University of Illinois College of Law
O R I G I N A L ISM ¶S P E RSE V E R A N C E : T H E I M P L I C A T I O NS O F
T H E C R U E L A N D U N USU A L P U N ISH M E N TS C L A USE
A
F A I N T -H E A R T E D E X C E P T I O N
TO
RICHARD E. NOWAK
I. I N T R O D U C T I O N
When Justice Scalia presented the 1988 William Howard Taft Lecture at the University
of Cincinnati, he greatly contributed to the shift in originalist thinking from the IUDPHUV¶
intentions to the original public meaning of the text.1 This shift symbolized an evolution from
the view of early contemporary originalists like Robert Bork and Raoul Berger.2 Bork and
Berger brought notoriety to the originalist movement by advocating that courts focus on the
fUDPHUV¶ original intentions in response to the ³DFWLYLVW´ decisions of the Warren and Burger
Courts.3 They argued that the Supreme Court had gone too far in reshaping constitutional law by
reviving substantive due process and overextending the protections of the Equal Protection
Clause.4 By looking to original intentions, Bork and Berger were committed to the philosophy
of judicial restraint by limiting the discretion of the judiciary and by instilling a ³requirement of
J.D. 2010, University of Illinois College of Law.
See Randy E. Barnett, 6FDOLD¶V,QILGHOLW\$&ULWLTXHRI)DLQW-Hearted Originalism, 75 U.
CINN. L. REV. 7 (2006); Antonin Scalia, Common-Law Courts in a Civil-Law System : The Role
of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF
INTERPRETATION: FEDERAL COURTS AND THE LAW 38 (Antonin Scalia & Amy Gutmann, eds.,
19³:KDW,ORRNIRULQWKH&RQVWLWXWLRQLVSUHFLVHO\ZKDW,ORRNIRULQDVWDWXWHWKHRULJLQDO
PHDQLQJRIWKHWH[WQRWZKDWWKHRULJLQDOGUDIWVPHQLQWHQGHG´
2
Credit for this movement must also be given to then Attorney General Edwin Meese III who
explicitly embraced looking to the original intentions of the Framers during his tenure under the
Reagan Administration. See Attorney General Edwin Meese III, Speech Before the American
Bar Association (July 9, 1985).
3
Mitchell N. Berman, Originalism is Bunk, 84 N.Y.U. L. REV. 1, 9 (2009). The Bork and
Berger movement was a contemporary originalist movement as originalism had been referenced
years earlier by the Supreme Court. In fact, in United States v. Sprague, the Court emphasized
WKDWWKHJXLGLQJLQWHUSUHWDWLRQSULQFLSOHZDVWKDW³>W@KH&RQVWLWXWLRQZDVZULWWHQWREHXQGHUVWRRG
by the voters; its words and phrases were used in their normal and ordinary as distinguished from
WHFKQLFDOPHDQLQJ´86±32 (1931) (citations omitted).
4
Keith Whittington, The New Originalism, 2 GEO. J.L. & PUB. POL¶Y 599, 601±03 (2004). As
:KLWWLQJWRQH[SODLQV³>D@ERYHDOORULJLQDOLVPZDVDZD\RIH[SODLQing what the Court had done
wrong, and what it had done wrong in this context was primarily to strike down government
DFWLRQVLQWKHQDPHRILQGLYLGXDOULJKWV´ Id. at 601.
1
1
2ULJLQDOLVP¶V Perseverance
MXGLFLDO GHIHUHQFH WR PDMRULWLHV´5
7RGD\ KRZHYHU %RUN DQG %HUJHU¶V original intent
originalism is no longer the predominate originalist theory and KDV EHHQ UHIHUUHG WR DV ³ROG
originalism.´6 Instead, it has been largely replaced by WKH ³QHZ RULJLQDOLVP´²original public
meaning originalism.7
There are several reasons for the shift from original intentions to original public meaning.
Two primary reasons, however, are that the old originalism spawned a great deal of criticism
because the Constitution only became law through the ratification process and because it is easier
to settle on the collective understanding of a provision rather than the subjective intentions of its
drafters.8 Furthermore, whether one seeks to discover the intentions of either the framers or
ratifiers, it is almost impossible to discern an overriding and legitimate consensus as to what a
Constitutional provision meant. As Lawrence Solum has emphasized, the intentional mental
states of the framers and ratifiers in regards to a specific constitutional provision are
³PXOWLWXGLQRXV DQG LQDFFHVVLEOH´9
Besides, we cannot automatically assume that a single
GHOHJDWH¶V UHDVRQ for voting for a specific constitutional provision can be attributed to the
ratifying majority.
5
Whittington, supra note 4, at 602.
Because the prevailing view among originalists is no longer that judges should rely on the
intentions of the Framers, I will follow Stephen Griffin and refer to this type of originalism as
³ROGRULJLQDOLVP´6WHSKHQ0*ULIILQRebooting Originalism, 2008 U. ILL. L. REV. 1185,
1188±89 (2008).
7
See, e.g., RANDY BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF
LIBERTY 104±06 (2004). Barnett emphasizes that requiring judges and legislatures to respect an
independent original meaning of the Constitution is vital because it does not require discerning
WKHRULJLQDOLQWHQWLRQVRIWKRVHZKRZURWHRUUDWLILHGWKHGRFXPHQW,QRWKHUZRUGV³>W@KHSXEOLF
meaning of their words is independent of what particular individuals may have intended when
WKH\ZURWHDQGHQDFWHGWKHP´ Id. at 105.
8
Berman, supra note 3, at 9.
9
Lawrence B. Solum, Semantic Originalism 5 (Illinois Public Law and Legal Theory Research
Paper No. 07-24, 2008). As Solum describes it, such intentions would be multitudinous because
the framers and ratifiers were different and inaccessible because those individuals expected to
engage in constitutional practice would have been unable to determine those intentions
epistemically. Id. Furthermore, Solum emphasizes that it would be impossible to determine a
specific meaning for a given constitutional provision because it would have been necessary for
³DOORIWKHPHPEHUVRIWKH3KLODGHOSKLD&RQYHQWLRQ>WR@KDYHKDGLGHQWLFDOLQWHQWLRQVZLWK
UHVSHFWWRHDFKFODXVH´ Id. at 42.
6
2
Richard E. Nowak
Originalists responded to such criticisms, not by conceding that originalism is a flawed
theory, but by shifting their interpretive focus to the original public meaning of the Constitution
and its amendments. This shift obviated many of the earlier objections because original public
meaning is a more objective inquiry than attempting to discern the subjective intentions of the
founding generation.10 That said, both the old originalism and this so-called ³new originalism´
share a similar foundation²as Solum has stressed, basically all originalists ³DJUHH WKDW WKH
original meaning does have substantial normative force.´11 Stated in another way, originalists
share the idea that the linguistic meaning of the Constitution was fixed at the time of its origin
and that this meaning should be the foundation for constitutional doctrine.12
Despite the shift, original public meaning originalism is not without its share of criticism.
Scholars continue to emphasize that, regardless of the version, originalism is a ³GHDG KDQG´
because it is inherently flawed to interpret the Constitution by exclusively looking to the past.13
Although viewing this ³dead hand´ argument as non-fatal, Keith Whittington recently framed the
objection quite well by stating that ³critics of originalism DUJXH WKDW WKHUH DUH µGHDG KDQG¶
problems related to the authority of the long-dead founders over present political actors and the
SRWHQWLDO XQGHVLUDEOH RXWFRPHV RI VXEVWDQWLYH RULJLQDOLVW LQWHUSUHWDWLRQV RI WKH &RQVWLWXWLRQ´14
On another front, Stephen Griffin has argued that originalists fail to properly consider the
difficulty in passing constitutional amendments and that ³>R@ULJLQDOLVPZKHWKHUROGRUQHZKDV
10
Barnett, supra note 1, at 9 (citing BARNETT, supra note 7, at 1±131 (2001)). For example, in
his seminal article, Paul Brest argued that it is both impractical and impossible to discover and
combine the various intentions of the framers. See Paul Brest, The Misconceived Quest for
Original Understanding, 60 B.U. L. REV. 204 (1980).
