The last clause of the Eighth Amendment of the United States Constitution forbids "cruel and unusual punishments inflicted." It is simple language that judges have seen fit to abuse and mold to fit their policy preferences as relates to the criminal penalties throughout our nation.
It is in fact these words that are all too often used to argue that an original meaning of the Constitution is impossible to discern. The argument that the Constitution is written in supposed broad terms such as "cruel and unusual," and that it is in the Court's power to interpret those terms in accord with current societal conditions, underlies the "living Constitution" doctrine. Because the ruling of a judge in accord with this doctrine will actually reflect personal political preferences, this is a fallacious doctrine in its foundational underpinnings. The language of the Eighth Amendment and some key language from case law is always cited by opponents of interpreting the Constitution in accord with its original meaning. The case for originalism is clear, and should not be rehearsed. What it should actually be is beyond dispute. But examples of the abuse of the Constitution through an arrogant judiciary requires explication. The Eighth Amendment's "cruel and unusual punishments" clause is the perfect Constitutional archetype demonstrating a judiciary and its "living Constitution" run amok.
THE PRE-CONSTITUTIONAL BACKDROP TO BANNING CRUEL AND UNUSUAL PUNISHMENTS
The Eighth Amendment most certainly bans the barbarities of 17th century England. The brutal deaths inflicted under Stuart rule were banned after the Glorious Revolution in 1688. The 1689 English Bill of Rights from the English Parliament very closely mirrors the Constitution's Eighth Amendment, in saying that "as their ancestors in like cases have usually done...that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The provision in England was largely inspired by the case of Titus Oates. The Supreme Court explained in the 1990 case of Harmelin v. Michigan, in an opinion authored by Justice Antonin Scalia, that "[i]n 1685, Titus Oates, a Protestant cleric whose false accusations had caused the execution of 15 prominent Catholics for allegedly organizing a 'Popish Plot' to overthrow King Charles II in 1679, was tried and convicted before the King's Bench for perjury... The judges met, and, according to Jeffreys, were in unanimous agreement that 'crimes of this nature are left to be punished according to the discretion of this court, so far as that the judgment extend not to life or member.'... The court then decreed that he should pay a fine of '1000 marks upon each Indictment,' that he should be 'stript of [his] Canonical Habits,' that he should stand in the pillory annually at certain specified times and places, that, on May 20, he should be whipped by 'the common hangman' 'from Aldgate to Newgate,' that he should be similarly whipped on May 22 'from Newgate to Tyburn,' and that he should be imprisoned for life... Oates' cause then aroused support in the House of Commons, whose members proceeded to pass a bill to annul the sentence." The House of Common announced: "That the Commons had a particular Regard to these Judgments, amongst others, when that Declaration was first made; and must insist upon it, That they are erroneous, cruel, illegal, and of ill Example to future Ages. . . ." It was these sorts of severe torturous punishments that were meant to be precluded by what eventually became the Eighth Amendment.
The State of Virginia would adopt the provision of the English Bill of Rights in the Virginia Declaration of Rights of 1776. The Virginia Ratifying Convention in 1788 recommended that the U.S. Constitution include the language. They recommended the Constitution be amended to state "[t]hat excessive Bail ought not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." This almost precisely became the language of the Eighth Amendment.
Justice Joseph Story would write in his Commentaries on the Constitution in 1833 that the Eighth Amendment "would seem wholly unnecessary in a free government, since it is scarcely possible, that any department of such a government should authorize, or justify such atrocious conduct. It was, however, adopted as an admonition to all departments of the national government, to warn them against such violent proceedings, as had taken place in England in the arbitrary reigns of some of the Stuarts." In fact, prior to a 1910 case, the Court was, as a Government Printing Office report itself states, "inclined to an historical style of interpretation, determining whether or not a punishment was 'cruel and unusual’ by looking to see if it or a sufficiently similar variant was considered 'cruel and unusual' in 1789" when the Constitution was ratified.
Some emphasis is often placed, by those who would like to cite original sources and still claim the Eighth Amendment is meaningless and elastic, on a couple of Congressman during the First Congress in 1789 debating the proposed Amendments to the Constitution. The fact is that the Eighth Amendment was not subject to that much debate. Given the aforementioned history, that should not be surprising. But Representative William Smith and Samuel Livermore expressed their worries with the proposed Amendment. These worries were actually very prescient, though it would be foolish to view them as guideposts of Constitutional interpretation. On August 17, 1789 Congressman Smith "objected to the words 'nor cruel and unusual punishments;' the import of them being too indefinite." Congressman Smith was more eloquent in his opposition: "The clause seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary... No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind." This is a prophetic observation to anyone who now has the benefit of knowing Supreme Court precedent that has rendered to the Clause one with "no meaning in it."
