25
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It is noteworthy that in the area of domestic prisoner law, the conservatives on the
Court have crossed the conceptual divide to accept the fact that prisoners have rights
beyond those that the government in its beneficence provides as a matter of legal
charity—which was the 19
th
century legal principle established in Ruffin v. The
Commonweath of Virginia, 1871 Va. Lexis 89. The issue for most of the Justices is not
whether enemy combatants have only those rights that the President, in his beneficence,
provides for them, but rather the legal standard for reviewing their treatment. How much
process is due? And the views of legal conservatives provide reason to worry about
whether prisoners will be provided the form but not the substance of the law. According
to Dayan (2004), the conservative retrenchment on cruel and unusual punishment began
in the early 1980s but after Rehnquist became Chief Justice the Court “fully revealed its
talent for defining away the substance of an Eighth Amendment violation.”
References
Bledsoe, Craig W., Watts, Brian James, and Rozell, Mark J. 2002. “Chief
Executive.” In Guide to the Presidency. Michael Nelson (Ed.). 471-555. Washington,
D.C.: CQ Press.
Chase, Harold W., and Ducat, Craig R. 1979. Constitutional Interpretation.
Second Edition. St. Paul: West Publishing Co.
Dayan, Joan. 2004. “Cruel and Unusual Punishment: The End of the Eighth
Amendment.” Boston Review. (October/November).
Http://bostonreview.net/BR29.5/dayan.html. Accessed Feb.14, 2005.
Convention