11
Barnett, supra note 1, at 11. Justice Scalia has also stressed the difference between
RULJLQDOLVWVDQGQRQRULJLQDOLVWVE\VWDWLQJWKDW³WKH*UHDW'LYLGHZLWKUHJDUGWRFRQVWLWXWLRQDO
interpretation is not that beWZHHQ)UDPHUV¶LQWHQWDQGREMHFWLYHPHDQLQJEXWUDWKHUWKDWEHWZHHQ
RULJLQDOPHDQLQJZKHWKHUGHULYHGIURP)UDPHUV¶LQWHQWRUQRWDQGFXUUHQWPHDQLQJ´6FDOLD
supra note 1, at 38.
12
Solum declares that originalism encompasses a family of theories, but that regardless of the
specifics of an individual theory, that it will affirm two primary theses: (1) Fixation Thesis:
linguistic meaning of a constitutional provision was fixed at the time of origin; and (2)
&RQWULEXWLRQ7KHVLVFRQVWLWXWLRQDOGRFWULQHPXVWEHFRQVLVWHQWZLWKWKHSURYLVLRQ¶VRULJLQDO
meaning. See Lawrence B. Solum, Incorporation and Originalist Theory 2 (Illinois Public Law
and Legal Theory Research Paper Series No. 08-16, 2009).
13
Barnett, supra note 1 at 9; Griffin, supra note 6, at 1218. See also Whittington, supra note 4,
at 605±GLVFXVVLQJWKHSULPDU\FULWLFLVPVRIWKH³GHDGKDQG´REMHFWLRQ
14
Whittington, supra note 4, at 605±06.
3
2ULJLQDOLVP¶V Perseverance
no theoretical resources to cope with . . . historical change.15
To Whittington, however,
historical change should have no impact on interpretative theory and originalism uniquely directs
interpreters to legitimate forms of evidence and argumentation for understanding provisions of
the Constitution and identifies a role for the American judiciary.16
The purpose of this Paper is not to throw another hat in the ring as to whether such
objections are legitimate²that ring is already full of constitutional heavyweights. Instead, this
Paper seeks to address another critique to originalism²a critique that to some undermines the
rule²that divergence from the original public meaning under certain extreme circumstances
leaves originalism as an unprincipled and illegitimate theory of constitutional interpretation and
construction. This criticism came to the forefront after Justice Scalia DGPLWWHGWKDW³LQDFUXQFK
[he] may prove a faint-hearted originalist´17 Regardless of the original meaning of the Eighth
Amendment, he admitted that he could not LPDJLQH ³DQ\ PRUH WKDQ DQ\ RWKHU IHGHUDO MXGJH
XSKROGLQJDVWDWXWHWKDWLPSRVHVWKHSXQLVKPHQWRIIORJJLQJ´18 In response, some scholars have
argued that so-FDOOHG³faint-hearted´ originalism permits a judge to stray from the originalist text
whenever he or she feels like it. Robert Howard and Jeffrey Segal, for example, concluded that
³Justices might speak about folloZLQJDQµRULJLQDOLVW¶MXULVSUXGHQFHEXWWKH\RQO\DSSHDUWRGR
so when arguments about text and intent coincide with the ideological position that they
SUHIHU´19 John Stinneford took a similar view:
Justice Scalia has . . . abandoned any pretext that his approach to the Cruel and Unusual
Punishments Clause is more principled than the evolving standards of decency approach.
15
Griffin, supra note 6, at 1218±GLVFXVVLQJ:KLWWLQJWRQ¶VDUJXPHQWVLQIDYRURIQHZ
originalism from his influential book, KEITH E. WHITTINGTON, CONSTITUTIONAL
INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT AND JUDICIAL REVIEW (1999)).
16
Whittington, supra note 4, at 611 (describing how although an abstract constitutional
SURYLVLRQPD\EHVXEMHFWWR³MXGLFLDOPDQLSXODWLRQ´WKDW³LWVPHDQLQJLVKLVWRULFDOO\
GHWHUPLQHG´
17
Antonin Scalia, Originalism : The Lesser Evil , 57 U. CINN. L. REV. 849, 864 (1988).
18
Id.
19
Robert M. Howard & Jeffrey A. Segal, An Originalist Look at Originalism, 36 LAW & SOC¶Y
REV. 113, 133 (2002) (presenting conclusions based on an analysis of cases from 1979 until
1994); see also Berman, supra note 3, at 92 (describing how colorblindness is only a legitimate
FRQVWLWXWLRQDOSULQFLSOHXQGHU³OLYLQJFRQVWLWXWLRQDOLVP´DQGWKDWRULJLQDOLVPGRHVQRWVXSSRUW
such a principle).
4
Richard E. Nowak
If we are to follow the original meaning of the Clause in most²but not all²cases, how
do we determine which cases get which treatment?20
Indeed, if a so-called originalist may pick and choose when to follow or diverge from the
original public meaning, how is originalism any more principled than a ³OLYLQJ FRQVWLWXWLRQ´
theory of interpretation and construction? Even if Justice Scalia were to limit his divergent
tendencies to extreme cases²say, for example, in situations like the
reinstatement of
pillorying²he is still picking and choosing when to depart from the original public meaning of
the Constitution.
Not surprisingly, both originalist and nonoriginalist scholars have taken
exception to such an approach.
Randy Barnett, for example, has argued that a real originalist would adhere to the
originalist theory regardless of the outcome, DQG ZRXOG QRW ³VKULQN>@ LQ SUDFWLFH IURP WKH
LPSOLFDWLRQVRIDWKHRU\KHVRYRFLIHURXVO\GHIHQGV´21 Accordingly, to Barnett, ³-XVWLFH6FDOLD
LVVLPSO\QRWDQRULJLQDOLVW´22 On the other side of the aisle, Mitchell Berman stresses that there
is a concerning trend in how often self-proclaimed originalists²like Justice Thomas and Justice
Scalia²abandon their originalist values when doing so fits their personal preference.23
Although I agree that these are indeed legitimate criticisms, they emphasize that the problem lies
not with the theory, but with those who have the duty to implement it and actually interpret the
Constitution.
The purpose of this Paper is to argue that a faint-hearted exception to the Cruel and
Unusual Punishments Clause would not undermine the legitimacy of the originalist theory and
that it is a legitimate exercise to permit exceptions in certain extreme cases.24 While adherence
20
John F. Stinneford, 7KH2ULJLQDO0HDQLQJRI³8QXVXDO´7KH(LJKWK$PHQGPHQWDVD%DUWR
Cruel Innovation, 102 NW. U. L. REV. 1739, 1766 (2008). Stinneford, however, emphasizes that
WKH&RXUW¶VHYROYLQJVWDQGDUGVRIGHFHQF\DSSURDFKWRWKH(LJKWK$PHQGPHQWLVDVIODZHGDV
-XVWLFH6FDOLD¶VDSSURDFKEHFDXVHUHFHQWGHFLVLRQVKDYHEHHQ³ZLOGO\LQFRQVLVWHQW´DQGWKH
&RXUW¶VMXULVSUXGHQFHKDV³JRQHRIIWKHUDLOV´ Id. at 1740±42.
21
Barnett, supra note 1, at 13 (discussing objections to Scalia being a faint-hearted originalist).
22
Id.
23
Berman, supra note 3, at 91±93 (discussing how Justice Thomas and Justice Scalia abandoned
originalism to decide the Gratz and Grutter affirmative action cases involving the University of
Michigan).
24
Accordingly, this Paper is limited to a discussion of faint-hearted originalism in the context of
the Eighth Amendment. While critics have emphasized that Justice Scalia, for example, does not
follow originalist principles in regards to other areas of the Constitution, see, e.g., Barnett, supra
5
2ULJLQDOLVP¶V Perseverance
to originalist ideals may be the proper course in the large majority of cases, real world
pragmatism requires room for a narrow exception to Eighth Amendment construction.25 While
this may seem to permit a judge to rely on his own personal beliefs when he feels inclined to do
so, as long as such exceptions are developed and applied consistently on narrow grounds, these
exceptions will provide originalism with additional legitimacy by showing its adaptability.
