There is not time or space here to answer all these questions, but the essays that follow will demonstrate differing ways of approaching several of them. This essay concerns the original meaning of the Cruel and Unusual Punishments Clause. It argues that the Constitution should be interpreted in accordance with its original public meaning, and it demonstrates what effect such an interpretation would have in the real world.
In recent years, some judges and scholars have argued that the meaning of the Constitution should change as societal values change.
Dulles This approach allows the Supreme Court to get to whatever result it considers desirable, regardless of what the text of the Constitution actually means. Originalists object to this approach for many reasons, including the fact that it is inconsistent with democratic principles and the rule of law. In response to the non-originalist approach to the Constitution, some judges and scholars — most prominently Justices Scalia and Thomas — have argued for a very narrow approach to original meaning that is almost willfully indifferent to current societal needs.
To understand their approach, let us revisit the four questions raised in the joint statement concerning the settled history and meaning of the Eighth Amendment: 1 What standard should the Court use in deciding whether a punishment is unconstitutionally cruel?
Justices Scalia and Thomas argue that the four questions raised above should be answered as follows: 1 The standards of cruelty that prevailed in , the year the Eighth Amendment was adopted, provide the appropriate benchmark for determining whether a punishment is cruel and unusual. If a punishment was acceptable in , it must be acceptable today.
A life sentence for a parking violation, for example, would not violate the Constitution. Since flogging, branding, and various forms of bodily mutilation were permissible in the Eighteenth Century, few modern forms of punishment are likely to fall into this category.
In other words, a common punishment might be more cruel than a rare one: For example, it would be more cruel to commit torture on a mass scale than on rare occasions, not less.
The best way to understand this is to run through those four questions once again, using our new understanding of the original meaning of the Clause:. Rather, the benchmark is longstanding prior practice. If a given punishment has been continuously used for a very long time, this is powerful evidence that multiple generations of Americans have considered it reasonable and just.
This does not mean that any punishment that was once part of our tradition can still be used today. If a once-traditional punishment falls out of usage for several generations, it becomes unusual.
If a legislature then tries to reintroduce it, courts should compare how harsh it is relative to those punishment practices that are still part of our tradition. If a punishment is significantly harsher than punishments traditionally given for the same or similar crimes, it is cruel and unusual, even though the same punishment might be acceptable for other crimes.
For example, it would be cruel and unusual to impose a life sentence for a parking violation, but not for murder.
If it fell out of usage for multiple generations, however, it might become cruel and unusual. This has already occurred with respect to some once-traditional applications of the death penalty. It is no longer constitutional to execute a person for theft, for example, because this punishment fell out of usage for this crime a long time ago, and the punishments that have replaced it are far less severe.
If a court were to find that their effect is significantly harsher than the longstanding punishment practices they have replaced, it could appropriately find them cruel and unusual. Burr lost the election, and he blamed Hamilton, so he challenged Hamilton to a duel. Dueling continued in the United States until the midth century.
Burr was never prosecuted for the murder of Hamilton. Today, dueling is deemed unconscionable. No American leader could credibly support dueling as an acceptable method for resolving conflicts. It is hard for us now to understand how the Framers of our Constitution could embrace such a misguided and barbaric practice.
To become a great country, America needs its laws and basic constitutional principles to evolve as our understanding of human capacity and behavior deepens. The greatness of our Constitution and America itself is dependent on how the Constitution is interpreted to ensure that all people are treated equally and fairly and have the same opportunity to exercise the rights to life, liberty, and the pursuit of happiness as the exclusive group of men who authored the Constitution.
As our notions of fairness, equality, and justice have evolved, so too must our interpretation of the Constitution. No provision of the Constitution enshrines this principle more clearly than the Eighth Amendment. This approach begs complex questions, such as who decides what is decent and what is cruel? Throughout its history, the Court has ruled that certain practices are unconstitutional or indecent even when such practices were popular. Ending racial segregation in schools or restaurants and striking down bans on interracial marriage never could have been achieved by a popular vote in the American South.
Black people were a political minority, and policies that denied their basic rights were extremely popular. Accordingly, progressives believe the Court must protect the disfavored, the unpopular, the minority groups who can expect no protection from officials elected by majority vote.
For progressives, what constitutes cruel punishment cannot be resolved by opinion polls or the popularity of the punishment. The legitimacy of a punishment must be assessed instead by evaluating whether it serves an appropriate and acceptable penological purpose.
In this respect, the Eighth Amendment does not merely prohibit barbaric punishments; it also bars disproportionate penalties. Bail also promotes the ideal of being innocent until proven guilty, in that a defendant is not punished with jail time before he or she actually has been convicted. Bail also assists a defendant in preparing his or her case for trial, for it is far more difficult to consult with counsel when one is in police custody. The Eighth Amendment however, does not guarantee an absolute right to be released on bail before trial.
The U. Supreme Court has identified circumstances when a court may refuse bail entirely, such as when a defendant shows a significant risk of running away or poses a considerable danger to the community.
Prohibition against Cruel and Unusual Punishment: The better-known component of the Eighth Amendment is the prohibition against cruel and unusual punishment.
Although this phrase originally was intended to outlaw certain gruesome methods of punishments— such as torture, burning at the stake, or crucifixion— it has been broadened over the years to protect against punishments that are grossly disproportionate to meaning much too harsh for the particular crime.
Except for a brief period in the s, the death penalty has not been considered by the U. Supreme Court to be cruel and unusual punishment.
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