But this is not a statement to be seen as dispositive of Constitutional meaning. This is because these members of Congress were arguing against the Amendment. As Thomas Jefferson eloquently stated in 1801, "The Constitution on which our Union rests" should "be administered...according to the safe and honest meaning contemplated by the plain understanding of the people of the United States at the time of its adoption--a meaning to be found in the explanations of those who advocated, not those who opposed it, and who opposed it merely lest the construction should be applied which they denounced as possible." In fact, proponents of the Constitution in 1788 had previously recognized this precise argument. It was expressly stated by Federalist James Iredell in arguing against George Mason's support for a Cruel and Unusual Punishments Clause saying it "would have been too vague to have been of any consequence." He wrote in Answers to Mr. Mason's Objections to the New Constitution that it would require a "labyrinth of detail which in the original constitution of a government would have appeared perfectly ridiculous." Given this Amendment relates to any and all possible punishments, this argument is perfectly sensible. But as was previously pointed out, this argument, along with others against the need for a Bill of Rights, were defeated. The compromise with the Anti-Federalists was that they would get their Bill of Rights. It is their concerns against barbaric torture that are therefore to be what the original meaning must reflect, not the concerns of those opponents of the Eighth Amendment before or during the debate over its adoption in the Constitution.
The actions of the First Congress also serves as evidence of the meaning of this provision of the Constitution. Shortly after Congress proposed the Bill of Rights, it promulgated the Nation's first Penal Code. It punished forgery of United States securities, "run[ning] away with [a] ship or vessel, or any goods or merchandise to the value of fifty dollars," or treason with the penalty of death by hanging. The records do not indicate anyone thought this violated the Eighth Amendment.
Unlike the current Supreme Court that sees itself as the oversight committee over all and any penalties it happens to disagree with, the original purpose of the Amendment was in fact in large measure meant to restrain the discretion of judges in this area. As early Constitutional scholar William Rawle writes in his 1829 A View of the Constitution of the United States:
THE DEATH PENALTY DISAPPEARS, THEN COMES BACK AGAIN
No line of jurisprudence so obviously contradicts basic Constitutional text and meaning as the modern Supreme Court's rulings on the death penalty. In 1958 a plurality of Earl Warren's Court made a regrettably indelible mark on this line of jurisprudence when it said “[t]he Amendment . . . must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Too many of the judges fail to explain why the legislature's punishments that they overturn are less representative of society than the rulings of five unelected lawyers. The framers knew that it is possible that "there shall come a Pharoah that knows not Joseph and his sons." The Constitution was meant to set certain lines beyond which government could not cross, not to create a Constitution molded arbitrarily in every generation by the judges of the era. This is not a Constitution that would have ever been ratified. As Justice Scalia has correctly pointed out, "There is plenty of room within this system for 'evolving standards of decency,' but the instrument of evolution (or, if you are more tolerant of the Court’s approach, the herald that evolution has occurred) is not the nine lawyers who sit on the Supreme Court of the United States, but the Congress of the United States and the legislatures of the fifty states, who may, within their own jurisdictions, restrict or abolish the death penalty as they wish."
Nothing better demonstrates the absurdity of death penalty jurisprudence than the fact that legal challenges to the death penalty culminated in a 5-4 U.S. Supreme Court decision of Furman v. Georgia in 1972 that actually led to a de facto moratorium on capital punishment throughout the United States. It was such a confused opinion that this moratorium only came to an end when Greggs v. Georgia was decided in 1976. Not only is it obvious that at the time the Eighth Amendment became law the death penalty existed and was never fathomed to be unconstitutional. The Constitution's text itself explicitly assumes several times that the penalty is a matter of legislative choice.
In a 1985 speech to Georgetown University Justice William Brennan explained why he believed the death penalty was unconstitutional: "Because Judicial power resides in the authority to give meaning to the Constitution, the debate is really a debate about how to read the text, about constraints on what is legitimate interpretation... As augmented by the Bill of Rights and the Civil War Amendments, this text is a sparkling vision of the human dignity of every individual... [The death penalty is] one grave and crucial respect in which we continue, in my judgment, to fall short of the constitutional vision of human dignity." This is laughable. As Judge Robert Bork rebuts, "Human dignity thus becomes a clause of the Constitution that judges may apply in accordance with their own philosophies." What "dignity" means "depends entirely upon the sentiments of each judge."
DEATH PENALTY AND SOME SUPREME COURT EDICTS OVER THE LAST TEN YEARS
The death penalty has been a major area of jurisprudence, and its opponents have continued to make strides under the guise of applying Constitutional principles. In Atkins v. Virgnia in 2002 Justice Antonin Scalia would dissent writing, "Today's decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members."