Accordingly, this Paper will proceed as follows. First, Part II will provide an originalist
framework from which to view the Cruel and Unusual Punishments Clause and will discuss the
implications of the current doctrine of incorporation. Then, Part III will provide a history of the
Clause in both England and the United States and its relation to the English common law and
Part IV will analyze the consequences of actually adhering to the original public meaning.
Finally, Part V will explain why a narrow faint-hearted exception is necessary according to the
ideals of contemporary society.
I I. E ST A B L ISH I N G
AN
O R I G I N A L IST F R A M E W O R K
Justice Scalia, while admitting that he may prove to be a faint-hearted originalist under
certain circumstances, argued that nonoriginalists¶YLHZVare flawed because it is not enough to
claim that one theory is illegitimate without presenting a better alternative.26 Randy Barnett has
taken a similar view and VWDWHG³,WWDNHVDWKHRU\WREHDWDWKHRU\DQGDIWHUDGHFDGHRIWU\LQJ
WKHRSSRQHQWVRIRULJLQDOLVPKDYHQHYHUFRQYHUJHGRQDQDSSHDOLQJDQGSUDFWLFDODOWHUQDWLYH´27
:KLOHWKLVFUHDWLRQRID³KDUGDQGIDVWGLVWLQFWLRQ´EHWZHHQRriginalism and nonoriginalism has
QRWHDWGLVFXVVLQJ6FDOLD¶VIDLOXUHWRDGKHUHWRRULJLQDOLVWSULQFLSOHVLQUHJDUGVWRWKH
Commerce Clause); Berman, supra note 3, at 91±92 (discussing both Justice Scalia and Justice
7KRPDV¶VIDLOXUHWRDGKHUHWRRULJLQDOLVWSULQFLSOHVLQDIILUPDWLYHDFWLRQFDVHVWKLVPaper does
not seek to provide a forum for those objections because such a response would be better suited
for a book.
25
I would like to emphasize that this Paper will only discuss diverging from originalist
SULQFLSOHVLQUHJDUGVWRWKH(LJKWK$PHQGPHQW¶V&UXHODQG8QXVXDO3XQLVKPHQW&ODXVH$V
discussed supra note 24, I am aware that some scholars have argued that Justice Scalia and
Justice Thomas have also diverged in cases involving the Commerce Clause and the Eleventh
Amendment. However, an analysis of those objections is for another time and place.
26
Scalia, supra note 17, at 855.
27
BARNETT, supra note 7, at 92.
6
Richard E. Nowak
been criticized by some scholars,28 the delineation persists in academic circles.29 While Justice
Scalia and Barnett may be correct that nonoriginalists have failed to come up with a unified
theory of their own, such a response does not specifically address the critical assessment that the
tendency of a so-called originalist judge to diverge from original public meaning under certain
circumstances undermines the theory.
The primary point of contention is that even originalists are unwilling to heed the results
that would follow in certain cases. As Justice Scalia openly stated³>L@QLWVXQGLOXWHGIRUP
[originalism] is medicine that seems too VWURQJWRVZDOORZ´30 For this reason, many so-called
originalists would yield to the doctrine of stare decisis to avoid overturning Marbury v. Madison
because the idea of judicial review has been entrenched in our judicial system for over two
centuries.31 Not all originalists feel this way, however, as Barnett, for example, does not agree
that adherence to stare decisis is at all principled EHFDXVHGRLQJVR³SXWVSULRURSLQLRQVRIPHUH
judges above that of the Constitution.´32 Accordingly, because ³WKHUHVXOWVRI[not adhering to
stare decisis in certain cases] seem to [Justice Scalia] too objectionable to countenance,´ he
proves to be unfaithful to the original meaning of the text.33
28
Griffin, supra note 6, at 1192. For early criticisms of this distinction, see David Couzens
Hoy, A Hermeneutical Critique of Originalism/Nonoriginalism Distinction, 15 N. KY. L. REV.
479 (1988), and Lawrence B. Solum, Originalism as Transformative Politics, 63 TUL. L. REV.
1599 (1989).
29
See, e.g., Michael D. Ramsey, Toward a Rule of Law in Foreign Affairs, 106 COLUM. L. REV.
1450, 1473±74 (2006).
30
Scalia, supra note 17, at 861.
31
Id. (arguing that Marbury v. Madison VKRXOGUHPDLQVHWWOHGODZ³HYHQLI3URIHVVRU5DRXO
Berger should demonstrate unassailably that [the Court] got the meaning of the Constitution
ZURQJ´
32
Barnett, supra note 1, at 12. Barnett has also stressed that WKH&RQVWLWXWLRQ¶VVXSHULRULW\DQG
precedence is reflected in the Supremacy Clause. See BARNETT, supra note 7, at 140±41, 144±
)XUWKHUPRUHKHVXSSRUWVKLVWKHRU\ZLWK$OH[DQGHU+DPLOWRQ¶VYLHZWKDW³>Q@ROHJLVODWLYH
act . . . contrary to the ConstitXWLRQFDQEHYDOLG´Id. at 141 (quoting THE FEDERALIST No. 78
(Alexander Hamilton). In the specific context of deciding whether Marbury should be
RYHUWXUQHG%DUQHWWDUJXHVWKDWWKHRULJLQDOLVWPHDQLQJRI³MXGLFLDOSRZHU´LQFOXGHVWKHSRZHUWR
nullify legislation contrary to the Constitution. Barnett, supra note 1, at 12
33
Barnett, supra note 1, at 12±13. Barnett is not alone in his views that stare decisis ³FRUUXSWV
WKHRULJLQDOWKHRU\´0LFKDHO3DXOVHQHPSKDVL]HVWKLVSRLQWHYHQPRUHFOHDUO\E\VWating that
³VWDUHGHFLVLV>ZKLFKLV@XQGHUVWRRGDVDWKHRU\RIDGKHULQJWRSULRUMXGLFLDOSUHFHGHQWVWKDWDUH
FRQWUDU\WRWKHRULJLQDOSXEOLFPHDQLQJLVFRPSOHWHO\LUUHFRQFLODEOHZLWKRULJLQDOLVP´0LFKDHO
Stokes Paulsen, Can Originalism be Reconciled with Precedent?, 22 CONST. COMM. 289, 289
(2005).
7
2ULJLQDOLVP¶V Perseverance
This Paper seeks to address just how hard a pill the original public meaning of the Cruel and
Unusual Punishments Clause would be to swallow and why a narrow faint-hearted exception would
not undermine the theory. To begin the inquiry, it is useful to establish the context in which the
Eighth Amendment was ratified by looking to the common punishment practices in England and
America during the eighteenth century.
While there is no question that our societal views of
punishment have changed in the time since, any faint-hearted exception to the Eighth Amendment
must have its basis in the original public meaning of the Cruel and Unusual Punishments Clause.
A. Looking to the Original Public Meaning
7KH(LJKWK$PHQGPHQWSURYLGHVWKDW³[e]xcessive bail shall not be required, nor excessive
ILQHVLPSRVHGQRUFUXHODQGXQXVXDOSXQLVKPHQWVLQIOLFWHG´34 Although the Supreme Court has
UHOLHG RQ WKH ³HYROYLQJ VWDQGDUGV RI GHFHQF\´ WR LQWHUSUHW WKH &UXHO DQG 8QXVXDO 3XQLVKPHQWV
Clause, Justice Scalia and Justice Thomas have often dissented on grounds that the Court is
ignoring the &ODXVH¶V original public meaning.35 This does not mean, however, that originalist
ideals have only been embodied in dissenting constitutional opinions. To the contrary, just two
terms ago, the Court²led by Justice Scalia²in District of Columbia v. Heller , undertook a
historical analysis to discern the PHDQLQJ RI WKH 6HFRQG $PHQGPHQW DFFRUGLQJ WR LWV ³SXEOLF
XQGHUVWDQGLQJ´DWWKHWLPHRIUDWLILFDWLRQ36 The Court explicitly stated:
>:@HDUHJXLGHGE\WKHSULQFLSOHWKDW³>W@KH&RQVWLWXWLRQZDVZULWWHQWREHXQGHUVWRRGE\
the voters; its words and phrases were used in their normal and ordinary as distinguished
IURPWHFKQLFDOPHDQLQJ´1RUPDOPHDQLQJPD\RIFRXUVHLQFOXGHDQLGLRPDWLFPHDQLQJ
but it excludes secret or technical meanings that would not have been known to ordinary
citizens in the founding generation.37
34
U.S. CONST. amend. VIII.
