, I think it is more generally true that emotional pain is worse than physical pain. A woman can withstand the agony of childbirth, knowing the ultimate meaning of what she is going through. But threaten that child in any way and her wrath will be most terrible to behold. In the Bible, the prophet Hosea compares the wrath of YHVH to the wrath of a bereaved she-bear.

Which kind of pain is worse, emotional or physical? The pain you happen to be suffering at the time! If you've just lost a loved one, you'd gladly suffer just about any physical pain to get him or her back. If you're in physical pain, you'd do just about anything to make it stop. Painful subject to write about, so I'll write about something more pleasurable instead in my next comment....

"Sodomy" laws -- I'm against 'em. I'm glad the Supreme Court struck it down. "Sodomy" laws are morally equivalent to slavery, they declare that you, your body and soul, in your most intimate moments, are the property of the state. I'm against that.

"The right to privacy reflects the moral fact that the individual belongs to himself and not to others or to society as a whole."
-Justice Harry Blackmun, dissent in Bowers vs. Hardwick (1986)

HAIL TO JOHN GEDDES LAWRENCE AND TYRON GARNER, HEROES OF FREEDOM!!!! June 26, 2003, a day I will always celebrate.

You are quite right that that day was a victory not only for homosexuals but also for heterosexuals, for all gynosexual women and men as well as all androsexual men and women.

You are also right that "sodomy" laws are modern, _not_ "archaic" as liberals always foolishly say. (I wrote a post on that fallacy in my blog once.) That Texas law was quite recently drawn up, as was an Arkansas law and several others. "Sodomy" laws are much newer than "sodomy". Men's men and Lesbian women, tribadism, cunnilingus, fellatio, etc., have been with us since men and women were first created by the Gods and the Goddesses. Homosexuality and heterosexuality, gynosexuality and androsexuality, in all their myriad permutations, are ancient and eternal, the Divine order.

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