In that case, the prosecution contested the evidence of retardation and presented testimony of a psychologist who found “absolutely no evidence other than the IQ score … indicating that [petitioner] was in the least bit mentally retarded” and concluded that petitioner was “of average intelligence, at least." The jury in the case had heard extensive evidence of the defendant's alleged mental retardation. Yet the Supreme Court overturned the conviction. So now with the Supreme Court ruling the claim of even mild retardation can result in disallowing the application of the death penalty. Regardless of your opinion on the particular ruling, it is certainly nowhere in the history of the Eighth Amendment.
This case regarding possible mental retardation is not anywhere close to a terrible decision issued by the Supreme Court over the last ten years if compared to many others. In 2008 in Kennedy v. Louisiana the Court dealt with a challenge to a case in which a man "was charged...with the aggravated rape of his then-8-year-old stepdaughter." The child rapist was "convicted and sentenced to death under a state statute authorizing capital punishment for the rape of a child under 12 years of age." The question was whether "imposing the death penalty for the rape of a child" was cruel and unusual punishment. The Supreme Court held that capital punishment for anything but murder violated the Eighth Amendment. I happen to think that the result of this holding is actually agreeable in line with the justification for death penalty laid out by the great English Enlightenment philosopher John Locke (*see below). But as Justice Samuel Alito wrote in his dissent, the Court holds that the Eighth Amendment categorically rules out the death penalty in the most extreme cases of child rape even though "[t]his holding is not supported by the original meaning of the Eighth Amendment" and no "prior precedent commands this result." The Court also never argued against the idea that "the worst child rapists exhibit the epitome of moral depravity" and that "child rape inflicts grievous injury on victims and on society in general." In fact, Justice Antonin Scalia has written, "It [capital punishment] was clearly permitted when the Eighth Amendment was adopted (not merely for murder, by the way, but for all felonies—including, for example, horse–thieving, as anyone can verify by watching a western movie). And so it is clearly permitted today." If capital punishment was not considered cruel and unusual for all felonies, there is little Constitutional reason to believe it should be prohibited even in the worst cases of child rape.
These are but a couple of cases that prove the direction of Supreme Court jurisprudence that completely abuses the original meaning of the Constitution. But it is the next series of cases that not only abuses the Constitution, but makes a complete mockery of the judiciary as a body serious about pretending to follow the dictates of the document to begin with.
Scalia ends his dissent by rightly declaring, "To allow lower courts to behave as we do, 'updating' the Eighth Amendment as needed, destroys stability and makes our case law an unreliable basis for the designing of laws by citizens and their representatives, and for action by public officials. The result will be to crown arbitrariness with chaos." And he didn't even yet realize that the Court would so soon thereafter would move from restricting the death penalty to meddling with life without parole.
NOT ONLY CAPITAL PUNISHMENT, BUT RECENT MEDDLING INCLUDES LIFE WITHOUT PAROLE
Terrance Jamar Graham took part in an armed robbery against a barbeque restaurant. Less than 6 months later Graham participated in an armed home invasion robbery, including holding down the homeowner and his friend at gunpoint while the home was ransacked. The prosecutors alleged that later that night the defendant attempted a second robbery. His probation was revoked and he was eventually sentenced to life in prison. Given that Florida had abolished parole he would not have that option. The Supreme Court in the 2009 case of Graham v. Florida ruled that for a juvenile offender to be sentenced to life in prison without the possibility of parole for a nonhomicide crime was unconstitutional. Justice Clarence Thomas ripped into the decision in his dissent:
When a 14-year-old was convicted of capital felony murder and aggravated robbery, the Supreme Court in the summer of 2012 declared in Miller v. Alabama that statutorily mandating the sentence of life imprisonment without the possibility of parole for someone under the age of 18 was unconstitutional. Justice Thomas pointed out in his dissent that the ruling was not "consistent with the original understanding of the Cruel and Unusual Punishments Clause" and thus upsets "the legislatively enacted sentencing regimes of 29 jurisdictions without constitutional warrant." Justice Alito in his dissent recognized the obvious, that "[t]he Court long ago abandoned the original meaning of the Eighth Amendment... Unless our cases change course, we will continue to march toward some vision of evolutionary culmination that the Court has not yet disclosed. The Constitution does not authorize us to take the country on this journey."