See, e.g., Roper v. Simmons, 543 U.S. 551, 607±30 (2005) (Scalia, J., dissenting) (stating how
the majority ignored the threshold inquiry of whether mode or act of punishment was considered
cruel and unusual at the time the Bill of Rights was adopted). Justice Thomas joined the dissent
in Roper as well as a similar dissent in Atkins v. Virginia . 536 U.S. 304, 337±40 (2002) (Scalia,
J., dissenting) (arguing that the majority made no pretense in holding that the execution of
mentally retarded offenders violated the Eighth Amendment despite a clear contrary view in
1791).
36
6&WSUHIDFLQJKLVWRULFDODQDO\VLVE\HPSKDVL]LQJWKDWWKLV³sort of
inquiry is DFULWLFDOWRRORIFRQVWLWXWLRQDOLQWHUSUHWDWLRQ´
37
Id. at 2788 (quoting United States v. Sprague, 282 U.S. 716, 731 (1931)); see also Gibbons v.
Ogden, 9 Wheat. 1, 188 (1824).
35
8
Richard E. Nowak
Heller UHIOHFWV-XVWLFH6FDOLD¶VYLHZWKDWa constitutional provision should be interpreted
based on its original public meaning. Accordingly, although I recognize that there are many
variations of originalism, this Paper will proceed by looking at the Eighth Amendment through
an original public meaning lens because this version of originalism currently predominates.38
Therefore, I will use a historical analysis of the Cruel and Unusual Punishments Clause to glean
the original public meaning from the understanding of the voters and ordinary citizens of the
time.39 This does not mean, however, that the original intentions of the framers or ratifiers are
meaningless. As Lawrence Solum has emphasized, the actual gap between original intention and
original public meaning originalism is actually quite narrow²the semantic intentions of the
framers or ratifiers in many cases will point and converge with the original public meaning. 40 As
a consequence, an objective analysis of original public meaning will, by necessity, include
looking to the subjective intentions of the drafters and ratifiers. That being said, before I reach
the ultimate question of the breadth of the Eighth Amendment and the implications of a fainthearted exception, it is first necessary to address to the elephant in the room²should the
prohibitions of the Eighth Amendment even apply to the States?
B. What About Incorporation?
Recognizing that the discussion of incorporation has been the subject of thousands of
pages in books, articles, and other sources, and has been a topic of scholarly discussion for years,
I will address the issue only briefly to stress the difficulty in establishing a consensus about the
meaning of the Fourteenth Amendment. To be clear, by incorporation I am referring to the
³application of the rights established by the doctrines of constitutional law that are associated
with the Bill of Rights as limitations of state power that parallel the limitations these rights
impose on the federal government.´41
Accordingly, only if the Eighth Amendment is
incorporated does its prohibition against cruel and unusual punishments apply to the States.
1. Supreme Court Precedent
Those versed in constitutional law are aware that in 1962 the Supreme Court incorporated
the Eighth Amendment against the States via the Fourteenth Amendment in Robinson v. State of
38
See supra notes 7±9, and accompanying text.
Stated another way, I am treating original public meaning as asking what did the Eighth
Amendment meant to competent speakers of the English language at the time it was adopted.
40
Solum, supra note 12, at 2.
41
Id.
39
9
2ULJLQDOLVP¶V Perseverance
California.42 Still, as Randy Barnett and Michael Paulsen have argued, just because the Court
chose the path of incorporation does not mean it was correct to do so because the idea of ³[s]tare
GHFLVLVFRQWUDGLFWVWKHSUHPLVHRIRULJLQDOLVP´43 Similar to its decisions in which it incorporated
other amendment based rights,44 the Court in Robinson did not provide a constitutional basis for
its decision to incorporate the Cruel and Unusual Punishments Clause. In fact, even the dissent
did not actually address the constitutional merit of incorporation²Justice White instead argued
that the criminalization of addiction was not a cruel and unusual punishment.45 As a result, all
subsequent Supreme Court decisions regarding the Cruel and Unusual Punishments Clause have
applied to both federal and state laws. This is important because if the Court was wrong and the
original public meaning of the Fourteenth Amendment did not include incorporating the Bill of
Rights, then a Supreme Court based faint-hearted exception would only be controlling in regards
to laws passed by Congress
2. Controversy over Incorporation Doctrine
At the outset, I must note that I am not seeking to definitively answer whether the Cruel
and Unusual Punishments Clause should have been incorporated against the States because that
would require significant more space that I have allotted here.
Instead, I will provide an
overview of the existing incorporation discussion to leave open the possibility that the
incorporation of the Cruel and Unusual Punishments Clause cannot be justified under the
original public meaning of the Fourteenth Amendment.
42
370 U.S. 660, 667 (1962) (incorporating the Eighth Amendment by holding that a state law
criminalizing addiction to illegal drugs and not for the actual illegal behavior was a cruel and
unusual punishment in violation of the Fourteenth Amendment). Although not stated in the
majority opinion, incorporation, like it had been for other rights embodied in the first eighth
amendments, was via the Due Process clause. See id. at 675 (Douglas, J., concurring) (Cruel and
8QXVXDO3XQLVKPHQWFODXVH³DSSOLFDEOHWRWKH6WDWHVE\UHDVRQRIWKH'XH3rocess Clause of the
)RXUWHHQWK$PHQGPHQW´
43
Paulsen, supra note 33, at 289. See also supra notes 32±33 and accompanying text.
44
See, e.g.*LWORZY1HZ<RUN86³[W]e may and do assume that
freedom of speech and of the press-which are protected by the First Amendment from
abridgment by Congress-DUHDPRQJWKHIXQGDPHQWDOSHUVRQDOULJKWVDQGµOLEHUWLHV
SURWHFWHGE\
WKHGXHSURFHVVFODXVHRIWKH)RXUWHHQWK$PHQGPHQWIURPLPSDLUPHQWE\WKH6WDWHV´
45
Robinson, 370 U.S. at 689 :KLWH-GLVVHQWLQJ³,IDLOWRVHHZK\WKH&RXUWGHHPVLWPRUH
appropriate to write into the Constitution its own abstract notions of how best to handle the
narcotics problem, for it obviously cannot match either the States or Congress in expert
undeUVWDQGLQJ´
10
Richard E. Nowak
For our purposes here, I believe it best to being with the recent debate before the Court
this term in McDonald v. City of Chicago.46 While McDonald has not yet been decided, the
petitioners urged the Court to toss years of precedent aside and stressed almost exclusively47 that
the Second Amendment should be incorporated via the Privileges and Immunities Clause.48
While the Supreme Court has uniformly relied on the Due Process Clause of the Fourteenth
Amendment for incorporation since deciding the Slaughter-House Cases in 1873,49 the idea that
the Bill of Rights should be incorporated by the Privileges and Immunities Clause has been
urged for years.50 Even so, there is still a debate as to whether the Fourteenth Amendment was
ever intended, or even understood, to apply the Bill of Rights against the States. Some scholars
46
130 S. Ct. 48 (2009) (granting writ of certiorari).
Petitioners did this both their merit briefs and during oral argument. See 3HWLWLRQHUV¶%ULHI
130 S. Ct. 48 (2009); Argument in McDonald v. City of Chicago (March 2, 2010), available at
http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1521.pdf.
48
7KH3ULYLOHJHVDQG,PPXQLWLHV&ODXVHSURYLGHVWKDW³1R6WDWHVKDOOPDNHRUHQIRUFHDQ\ODZ
which shall abridge the privileges or immunities of citizens of the United StateV´U.S. CONST.
amend. XIV, § 1, cl. 2.
49
83 U.S. 36 (1873) (extremely restricting the privileges and immunities to those conferred by
virtue of the federal United States citizenship to all individuals of all states within it).
