concurrence">NEHRING, Justice,

concurring:

129 The lead opinion explores with skill and accuracy the text and historical context of the Utah Constitution's unnecessary rigor clause. Moreover, Associate Chief Justice Wilkins has formulated tests for assaying whether unnecessary rigor is present and whether it is unconstitutional that are true to the history and text of article I, section 9. I therefore join the opinion of the court.

180 I write separately to emphasize that the test for unnecessary rigor formulated by the lead opinion in this case is limited to claims of a constitutional violation arising from personal injury sustained by an inmate. I believe that this underscoring is necessary because neither the lead opinion's test for what constitutes unnecessary rigor nor the test for when an actor inflicting unnecessary rigor may be liable applies to unnecessary rigor claims generally.

131 As the lead opinion notes, Bott v. DeLand defined unnecessary rigor to include " needlessly harsh, degrading, or dehumanizing' treatment of prisoners." 922 P.2d 732, 740 (Utah 1996) (quoting Sterling v. Cupp, 290 Or. 611, 625 P.2d 123, 131 (1981)). Not all needlessly harsh, degrading, or dehumanizing treatment will result in serious injury. Degradation and dehumanization certainly inflict a heavy toll on a person, but not always in the form of physical injuries. Our *599nation's recent and unfortunate experience with the treatment of Iraqi prisoners is but one illustration of unjustifiable human degradation unaccompanied, in most instances, by serious physical injury. It is not necessary in this case to formulate tests to apply to claims of unnecessary rigor where serious injury is not present. It is clear to me, however, that the focus of such tests is properly on the nature of the acts to which the inmate was exposed and not on the foreseeability of injury, serious or otherwise.

132 While the lead opinion makes clear that our test for making out a constitutional violation in Mr. Dexter's case applies only "[when the claim of unnecessary rigor arises from an injury," supra 122, it is less clear that our test for establishing the flagrant nature of the violation is similarly limited. As applied to Mr. Dexter and to those whose claims arise from a physical injury, a person who inflicts unnecessary rigor will be exposed to liability only if "the nature of the act presents an obvious and known serious risk of harm to the arrested or imprisoned person; and second, knowing of that risk, the official acts without other reasonable justification." Supra 180. This two-part test presumes that the official's act resulted in physical injury to the person in custody. As formulated, the test may also be read to imply that money damages are recoverable only by victims of unnecessary rigor who sustain demonstrable physical injury. No such inference should be extracted from the adoption of our flagrant violation test. It is a test crafted to address this case and others that involve physical injury. We leave for another day the question of whether money damages may be recovered by persons in custody who may have been subjected to unnecessary rigor but who have not sustained physical injuries.

133 Finally, I turn to the broader issue of whether and how to apply an originalist interpretation to article I, section 9. Drawing an analogy between the unnecessary rigor clause and an originalist interpretation of the Eighth Amendment prohibition against cruel and unusual punishment in the United States Constitution, one that would deem constitutional any punishment not found to be offensive in colonial times, Defendants would have us similarly cireumseribe our assessment of unnecessary rigor to the practices of that era. The lead opinion effectively employs textual and historical analysis to disable Defendants' argument. Although I endorse that analysis, I believe that the text of article I, section 9 renders improper an originalist interpretation of its protections. The clause proscribes the use of "unnecessary rigor." These two words permit several interpretations to be extracted from them. First, some rigor in the treatment of persons in custody is permitted. Only unnecessary rigor is not. This means that necessary rigor is permitted. Necessity is, at least in this context, a protean term. The rigor necessary to manage a prison riot is likely greater than that required to manage a work release crew. Similarly, the shifting tides of penal philosophy will affect the necessity of certain forms of rigor. Thus, the presence of the term unnee-essary imposes a temporal relativity on article I, section 9 that is not present in the text of the Eighth Amendment and makes this provision of the Utah Constitution a poor candidate for an originalist interpretation.

34 Chief Justice DURHAM and Justice PARRISH concur in Justice NEHRING's opinion.

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