CONCLUSION
The Eighth Amendment is, like many others, a perfect example of an abused Constitution. Judges take advantage of a judicial philosophy that gives them the power to reach the result they desire. They want the Constitution to "live" and "evolve," but only in the direction that matches their preference. They pay no heed to the legitimately passed laws of the legislatures. They ignore the Constitution's original meaning. It is time to restore the original Constitution. Thomas Jefferson wrote in 1819, "The constitution...is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please." The Eighth Amendment is an easy example of how true this is.
When it comes to punishments, James Iredell would tell a grand jury in 1791:
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* The famous philosopher John Locke (1632-1704), whose ideas were a precursor to the likes of James Madison, wrote about the death penalty in his "Second Treatise On Government." This excerpt from the treatise is a must-read for those interested in an eloquent and philosophical perspective on the death penalty:
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The Eighth Amendment most certainly bans the barbarities of 17th century England. The brutal deaths inflicted under Stuart rule were banned after the Glorious Revolution in 1688. The 1689 English Bill of Rights from the English Parliament very closely mirrors the Constitution's Eighth Amendment, in saying that "as their ancestors in like cases have usually done...that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The provision in England was largely inspired by the case of Titus Oates. The Supreme Court explained in the 1990 case of Harmelin v. Michigan, in an opinion authored by Justice Antonin Scalia, that "[i]n 1685, Titus Oates, a Protestant cleric whose false accusations had caused the execution of 15 prominent Catholics for allegedly organizing a 'Popish Plot' to overthrow King Charles II in 1679, was tried and convicted before the King's Bench for perjury... The judges met, and, according to Jeffreys, were in unanimous agreement that 'crimes of this nature are left to be punished according to the discretion of this court, so far as that the judgment extend not to life or member.'... The court then decreed that he should pay a fine of '1000 marks upon each Indictment,' that he should be 'stript of [his] Canonical Habits,' that he should stand in the pillory annually at certain specified times and places, that, on May 20, he should be whipped by 'the common hangman' 'from Aldgate to Newgate,' that he should be similarly whipped on May 22 'from Newgate to Tyburn,' and that he should be imprisoned for life... Oates' cause then aroused support in the House of Commons, whose members proceeded to pass a bill to annul the sentence." The House of Common announced: "That the Commons had a particular Regard to these Judgments, amongst others, when that Declaration was first made; and must insist upon it, That they are erroneous, cruel, illegal, and of ill Example to future Ages. . . ." It was these sorts of severe torturous punishments that were meant to be precluded by what eventually became the Eighth Amendment.
The State of Virginia would adopt the provision of the English Bill of Rights in the Virginia Declaration of Rights of 1776. The Virginia Ratifying Convention in 1788 recommended that the U.S. Constitution include the language. They recommended the Constitution be amended to state "[t]hat excessive Bail ought not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." This almost precisely became the language of the Eighth Amendment.
THE ORIGINAL MEANING OF "CRUEL AND UNUSUAL PUNISHMENTS"
The original meaning of the Eighth Amendment must prevail in deciding questions of government penalties. The clause's "broad" language is reflective of its rather simple original meaning. It largely was meant to prevent punishments such as barbaric torture of United States citizens by the new federal government.
During the debates in the several State Ratification Conventions in 1787 and 1788 arguing over whether the Constitution should be adopted, the Federalists supported the new Constitution. One of their central arguments repeated time and time again was that because the new federal government was of limited and enumerated powers, there could be no violation of fundamental rights. They argued the structural provisions so restrained the powers of the federal government that worrying about infringements on natural rights were misplaced and even foolhardy. The Anti-Federalists, however, opposed the Constitution's ratification. However, the Constitution was eventually adopted in large measure because many of the Anti-Federalists pushed for, at the very least, a Bill of Rights to be included in the Constitution. The Federalists agreed to this compromise, and they kept to it when the first Ten Amendments were finally ratified by the States in 1791. It is precisely, therefore, one of the fears of the Anti-Federalists that would be embodied in the Eighth Amendment. It was in fact their concerns being addressed and alleviated. Understanding this basic historical backdrop is key to understanding the original meaning of the Eighth Amendment.
Patrick Henry argued against the Constitution at the 1788 Virginia Ratifying Convention. The great orator of the Revolution stated, "But when we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives...What has distinguished our ancestors?--That they would not admit of tortures, or cruel and barbarous punishment... They may...[partake] of torturing, to extort a confession of the crime. They will say...that there is such a necessity of strengthening the arm of government, that they must have a criminal equity, and extort confession by torture, in order to punish with still more relentless severity. We are then lost and undone." George Mason from Virginia also argued against ratifying the Constitution, saying it it did not like Virgnia's Bill of Rights, that he mainly authored, "prohibit torture." In fact, he specifically declared that Virginia's "clause of the bill of rights provided that no cruel and unusual punishments shall be inflicted; therefore, torture was included in the prohibition." Similarly, Abraham Holmes said at the Massachusetts Ratifying Convention that the Federal government is "nowhere restrained from inventing the most cruel and unheard-of punishments, and annexing them to crimes; and there is no constitutional check on them, but that racks and gibbets may be amongst the most mild instruments of their discipline" under the Constitution. It is these sorts of concerns that were later alleviated and directly addressed with the passing of the Eighth Amendment to the Constitution. Barbaric torturous punishment were at the heart of the prohibition.