50
Although the Court definitively held that the Bill of Rights did not apply to the States in
Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833), many scholars and even judges have since
concluded that the Fourteenth Amendment was meant to overturn that decision. In fact, Justice
Black, in his dissent in Adamson v. California emphatically stated:
47
My study of the historical events that culminated in the Fourteenth Amendment, and the
expressions of those who sponsored and favored, as well as those who opposed its
submission and passage, persuades me that one of the chief objects that the provisions of
the Amendment's first section, separately, and as a whole, were intended to accomplish
was to make the Bill of Rights, applicable to the states. With full knowledge of the import
of the Barron decision, the framers and backers of the Fourteenth Amendment
proclaimed its purpose to be to overturn the constitutional rule that case had announced.
332 U.S. 46, 71 (1947) (Black, J., dissenting).
Even among those who believe that the Privileges and Immunities clause was meant to
incorporate certain rights, there is disagreement as to whether every clause in amendments I to
XIII should be incorporated and if the Fourteenth Amendment secured additional rights.
Compare MICHAEL KENT CURTIS, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT
AND THE BILL OF RIGHTS (1990) (total incorporation), with AKHIL REED AMAR, THE BILL OF
RIGHTS: CREATION AND RECONSTRUCTION 174±75, 179±80 (2000) (refined incorporation), and
ARNOLD T. GUMINSKI, THE CONSTITUTIONAL RIGHTS, PRIVILEGES, AND IMMUNITIES OF THE
AMERICAN PEOPLE (2009) (selective incorporation).
11
2ULJLQDOLVP¶V Perseverance
have suggested that the answer is unclear,51 DV WKH OHJLVODWLYH KLVWRU\ VXSSRUWV ³QR IHZHU WKDQ
IRXU LQWHUSUHWDWLRQV´ RI WKH 3ULYLOHJHV DQG ,PPXQLWLHV &ODXVH52 Still others, like Akhil Amar,
argue that the Privileges and Immunities Clause was meant to ensure the rights or freedom of
individuals, thereby only partially incorporating the Bill of Rights, but also protecting other noncodified rights.53 There is even less support for incorporation under the Due Process Clause of
the Fourteenth Amendment because even proponents of incorporation have taken an indirect
approach and argued that regardless of whether the Due Process Clause is the correct avenue,
other provisions are suited for the job.54
While it is almost certain that the Supreme Court will not change its course from the Due
Process Clause to the Privileges and Immunities Clause for the purposes of incorporation, 55 the
foregoing discussion underscores that there is still an ongoing debate, even among originalists, as
to whether the Bill of Rights should be incorporated against the States at all. Therefore, while I
do not resolve the question, I leave open the possibility that adherence to the original public
meaning of the Fourteenth Amendment ZRXOG VHYHUHO\ OLPLW WKH 6XSUHPH &RXUW¶V DELOLW\ WR
51
See, e.g., Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2
6WDQ/5HYGLVFXVVLQJ-XVWLFH%ODFN¶VFRQWHQWLRQWKDW6HFWLRQRIWKH
Fourteenth Amendment was intended and understood incorporate the first Eighth Amendments
DQGFRQFOXGLQJWKDW³WKHUHFRUGRIKLVWRU\LVRYHUZKHOPLQJO\DJDLQVWKLP´see also Brest, supra
note 10, at 224, 232±33 (discussing how incorporation is difficult to justify under an originalist
theory).
52
David P. Currie, The Reconstruction Congress, 75 U. CHI. L. REV. 383, 406 (2008). These
four theories include: (1) authorizing Congress to enforce the Privileges and Immunities Clause
in Article IV; (2) forbid discrimination between citizens with respect to fundamental rights; (3)
establish a basis set of rights that all citizens must enjoys; and (4) make the Bill of Rights
applicable to the States. Id.
53
See Akhil Reed Amar, Panel VI: The Original Meaning of the Fourteenth Amendment: Did
the Fourteenth Amendment Incorporate the Bill of Rights Against States?, 19 HARV. J. L. & PUB.
POL¶Y 443, 445±46 (1996) (arguing that drafters of Fourteenth Amendment used phrase
³SULYLOHJHVDQGLPPXQLWLHV´WRPHDQ³pretty much the rights in the Bill of Rights and
elsewhere²QRWRQO\WKH%LOORI5LJKWVQRUHYHU\WKLQJLQWKH%LOORI5LJKWV´
54
See, e.g., ELLEN FRANKEL PAUL & HOWARD DICKMAN, LIFE, LIBERTY, AND THE FUTURE OF
CONSTITUTIONAL DEVELOPMENT VWDWLQJWKDWHYHQLIWKH'XH3URFHVV&ODXVH³LVLOOILWWHGIRULQFRUSRUDWLRQ>R@WKHUDYHQXHVRILQFRUSRUDWLRQUHPDLQ´
55
For example, even Justice Scalia bucked the notion of changing incorporation from
VXEVWDQWLYHGXHSURFHVVWRSULYLOHJHVDQGLPPXQLWLHV$WRQHSRLQWKHDVNHG3HWLWLRQHU¶VFRXQVHO
³ZK\DUH\RXDVNLQJXVWRRYHUUXOH\HDUVRISULRUODZZKHQ-- when you can reach your
result under substantive due -- ,PHDQ\RXNQRZXQOHVV\RX¶UHEXFNLQJIRUD-- a place on some
ODZVFKRROIDFXOW\´See Argument in McDonald v. City of Chicago (March 2, 2010), at 6±7,
available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1521.pdf.
12
Richard E. Nowak
restrict the States under the Cruel and Unusual Punishments Clause. For now, however, we must
move on to the Clause itself.
I I I. T H E H IST O R Y
OF THE
C RUE L
AND
U N USU A L P U N ISH M E N TS C L A USE
In eighteenth century England, an offender convicted of certain offenses could be, by
law, subjected to public disembowelment or even be burned alive.56 In these situations, capital
punishment by itself was not enough and it was deemed necessary to also inflict pain or disgrace.
For example, an offender convicted of high treason would have been punished by being
emboweled alive, beheaded, and then quartered in some cases.57 In the case of lesser crimes,
some offenders were still subjected to mutilation, dismemberment, whipping, or hard labor.58
While not all of the English traditions carried over to the United States, the colonial view of
punishment still embraced harsh penalties for even minor crimes.59 And, it is in this context with
which the original public meaning of the Cruel and Unusual Punishment Clause emerges.
A. History of Punishment in England and the United States
When the Bill of Rights was ratified in 1791, there was already a wide variety of
punishments in common use, including some which now seem incredibly harsh. This, however,
did not bother William Blackstone because, despite the severity of punishments, under English
law every punishment was ³ascertained for every offence as the law had forehand ordained, not
OHDYLQJDQRIIHQGHU¶VIDWHWRWKHGHFLVLRQRIDMXGJHRUMXU\´60 7R%ODFNVWRQH³LIMXGJPHQWV
were to be the private opinions of the judge, men would then be slaves to their magistrates; and
would live in society, without knowing exactly the conditions and obligations which it lays under
56
Stinneford, supra note 20, at 1742 (citing 4 WILLIAM BLACKSTONE, COMMENTARIES *376±
7KLVZDVQRWRYHUO\SUREOHPDWLFWR%ODFNVWRQHKRZHYHUDVKHVWDWHGWKDWDV³>G@LVJXVWLQJ
DVWKLVFDWDORJXH>RISXQLVKPHQWV@PD\VHHP³LWZLll afford pleasure to an English reader, and do
honour to the English law, to compare it with that shocking apparatus of death and torment, to be
PHWZLWKLQWKHFULPLQDOFRGHVRIDOPRVWHYHU\RWKHUQDWLRQLQ(XURSH´BLACKSTONE, supra, at
*377.
57
BLACKSTONE, supra note 56, at *376. Females convicted of treason, however, were instead
burned alive. Id.
58
Id. at *377.
59
For example, it was common to publicly whip even children for minor offenses such as petty
thievery and both women and men were subject to pillory and other tortures. CHARLES
MANFRED THOMPSON, HISTORY OF THE UNITED STATES: POLITICAL, INDUSTRIAL, SOCIAL 44±45
(1917).
60
BLACKSTONE, supra note 56, at *377.
