What Is “Cruel and Unusual”?

Policy Review – Hoover Institution, December 1, 2005

The eighth amendment is a jurisprudential train wreck. Its proudly humane language banning “cruel and unusual punishments” may remain among the Bill of Rights’ most famous sound bites, but nobody today has the faintest clue what it means. The reason is as simple as it is sad: The Supreme Court’s case law has left the amendment without coherent meaning. No principle guides its reach. No methodology solemnly pronounced in any case do the justices predictably follow in the next. A punishment upheld today can be, without alteration, struck down tomorrow with no justice even admitting that his or her mind has changed. The justices no longer even pretend to examine whether a punishment offends the amendment’s textual prohibition. Instead they apply perhaps the single most impressionistic test ever devised by the court: whether the challenged practice has run afoul of “the evolving standards of decency that mark the progress of a maturing society.”Unsurprisingly, nine judges of wildly different politics, temperaments, and backgrounds do not generally agree on the standards or the methodology for assessing society’s maturation, much less its substance. As a consequence, more than two centuries after its incorporation into the Constitution, the amendment has been rendered nothing more than a vehicle to remove from the policymaking arena punitive practices that offend a majority of the court at any moment in time.

The train wreck does not end there. Normally, when the court runs a major doctrinal area off the rails, a cogent line of dissent over time helps rationalize the errant line of cases by offering a more legally faithful, a more constitutionally stable, or simply a more sensible alternative. The Eighth Amendment has not proven so lucky. To be sure, the court’s conservative flank — led by Justice Antonin Scalia — has dissented from its emerging Eighth Amendment jurisprudence and has offered a compelling critique. It has even proposed a principled alternative — at the core of which lies the premise that the amendment’s protections are static and contain no evolutionary dimension whatsoever. As Scalia once poetically declared, “the Constitution that I interpret and apply is not living but dead — or, as I prefer to put it, enduring. It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted.”

In reality, however, this principle is not nearly as self-evident, at least in the context of the Eighth Amendment, as Scalia’s bombastic rhetoric would have one believe. It is, rather, somewhat implausible as a textual matter, uncertain as a historical matter, and utterly at odds not only with the court’s jurisprudence during its recent period of intellectual incoherence but with its entire century-long history of interpreting the amendment altogether. Moreover, Scalia’s reading would, in effect, render a major plank of the Bill of Rights a dead letter that protects Americans only against those punishments that are politically unthinkable anyway. The Eighth Amendment is thus trapped in a shouting match between the entirely inconstant and the most foolish of consistencies.

To read the full paper, click here.

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