Justice Joseph Story would write in his Commentaries on the Constitution in 1833 that the Eighth Amendment "would seem wholly unnecessary in a free government, since it is scarcely possible, that any department of such a government should authorize, or justify such atrocious conduct. It was, however, adopted as an admonition to all departments of the national government, to warn them against such violent proceedings, as had taken place in England in the arbitrary reigns of some of the Stuarts." In fact, prior to a 1910 case, the Court was, as a Government Printing Office report itself states, "inclined to an historical style of interpretation, determining whether or not a punishment was 'cruel and unusual’ by looking to see if it or a sufficiently similar variant was considered 'cruel and unusual' in 1789" when the Constitution was ratified.
Some emphasis is often placed, by those who would like to cite original sources and still claim the Eighth Amendment is meaningless and elastic, on a couple of Congressman during the First Congress in 1789 debating the proposed Amendments to the Constitution. The fact is that the Eighth Amendment was not subject to that much debate. Given the aforementioned history, that should not be surprising. But Representative William Smith and Samuel Livermore expressed their worries with the proposed Amendment. These worries were actually very prescient, though it would be foolish to view them as guideposts of Constitutional interpretation. On August 17, 1789 Congressman Smith "objected to the words 'nor cruel and unusual punishments;' the import of them being too indefinite." Congressman Smith was more eloquent in his opposition: "The clause seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary... No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind." This is a prophetic observation to anyone who now has the benefit of knowing Supreme Court precedent that has rendered to the Clause one with "no meaning in it."
But this is not a statement to be seen as dispositive of Constitutional meaning. This is because these members of Congress were arguing against the Amendment. As Thomas Jefferson eloquently stated in 1801, "The Constitution on which our Union rests" should "be administered...according to the safe and honest meaning contemplated by the plain understanding of the people of the United States at the time of its adoption--a meaning to be found in the explanations of those who advocated, not those who opposed it, and who opposed it merely lest the construction should be applied which they denounced as possible." In fact, proponents of the Constitution in 1788 had previously recognized this precise argument. It was expressly stated by Federalist James Iredell in arguing against George Mason's support for a Cruel and Unusual Punishments Clause saying it "would have been too vague to have been of any consequence." He wrote in Answers to Mr. Mason's Objections to the New Constitution that it would require a "labyrinth of detail which in the original constitution of a government would have appeared perfectly ridiculous." Given this Amendment relates to any and all possible punishments, this argument is perfectly sensible. But as was previously pointed out, this argument, along with others against the need for a Bill of Rights, were defeated. The compromise with the Anti-Federalists was that they would get their Bill of Rights. It is their concerns against barbaric torture that are therefore to be what the original meaning must reflect, not the concerns of those opponents of the Eighth Amendment before or during the debate over its adoption in the Constitution.
The actions of the First Congress also serves as evidence of the meaning of this provision of the Constitution. Shortly after Congress proposed the Bill of Rights, it promulgated the Nation's first Penal Code. It punished forgery of United States securities, "run[ning] away with [a] ship or vessel, or any goods or merchandise to the value of fifty dollars," or treason with the penalty of death by hanging. The records do not indicate anyone thought this violated the Eighth Amendment.
Unlike the current Supreme Court that sees itself as the oversight committee over all and any penalties it happens to disagree with, the original purpose of the Amendment was in fact in large measure meant to restrain the discretion of judges in this area. As early Constitutional scholar William Rawle writes in his 1829 A View of the Constitution of the United States:
During the arbitrary reigns of the Stuarts in Britain, particularly of the two last, one frequent mode of oppressing those who were obnoxious to the court, was to cause criminal proceedings to be instituted against them, to demand bail in extravagant sums, and on their failing to procure it, to commit them to prison... The laws of a free country seldom leave the sort of punishment to be inflicted to the discretion of the judge, although the measure or extent of it, as for instance the quantum of a limited fine, or the duration of a term of imprisonment, which, by the law is not to be exceeded, is often submitted to him. The peculiar circumstances of each case, the contrition or general good character of the offender, may suggest and justify a moderation of the full extent of the punishment. But a law which subjects an offender to any sort of punishment, is unknown to our civil code. If the law is silent in respect to the mode of punishment, which is sometimes the case when an act is prohibited in general terms, without saying more, the court is understood to be confined to the usual moderate punishment of fine and imprisonment, or one of them. If a fine alone is imposed, imprisonment may be an adjunct, to enforce the payment of it. The constitution was specifically meant to stop society's evolution against that which is written within the document.The Eighth Amendment was therefore actually a restraint on judges, not a license for federal judges to engage in meddling with the punishments enacted by the legislative branches of government in accord with their whims. When judges issue their absurd Eighth Amendment rulings, they are therefore subverting the Constitution itself.