13
2ULJLQDOLVP¶V Perseverance
WKHP´61 For while this would stifle hopes of immunity or mitigation, it would also prevent
RSSUHVVLRQDQGFULPLQDOVFRXOGWKHQ³UHDGWKHLUFHUWDLQFRQVHTXHQFHVLQWKDWODZ´62 Even
Blackstone had his limits, however, and in a criticism relevant to the Eighth Amendment,
emphasized his disdain for Parliament deviating from the long standing common law to convert
over one hundred and fifty crimes into capital offenses.63
Similar to England, in the late eighteenth century offenders in America were sentenced to
death for a wide array of crimes64 and were sentenced to public flogging, pillorying, and
mutilation for others.65 Despite the barbarity of these crimes, during the Massachusetts ratifying
convention Abraham Holmes worried that the unamended Constitution did not restrain Congress
³IURP inventing the most cruel and unheard-RISXQLVKPHQWV´DQGWKDW³UDFNVDQGJLEEHWVPD\EH
DPRQJVWWKHPRVWPLOGLQVWUXPHQWVRIWKHLUGLVFLSOLQH´66 The basis for his outcry was not that a
constitutional amendment was needed to outlaw existing punishments, but to prevent Congress
from coming up with novel ones. Furthermore, according to Stuart Banner, the most widely held
view at the time of the Cruel and Unusual Punishments Clause¶VDGRSWLRQ ZDVWKDW³WKHUHZHUH
certain ways of punishing crime that were so painful or otherwise oppressive as to be out of
ERXQGV´67 However, Banner also admits that another common view was that cruel and unusual
referred to punishments that were unauthorized by law and not within the power of a court to
impose.68 As the subsequent sections will demonstrate, there is evidence supporting both of
these views, but neither understanding was developed solely based on late eighteenth century
61
Id.
Id. at *377±78. The exception to this rule was that the courts in certain cases had the
discretionary ability to decide the amount of a fine or length of imprisonment, however, the
³JHQHUDOQDWXUHRIWKHSXQLVKPHQW´ZDVRIWHQIL[HGDQGGHWHUPLQDWHLQPRVWFDVHV Id. at *378.
63
Id. at *4.
64
See, e.g., Act of April 30, 1790, 1 Stat. 112 (setting forth a sentence of death as mandatory for
a wide array of felonies).
65
Stinnerford, supra note 20, at 1742 (citing LAWRENCE M. FRIEDMAN, CRIME AND
PUNISHMENT IN AMERICAN HISTORY 40 (1993)).
66
STUART BANNER, THE DEATH PENALTY: AN AMERICAN HISTORY 233 (2002) (emphasis
added).
67
Id. Banner comes to this conclusion based on his belief that there is the greatest amount of
surviving evidence relating to that view.
68
Id. at 232±33. This view was also held by Supreme Court Justice James Iredell, who stated in
WKDWWKH&UXHODQG8QXVXDO3XQLVKPHQWV&ODXVHRIWKH(QJOLVK%LOORI5LJKWV³ZHQWWRDQ
DEXVHRISRZHULQWKH&URZQRQO\EXWZHUHQHYHULQWHQGHGWROLPLWWKHDXWKRULW\RI3DUOLDPHQW´
Id. (citation omitted).
62
14
Richard E. Nowak
developments because WKH SKUDVH ³FUXHO DQG XQXVXDO SXQLVKPHQW´ KDG H[LVWHG since the
seventeenth century.
B. 7KH2ULJLQVRIWKH3KUDVH³&UXHODQG8QXVXDO3XQLVKPHQWs´
The framers and ratifiers of the Constitution create the Eighth Amendment out of whole
cloth. In fact, the English Bill of Rights, which were signed into law by King William III in
1689, specifically SURYLGHG WKDW ³H[FHVVLYH EDLO RXJKW QRW WR EH UHTXLUHG QRU H[FHVVLYH ILQHV
imposed, nor cruel and unusual SXQLVKPHQWV LQIOLFWHG´69
This original cruel and unusual
punishments clause was a response to the sentencing practices of the royal judges during the
reign of King James II70 as there had been ³XQSUHFHGHQWHGSURFHHGLQJVLQWKHFRXUWRIWKHNLQJ¶V
EHQFK´71 In particular, Lord Chief Justice Jeffreys was widely accused of inventing special
SHQDOWLHVIRUWKH.LQJ¶VHQHPLHVWKDWZHUHQRWDXWKRUL]HGE\VWDWXWHRUWKHFRPPRQODZ 72 It was
not the seriousness of the punishments, but the arbitrary departure from standard practice that
was deemed problematic.73 Furthermore, the actual methods of the punishment did not cause the
outcry but their extreme and excessive nature.74 While severe floggings and life imprisonment
were common punishments for certain offenses, they were considered ³FUXHO´LQWKHFDVHRI7LWXV
69
70
71
72
73
The English Bill of Rights, 1689 § 10.
Stinneford, supra note 20, at 1748.
BLACKSTONE, supra note 56, at 379.
Harmelin v. Michigan, 501 U.S. 957, 968 (1991)
The English Bill of Rights state this explicitly in a prefatory paragraph:
Whereas the late King James the Second, . . . did endeavour to subvert and extirpate the
protestant religion, and the laws and liberties of this kingdom . . . by assuming and
exercising a power of dispensing with and suspending laws, and the execution of laws,
without consent of parliament . . . and excessive bail hath been required of persons
committed in criminal cases, to elude the benefit of the laws made for liberty of the
subject . . .
And excessive fines have been imposed; and illegal and cruel punishments inflicted . . .
All of which are utterly and directly contrary to the known laws and statutes, and freedom
of this realm.
The English Bill of Rights, 1869, reprinted in JOSEPH ANTHONY MELUSKY & KEITH A. PESTO,
CRUEL AND UNUSUAL PUNISHMENT: RIGHTS AND LIBERTIES UNDER THE LAW 203 (2003). As you
PD\KDYHQRWLFHGWKHSUHIDWRU\SDUDJUDSKXVHVWKHODQJXDJH³LOOHJDODQGFUXHOSXQLVKPHQWV´
ZKLOHWKHDFWXDO%LOORI5LJKWVXVH³FUXHODQGXQXVXDOSXQLVKPHQWV´$WOHDVWRQHGUDIWHURIWKH
(QJOLVK%LOORI5LJKWVODWHUVWDWHGWKDWWKHILQDOSKUDVHRORJ\LQFOXGLQJWKHZRUG³XQXVXDO´ZDV
the result of simple chance and sloppy draftsmanship. J. SOMERS, A VINDICATION OF THE LATE
PARLIAMENT OF ENGLAND 3 (1690).
74
LEONARD W. LEVY, ORIGINS OF THE BILL OF RIGHTS 237±38 (2001).
15
2ULJLQDOLVP¶V Perseverance
Oates, a clergyman convicted of perjury resulting in the death of fifteen innocent people, because
RIWKHFRXUW¶VZLOOLQJQHVVWRJRDERYHZKDWZDVSHUPLWWHGE\ODZDQGDSSO\WKHSXQLVKment so
excessively.75 As one commentator VWDWHG ³>L@Q WKH FRQWH[W RI WKH 2DWHV¶ FDVH µFUXHO DQG
XQXVXDO¶ VHHPV WR KDYH PHDQW VHYHUH SXQLVKPHQW XQDXWKRUL]HG E\ VWDWXWH DQG QRW ZLWKLQ WKH
MXULVGLFWLRQRIWKHFRXUWWRLPSRVH´76
The SKUDVH³cruel and unusual punishments´ was widely copied in American prior to the
ratification of the Constitution and the Bill of Rights. In fact, six of the first thirteen States
constitutionally prohibited the imposition of cruel and unusual punishments, while a seventh did
so statutorily.77 Despite these provisions, punishments in American remained harsh, although
slightly more lenient than in England.78
Whipping continued to be the most common
punishment and other humiliating punishments like the ducking stool, the pillory, and other
public penances were imposed regularly.79 Despite the widespread usage of these punishments,
some States did explicitly require that criminal punishments imposed be proportionate to the
offense committed.80
When it came time for the States to ratify the Constitution, there was a strong support for
an amendment prohibiting cruel and unusual punishments because there was worry that Congress
would, in the future, prescribe tortures, barbarous punishments, and excessive fines.81 Fearing a
congressional imposition of such penalties, the anti-federalists, led by Patrick Henry, and several
of the ratifying States, recommended an amendment mirroring the language from the English
Bill of Rights.82 As discussed above, the outspoken fear was that Congress would impose these
types of punishment in the future²the sentiment was not that protection was needed against
75
)RUH[DPSOH2DWHV¶SXQLVKPHQWZDVGHHPHG³FUXHO´HYHQWKRXJKWKHDFWXDOSXQLVKPHQWV
inflicted on him were common both before and after the adoption of the Bill of Rights. After
being convicted of perjury Oates was sentenced to be whipped over a four mile journey from
Aldgate to Tyburn, then to be imprisoned for life, and to be pilloried four times annually. Id.
