The failure of constitutional torture prohibitions

If constitutional torture prohibitions really have been ineffective, the obvious next question is why. Although we cannot definitely say, our research suggests some likely answers.

Constitutional rights can remain a dead letter because countries lack the capacity to enforce them. In some cases, constitutional commitments might even be adopted under false pretenses. The Constitution of North Korea, for example grants all citizens the “freedom speech, of the press, of assembly, demonstration and association,” but as the dustup over the theatrical release of “The Interview” illustrates, free speech isn’t a core value of the North Korean government. Indeed, empirical research suggests that a substantial portion of the world has what has been described as a sham constitution.

Even among countries that have otherwise strong constitutional traditions, like the United States, constitutional torture prohibitions may fail because the use of torture often enjoys substantial popular support, especially in the face of terror threats. For example, after the Senate Torture report was released, polls suggested that Americans were still supportive of the CIA’s use of torture by a 2-1 margin. Although one reason to enshrine a right in a constitution is to prevent the government from violating it whenever there is majority support for doing so, in practice things don’t always work out that way.