THE DEATH PENALTY DISAPPEARS, THEN COMES BACK AGAIN
No line of jurisprudence so obviously contradicts basic Constitutional text and meaning as the modern Supreme Court's rulings on the death penalty. In 1958 a plurality of Earl Warren's Court made a regrettably indelible mark on this line of jurisprudence when it said “[t]he Amendment . . . must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Too many of the judges fail to explain why the legislature's punishments that they overturn are less representative of society than the rulings of five unelected lawyers. The framers knew that it is possible that "there shall come a Pharoah that knows not Joseph and his sons." The Constitution was meant to set certain lines beyond which government could not cross, not to create a Constitution molded arbitrarily in every generation by the judges of the era. This is not a Constitution that would have ever been ratified. As Justice Scalia has correctly pointed out, "There is plenty of room within this system for 'evolving standards of decency,' but the instrument of evolution (or, if you are more tolerant of the Court’s approach, the herald that evolution has occurred) is not the nine lawyers who sit on the Supreme Court of the United States, but the Congress of the United States and the legislatures of the fifty states, who may, within their own jurisdictions, restrict or abolish the death penalty as they wish."
Nothing better demonstrates the absurdity of death penalty jurisprudence than the fact that legal challenges to the death penalty culminated in a 5-4 U.S. Supreme Court decision of Furman v. Georgia in 1972 that actually led to a de facto moratorium on capital punishment throughout the United States. It was such a confused opinion that this moratorium only came to an end when Greggs v. Georgia was decided in 1976. Not only is it obvious that at the time the Eighth Amendment became law the death penalty existed and was never fathomed to be unconstitutional. The Constitution's text itself explicitly assumes several times that the penalty is a matter of legislative choice.
In a 1985 speech to Georgetown University Justice William Brennan explained why he believed the death penalty was unconstitutional: "Because Judicial power resides in the authority to give meaning to the Constitution, the debate is really a debate about how to read the text, about constraints on what is legitimate interpretation... As augmented by the Bill of Rights and the Civil War Amendments, this text is a sparkling vision of the human dignity of every individual... [The death penalty is] one grave and crucial respect in which we continue, in my judgment, to fall short of the constitutional vision of human dignity." This is laughable. As Judge Robert Bork rebuts, "Human dignity thus becomes a clause of the Constitution that judges may apply in accordance with their own philosophies." What "dignity" means "depends entirely upon the sentiments of each judge."
DEATH PENALTY AND SOME SUPREME COURT EDICTS OVER THE LAST TEN YEARS
The death penalty has been a major area of jurisprudence, and its opponents have continued to make strides under the guise of applying Constitutional principles. In Atkins v. Virgnia in 2002 Justice Antonin Scalia would dissent writing, "Today's decision is the pinnacle of our Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that jurisprudence, find no support in the text or history of the Eighth Amendment; it does not even have support in current social attitudes regarding the conditions that render an otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members."
In that case, the prosecution contested the evidence of retardation and presented testimony of a psychologist who found “absolutely no evidence other than the IQ score … indicating that [petitioner] was in the least bit mentally retarded” and concluded that petitioner was “of average intelligence, at least." The jury in the case had heard extensive evidence of the defendant's alleged mental retardation. Yet the Supreme Court overturned the conviction. So now with the Supreme Court ruling the claim of even mild retardation can result in disallowing the application of the death penalty. Regardless of your opinion on the particular ruling, it is certainly nowhere in the history of the Eighth Amendment.
