Where the Framers failed

When the Framers - whom I greatly admire - produced the U.S. Constitution as the framework for our government they made one very serious mistake - a mistake that is now revealing itself for perhaps the first time in our 200+ year history: They assumed those holding the reins of government would take the oath of office seriously:

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution...
[Article VI, U.S. Constitution]

... and they assumed that when an office-holder clearly violated this oath, that person would be removed from office.

In previous posts I've noted that Presidential "signing statements" have no Constitutional basis, yet W is not the first president to get away with 'em.

Article II
Before he enter on the execution of his office, he shall take the following oath or affirmation:--
"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Recently we've heard from one of the Justices of our Supreme Court:

Scalia Says 'So-Called Torture' Cannot Be Ruled Out as Interrogation Method
U.S. Supreme Court Justice Antonin Scalia said that aggressive physical interrogation could be appropriate to learn where a bomb was hidden shortly before it was set to explode or to discover the plans or whereabouts of a terrorist group.

"As unlikely as that is, it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face. It would be absurd to say you couldn't do that," Scalia said in an interview with British Broadcasting Radio Corp.

"... stick something under the fingernail"???

No, there is no Article or Amendment that directly addresses the use of torture to compel the giving of information. Amendment V provides that one cannot be compelled to testify against oneself - but this does not directly address the use of torture to extract information other than a confession. Amendment V also provides that no one be deprived of "life, liberty, or property without due process of law", but again - this does not directly address the question of torture to obtain information deemed vital to national security.

Yes, Amendment VIII prohibits the infliction of "cruel and unusual punishments", but the word "punishments" suggests that this applies to sentences for criminal offences after a conviction is obtained, and need not apply to the use of torture as an interrogation technique. (Tho' this Amendment's prohibition of "excessive bail" could be used as the basis for an argument that "cruel and unusual punishments" are prohibited even before a conviction is obtained... One wishes the Framers had been more precise!)

The Framers - most (all?) of them of English heritage - almost certainly celebrated Guy Fawkes Day as children. They were not ignorant of the possibility of plots against the Government. The "ticking bomb" scenario would not be foreign to them (tho' they may have used a different metaphor... the "lit fuse" scenario, perhaps).

Why did they not include a prohibition of torture under these circumstances in the Bill of Rights? Two answers present themselves:

1. They intended to allow torture under the "lit fuse" scenario.
2. It never crossed their minds that men of goodwill would ever consider the use of torture! - why outlaw something that will never happen?

With no evidence to support my conclusion, other than both the Constitution's and the Federalist Papers's silence - I believe that alternative #2 is more likely.

That a sitting Justice on the United States Supreme Court would suggest that there are circumstances under which sticking "something under the fingernail" might be justified is ... incredible!!!

Stop the madness!