76
Anthony F. Granucci, ³1RU&UXHODQG8QXVXDO3XQLVKPHQWV,QIOLFWHG´ The Original
Meaning, 57 CAL. L. REV. 839, 859 (1969).
77
LEVY, supra note 74, at 238.
78
Id. (discussing how the imposition of mutilation was rare in American and the punishment of
being burned at the stake for witchcraft gave way to hanging instead).
79
Id.
80
Id.
81
Id.
82
These States included Pennsylvania, North Carolina, New Jersey, and Rhode Island. Id. at
239.
16
Richard E. Nowak
punishments already imposed by the States. That being said, such worries and recommendations
do not tell the entire story because despite the (LJKWK $PHQGPHQW¶VORQJ H[LVWHQFH it remains
difficult to discover a single widely-held view of the Eighth Amendment, let alone a unified one.
I V . T H E O R I G I N A L P UB L I C M E A N I N G
OF THE
C RU E L
AND
U N USU A L P U N ISH M E N TS C L A USE
In the first volume of his Commentaries, Blackstone maintained WKDW ³>Z@RUGV DUH
JHQHUDOO\ WR EH XQGHUVWRRG LQ WKHLU XVXDO DQG NQRZQ VLJQLILFDWLRQ´83
This statement is
particularly relevant to the task at hand because we are seeking to determine the meaning of the
SKUDVH³FUXHODQGXQXVXDOSXQLVKPHQWV´DVLWZRXOGKDYHEHHQXQGHUVWRRGin 1791. Therefore,
we are seeking to answer the question: How would the SKUDVH³FUXHODQGXQXVXDOSunishments´
KDYH ³been understood by a competent speaker of American English at the time it was
DGRSWHG"´84
$7KH6XSUHPH&RXUW¶V$WWHPSWDW'LVFHUQLQJthe Original Public Meaning
Despite the Cruel and Unusual Punishments &ODXVH¶V storied history in the years
following the passage of the English, and then American, Bill of Rights, for the most part
scholars and judges have failed to actually discern its original public meaning. The Supreme
Court, for example, has frequently disregarded the necessity of such an inquiry and has instead
stated WKDWDQ\LQWHUSUHWDWLRQRIWKH(LJKWK$PHQGPHQW³must embrace and express respect for
WKHGLJQLW\RIWKHSHUVRQ´85 Although this seems like a laudable interpretive goal, that does not
mean that such a reading is justified by the original public meaning of the Eighth Amendment.
On the other hand, even those seeking to incorporate an originalist interpretation often
perform an incomplete analysis.
As John Stinneford demonstrated in a recent Article,
originalists and nonoriginalists alike KDYH ³FKRVHQ WR LJQRUH WKH ZRUG µXQXVXDO¶ DQG KDYH WKXV
treated the Cruel and Unusual Punishments Clause as though it embodies a vague and abstract
PRUDO SULQFLSOH µ'RQ¶W EH &UXHO¶´86 Justice Scalia has also failed to adequately consider the
original meaning of the word of ³XQXVXDO´ by stating in Harmelin v. Michigan that the word
merely refers to punishments that are not ³UHJXODUO\RUFXVWRPDULO\HPSOR\HG´87 In doing so, he
disregarded the English iQIOXHQFH LQKHUHQW LQ WKH FODXVH¶V ODQJXDJH DQG KLV RQO\ DVVHUWHG
83
1 WILLIAM BLACKSTONE, COMMENTARIES *59±61 (1803).
Solum, supra note 9, at 51.
85
Kennedy v. Louisiana, 128 S. Ct. 2641, 2650 (2008).
86
Id. at 1748±49.
87
Harmelin v. Michigan, 501 U.S. 957, 976 (1991) (citations omitted); see also Stinneford,
supra note 20, at 1763±64.
84
17
2ULJLQDOLVP¶V Perseverance
justification for doing so was that federal punishments in America, unlike those in England, were
defined by statute and not the common law.88 As a result, Stinneford argues that Justice Scalia
³HVFKHZ>ed@ DQ\ KLVWRULFDO DQDO\VLV RI WKH IRXQGLQJ JHQHUDWLRQ¶V DFWXDO XQGHUVWDQGLQJ RI WKH
ZRUGµXQXVXDO¶DQGUHOLH>G@VROHO\RQDEVWUDFWORJLF´89
This is not to say that the other Justices have been more successful in ascertaining the
original public meaning of the Cruel and Unusual Punishments Clause. For the most part, the
Court has not even attempted such a historical analysis, and for the past half century, has
interpreted the Eighth Amendment based on contemporary ideals90 and dictated that its decisions
³PXVWHPEUDFHDQGH[SUHVVUHVSHFWIRUWKHGLJQLW\RIWKHSHUVRQDQGWKHSXQLVKPHQWRIFULPLQDOV
PXVWFRQIRUPWRWKDWUXOH´91 Because the Court has left us with an incomplete framework from
which to ascertain the implications of a faint-hearted Eighth Amendment exception, the sections
below will seek to fill in the gap.
B. What ³&UXHODQG8QXVXDO´ Meant Historically
The Eighth Amendment was ratified during an era in which many punishments that are
no longer in use were the norm and there was a fear that, without an amendment, Congress
would institute novel forms of barbaric punishment. This context is relevant because to validly
ascertain the original public meaning requires a determination as to how the phrase and its words
³ZRXOGKDYHEHHQXQGHUVWRRGE\ D hypothetical, objective, reasonably well-informed reader of
those words and phrases, in context, at the time they were adopted, and within the political and
88
Harmelin86DWVWDWLQJWKDWRQFHWKHZRUGFUXHOLV³>Z@UHQFKHGRXWRILWVFRPPRQ
ODZFRQWH[W>LW@FRXOGKDUGO\PHDQ³FRQWUDU\WRODZ´6WLQQHIRUGsupra note 20, at 1763±64
(stressing how Justice Scalia simply abandoned any attempt to actually discern if the founding
generations of Americans shared the same understanding as their English counterparts).
89
Stinneford, supra note 20, at 1764.
90
This ideal was actually first emphasized by the Court in Weems v. United States, when it held
that helGWKDWWKHSURKLELWLRQDJDLQVWFUXHODQGXQXVXDOSXQLVKPHQW³LVQRWIDVWHQHGWRWKH
REVROHWHEXWPD\DFTXLUHPHDQLQJDVSXEOLFRSLQLRQEHFRPHVHQOLJKWHQHGE\DKXPDQHMXVWLFH´
217 U.S. 349, 378 (1910). Forty-eight years later, Chief Justice Warren used this principle to
HVWDEOLVKWKHFRQWHPSRUDU\VWDQGDUGWKDWWKH(LJKWK$PHQGPHQWPXVW³PXVWGUDZLWVPHDQLQJ
IURPWKHHYROYLQJVWDQGDUGVRIGHFHQF\WKDWPDUNWKHSURJUHVVRIDPDWXULQJVRFLHW\´7URSY
Dulles, 356 U.S. 86, 100±01 (1958). The evolving standards of decency remains the standard
framework for Eighth Amendment decisions even today. See, e.g., Kennedy v. Louisiana, 128 S.
Ct. 2641, 2649 (2008) (quoting the Trop standard).
91
Kennedy, 128 S. Ct. at 2649.