This case regarding possible mental retardation is not anywhere close to a terrible decision issued by the Supreme Court over the last ten years if compared to many others. In 2008 in Kennedy v. Louisiana the Court dealt with a challenge to a case in which a man "was charged...with the aggravated rape of his then-8-year-old stepdaughter." The child rapist was "convicted and sentenced to death under a state statute authorizing capital punishment for the rape of a child under 12 years of age." The question was whether "imposing the death penalty for the rape of a child" was cruel and unusual punishment. The Supreme Court held that capital punishment for anything but murder violated the Eighth Amendment. I happen to think that the result of this holding is actually agreeable in line with the justification for death penalty laid out by the great English Enlightenment philosopher John Locke (*see below). But as Justice Samuel Alito wrote in his dissent, the Court holds that the Eighth Amendment categorically rules out the death penalty in the most extreme cases of child rape even though "[t]his holding is not supported by the original meaning of the Eighth Amendment" and no "prior precedent commands this result." The Court also never argued against the idea that "the worst child rapists exhibit the epitome of moral depravity" and that "child rape inflicts grievous injury on victims and on society in general." In fact, Justice Antonin Scalia has written, "It [capital punishment] was clearly permitted when the Eighth Amendment was adopted (not merely for murder, by the way, but for all felonies—including, for example, horse–thieving, as anyone can verify by watching a western movie). And so it is clearly permitted today." If capital punishment was not considered cruel and unusual for all felonies, there is little Constitutional reason to believe it should be prohibited even in the worst cases of child rape.
These are but a couple of cases that prove the direction of Supreme Court jurisprudence that completely abuses the original meaning of the Constitution. But it is the next series of cases that not only abuses the Constitution, but makes a complete mockery of the judiciary as a body serious about pretending to follow the dictates of the document to begin with.
THE SHAME OF MAKING THE CONSTITUTION BEHOLDEN TO "INTERNATIONAL AUTHORITIES"Roper v. Simmons in 2005 was one of the most ignoble decisions rendered by the Supreme Court. It dealt with whether it was Constitutional to execute a juvenile offender. The defendant Simmons was convicted of a most heinous murder and was 17 years old. He was tried as an adult. The jury recommended the death penalty in a case in which the defendant had admitted that the events had confirmed he resolved to murder his victim. It was case that involved burglary, kidnapping, and murder. Within this case the Court did not look to the original meaning of the Constitution. Instead they actually declared that "the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment." This is the highest abuse of our nation's Basic Law. It was Americans that ratified the Constitution in 1788 and the Bill of Rights in 1791. As the party to the compact it is the meaning these Americans gave to it that is relevant. What the French do when they punish a Parisian criminal or what the North Koreans do in their gulags to a political prisoner, simply has no relation to answering Constitutional questions (that clearly have no relationship to international law). As Justice Scalia wrote in dissent, "fundamentally...the basic premise of the Court’s argument–that American law should conform to the laws of the rest of the world–ought to be rejected out of hand." Would we look to the fact that many countries have established religions, or even theocracies, as having any bearing on the First Amendment? Does the Supreme Court cite international law in its abortion cases? Or even the right to a jury trial? Of course not. There is absolutely no reason that it should be cited, arbitrarily and disengenuously, to reach a desired result in an Eighth Amendent case.
Scalia ends his dissent by rightly declaring, "To allow lower courts to behave as we do, 'updating' the Eighth Amendment as needed, destroys stability and makes our case law an unreliable basis for the designing of laws by citizens and their representatives, and for action by public officials. The result will be to crown arbitrariness with chaos." And he didn't even yet realize that the Court would so soon thereafter would move from restricting the death penalty to meddling with life without parole.
NOT ONLY CAPITAL PUNISHMENT, BUT RECENT MEDDLING INCLUDES LIFE WITHOUT PAROLE
Terrance Jamar Graham took part in an armed robbery against a barbeque restaurant. Less than 6 months later Graham participated in an armed home invasion robbery, including holding down the homeowner and his friend at gunpoint while the home was ransacked. The prosecutors alleged that later that night the defendant attempted a second robbery. His probation was revoked and he was eventually sentenced to life in prison. Given that Florida had abolished parole he would not have that option. The Supreme Court in the 2009 case of Graham v. Florida ruled that for a juvenile offender to be sentenced to life in prison without the possibility of parole for a nonhomicide crime was unconstitutional. Justice Clarence Thomas ripped into the decision in his dissent:
"Although the text of the Constitution is silent regarding the permissibility of this sentencing practice, and although it would not have offended the standards that prevailed at the founding, the Court insists that the standards of American society have evolved such that the Constitution now requires its prohibition. The news of this evolution will, I think, come as a surprise to the American people. Congress, the District of Columbia, and 37 States allow judges and juries to consider this sentencing practice in juvenile nonhomicide cases, and those judges and juries have decided to use it in the very worst cases they have encountered... I am unwilling to assume that we, as members of this Court, are any more capable of making such moral judgments than our fellow citizens. Nothing in our training as judges qualifies us for that task, and nothing in Article III gives us that authority."This passage from the greatest Justice on the Supreme Court illustrates so well just what is so wrong with the modern Supreme Court.
