Volokh today changes his mind about amending the Constitution to permit torture (before execution) of certain mass murderers. Did he become convinced that barbarity breeds barbarity, or that enjoying torture was immoral? Certainly not! He says:
Even if enough people vote to authorize these punishments constitutionally and legislatively (which I've conceded all along is highly unlikely), there would be such broad, deep, and fervent opposition to them -- much broader, deeper, and more fervent than the opposition to the death penalty -- that attempts to impose the punishments would logjam the criminal justice system and the political system.
Catch that. It's just not workable. It's like a monogamous married person getting propositioned and saying, "Absolutely not! My spouse will be home soon and it'd be a big mess."
Not surprising for Volokh, really. In 2003 he said that using anti-terrorism laws forbidding the creation of chemical weapons against a meth lab operator was wrong - because it might undermine support for the USA PATRIOT Act. And he said that keeping military recruiters off campuses is wrong - because the military's protection of American lives was a greater moral good than discrimination against gay people was a moral wrong.
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