When a 14-year-old was convicted of capital felony murder and aggravated robbery, the Supreme Court in the summer of 2012 declared in Miller v. Alabama that statutorily mandating the sentence of life imprisonment without the possibility of parole for someone under the age of 18 was unconstitutional. Justice Thomas pointed out in his dissent that the ruling was not "consistent with the original understanding of the Cruel and Unusual Punishments Clause" and thus upsets "the legislatively enacted sentencing regimes of 29 jurisdictions without constitutional warrant." Justice Alito in his dissent recognized the obvious, that "[t]he Court long ago abandoned the original meaning of the Eighth Amendment... Unless our cases change course, we will continue to march toward some vision of evolutionary culmination that the Court has not yet disclosed. The Constitution does not authorize us to take the country on this journey."
CONCLUSION
The Eighth Amendment is, like many others, a perfect example of an abused Constitution. Judges take advantage of a judicial philosophy that gives them the power to reach the result they desire. They want the Constitution to "live" and "evolve," but only in the direction that matches their preference. They pay no heed to the legitimately passed laws of the legislatures. They ignore the Constitution's original meaning. It is time to restore the original Constitution. Thomas Jefferson wrote in 1819, "The constitution...is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please." The Eighth Amendment is an easy example of how true this is.
When it comes to punishments, James Iredell would tell a grand jury in 1791:
[O]ne degree of severity opens and smooths the way for another, till, at length, under the specious appearance of necessary justice, a system of cruelty is established by law. Such a system is calculated to eradicate all the manly sentiments of the soul, and to substitute, in their place, dispositions of the most depraved and degrading kind. It is the parent of pusillanimity. A nation broke to cruel punishments becomes dastardly and contemptible. For, in nations, as well as individuals, cruelty is always attended by cowardice. It is the parent ofslavery. In every government, we find the genius of freedom depressed in proportion to the sanguinary spirit of the laws. It is hostile to the prosperity of nations, as well as to the dignity and virtue of men.The Constitution reflected this idea with its prohibition against cruel and unusual punishments. What those punishments entail must be understood in light of what it meant when that provision became part of the Constitution, as well as the backdrop leading to its inclusion in our nation's charter. This no only includes some of the history in England such as the case of Titus Oates that the Founders certainly were aware of, but the criticism of the Constitution by those who opposed its ratification and demanded a Bill of Rights. This meaning, and not the arbitrary whim of unelected lawyers on the highest court, on the most specious doctrine of a Constitution that evolves according to the standards of decency of five of its members, must prevail if the Constitution is to have any real meaning. And when this begins to once again be the basis for deciding Constitutional cases, we will have restored the rule of law and resurrected the lost Constitution.
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* The famous philosopher John Locke (1632-1704), whose ideas were a precursor to the likes of James Madison, wrote about the death penalty in his "Second Treatise On Government." This excerpt from the treatise is a must-read for those interested in an eloquent and philosophical perspective on the death penalty:
Every man, in the state of nature, has a power to kill a murderer, both to deter others from doing the like injury, which no reparation can compensate, by the example of the punishment that attends it from every body, and also to secure men from the attempts of a criminal, who having renounced reason, the common rule and measure God hath given to mankind, hath, by the unjust violence and slaughter he hath committed upon one, declared war against all mankind, and therefore may be destroyed as a lion or a tyger, one of those wild savage beasts, with whom men can have no society nor security: and upon this is grounded that great law of nature, Whoso sheddeth man's blood, by man shall his blood be shed. And Cain was so fully convinced, that every one had a right to destroy such a criminal, that after the murder of his brother, he cries out, Every one that findeth me, shall slay me; so plain was it writ in the hearts of all mankind.
By the same reason may a man in the state of nature punish the lesser breaches of that law. It will perhaps be demanded, with death? I answer, each transgression may be punished to that degree, and with so much severity, as will suffice to make it an ill bargain to the offender, give him cause to repent, and terrify others from doing the like. Every offence, that can be committed in the state of nature, may in the state of nature be also punished equally, and as far forth as it may, in a commonwealth."
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"Cruel and unusual": are separate and unequal concepts, but are tied together in Amendment VIII. "Cruelty" is in the eye of the beholder, but "Unusual" can be judged against what is "usual" in the society. To deny that a "Death Penalty" is cruel to some is ignoring the broad spectrum of opinions, but to say it is "unusual" is specious and unsupportable.
ReplyDeleteFrom the earliest written histories, we know that taking an innocent life is subject to the harshest punishments, up to and including the taking of the guilty party's own life. And while this may appear "cruel" to many", it is in no way "unusual".
To separate the two concepts is simply judicially irresponsible.
Thanks for the comment once again, James!
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