18
Richard E. Nowak
linguistic community in which they were adopted´92 That being said, our ultimate goal is to
determine the OLQJXLVWLFPHDQLQJRIWKHSKUDVH³FUXHODQGXQXVXDOSXQLVKPHQWV´²context alone
is not dispositive. Although it may seem counterintuitive, I will begin with a historical analysis
of the word ³XQXVXDO´ EHFDXVH LW KDV UHFHLYHG OLWWOH DWWHQWLRQ E\ FRXUWV DQG VFKRODUV RYHU WKH
\HDUVUHODWLYHWRWKHZRUG³FUXHO´
³8QXVXDO´KDGD'LVWLQFW0eaning
This past year, John Stinneford did the legal community a great favor by providing an indepth historical analysis of the original public meaning of the word ³unusual´ in the Cruel and
Unusual Punishments Clause. 6WLQQHIRUGUHFRJQL]HGWKDWGHVSLWHWKHSURKLELWLRQDJDLQVW³FUXHO´
DQG ³XQXVXDO´ SXQLVKPHQWV WKDW both originalists and nonoriginalists have generally read the
ZRUG³XQXVXDO´RXWRIWKH(LJKWK$PHQGPHQWbecause it seems too vague to play a significant
UROH LQ GHILQLQJ WKH DPHQGPHQW¶V parameters.93 Even when the Supreme Court has given lip
VHUYLFHWRWKHIDFWWKDW³FUXHO´DQG³XQXVXDO´PHDQGLfferent things, it has not actually parsed out
the differences, but applied allegedly objective tests instead. In practice, the Court typically
compares the punishment imposed with the crime committed and decides whether the
punishment is ³cruel.´ In other cases, the Court will look for a trend among the States to
determine if a punishment LV³XQXVXDO´94 While this may be fine under a ³OLYLQJFRQVWLWXWLRQ´
approach to constitutional interpretation and construction, it permits the Justices to actively
rewrite the meaning of constitutional amendments.
6WLQQHIRUG¶VSULPDU\FRQFOXVLRQLQDQDO\]LQJWKHRULJLQDOSXEOLFPHDQLQJRI³XQXVXDO´is
WKDWLWPHDQW³FRQWUDU\WRORQJXVDJH´ within the context of the Eighth Amendment.95 While the
word unusual also had an everyday meaning,96 it was PHDQWDVD³WHUPRIDUW97 within the Cruel
92
Vasan Kesavan & Michael Stokes Paulsen, 7KH,QWHUSUHWLYH)RUFHRIWKH&RQVWLWXWLRQ¶V6HFUHW
Drafting History, 91 GEO. L.J. 1113, 1132 (2003). Even nonoriginalists argue a plausible theory
of constitutional interpretation must make some appeal to understanding the Constitution in a
historical context. See, e.g., Griffin, supra note 6, at 1193.
93
See Stinneford, supra note 20, at 1767.
94
See, e.g., Roper v. Simmons, 543 U.S. 551, 568 (2005) (capital punishment limited to those
³PRVWGHVHUYLQJRIH[HFXWLRQ´²juveniles do not qualify²and national consensus existed
against the juvenile death penalty).
95
Stinneford, supra note 20, at 1767.
96
'XULQJERWKWKHVHYHQWHHQWKDQGHLJKWHHQWKFHQWXU\WKHZRUG³XQXVXDO´KDGDQHYHU\GD\
PHDQLQJVLPLODUWRWRGD\LQWKDWLWFRPPRQO\PHDQW³UDUH´³XQFRPPRQ´RU³RXWRIWKH
RUGLQDU\´)RUH[DPSOHWKH2[IRUG(QJOLVK'LFWLRQDU\SURYLGHVWKHIROORZLQJH[Dmple from
19
2ULJLQDOLVP¶V Perseverance
and Unusual Punishments Clause by referring to government practices that were contrary to
µORQJXVDJH¶RUµLPPHPRULDOXVDJH¶´98 As a result, WKHSKUDVH³FUXHODQGXQXVXDOSXQLVKPHQWV´
did not have conventional semantic meaning merely based on the general definition of the words
FRPSRVLQJLW,QVWHDGWKHZRUG³XQXVXDO´KDGDGLVWLQFWWHFKQLFDOPHDQLQJZKHQLQFRUSRUDWHG
into the Eighth Amendment.
Although I will not completely rehDVK 6WLQQHIRUG¶V KLVWRULFDO DQDO\VLV KHUH , GR IHHO LW
ZRUWKZKLOH WR DGGUHVV WKH VKRUWFRPLQJV LQ -XVWLFH 6FDOLD¶V FRQFOXVLRQV IURP Harmelin v.
Michigan. As discussed above WKH SULPDU\ SUREOHP ZLWK -XVWLFH 6FDOLD¶V DQDO\VLV LV that he
simply assumes that WKH ZRUG ³XQXVXDO´ ZRXOG QRW KDYH WKH VDPH PHDQLQJ LQ $PHULFD DQG
England because punishments in America were defined by statute and not the common law.
This, however, ignores the reality that the eighteenth century American legal system had been
heavily influenced by English law as well as the teachings of Sir Edward Coke, perhaps the most
important common law jurist in English history.99
While &RNH¶VERG\RIZRUNUHODWHGWR(QJOLVKFRPPRQODZWKH$PHULFDQOHJDOV\VWHP
of the eighteenth century cannot be severed as easily as Justice Scalia implies. )RU &RNH¶V
writings had a profound influence on both English and American law up through the early
nineteenth century²this despite his death two centuries earlier.100 In fact, one of his primary
contributions to American constitutional law was the idea that a fundamental law was binding on
XVDJHIURP³,UHWXUQHGWRP\%RRNLQD6LWXDWLRQTXLWHXQXVXDOWRZKDW,KDGHYHU
H[SHULHQFHG´OXFORD ENGLISH DICTIONARY 249 (2d ed. 1989).
97
Lawrence Solum has does an excellent job describing a term of art in the context of
coQVWLWXWLRQDOLQWHUSUHWDWLRQ+HZURWH³7KDWLVRUGLQDU\FLWL]HQVZRXOGUHFRJQL]HDGLYLVLRQRI
linguistic labor and defer to the understanding of the term of art that would be the publicly
available meaning to those who were members of the relevant group and those who shared the
XQGHUVWDQGLQJVRIWKHPHPEHUVRIWKHUHOHYDQWJURXS´6ROXPsupra note 12, at 16.
98
Stinneford, supra note 20, at 1745.
99
7KHVLJQLILFDQFHRI&RNH¶VZRUNVVKRXOGQRWEHXQGHUVWDWHGDVRQHVFKRODUSURFODLPHGWKDW
³>KLV@ZRUNVKDYHEHHQWRWKHFRPPRQODZZKDW6KDNHVSHDUHKDVEHHQWROLWHUDWXUHDQGWKH.LQJ
-DPHV%LEOHWRUHOLJLRQ´ALLEN D. BOYER, INTRODUCTION TO LAW, LIBERTY, AND
PARLIAMENT: SELECTED ESSAYS ON THE WRITINGS OF SIR EDWARD COKE xiii±xiv (Allen D.
Boyer ed., 2004). I think it almost goes without saying that such praise is not given lightly.
100
STEPHEN D. WHITE, SIR EDWARD COKE AND THE µ*RIEVANCES OF THE COMMONWEALTH¶ 3
(1979).
20
Richard E. Nowak
both the king and Parliament.101 As a result, while the American federal punishment system was
not based in the common law, many of the same principles carried over.
To Coke, the reason why the common law had persevered and thrived for such a long
SHULRGRIWLPHZDVEHFDXVHLWFRQVLVWHGRIFXVWRPDU\SUDFWLFHVHQMR\LQJ³ORQJ´DQG³LPPHPRULDO
XVDJH´²as a result, these practices were inherently just and reasonable.102 Government actions
which deviated from the customary practices, on the other hand, were dangerous and
presumptively unjust (i.e. unusual).103
(YHQ DIWHU &RNH¶V GHDWK Whis ideal persisted which
explains why Blackstone accepted the notion of severe punishments in England for minor
offenses yet took issue with Parliament acting contrary to the common law by changing which
offenses qualified as capital crimes.104
As the following sections will emphasize, the works of Coke and Blackstone had a
profound impact on the American legal system and the original public meaning of the Eighth
Amendment. For, while many of the rights we consider fundamental are codified in the Bill of
the Rights, the framers of the Constitution did not simply decide on a whim that these were the
sort of rights needing protection from the State.105 Instead, these ideals were based on the
customary practices already enjoying long usage in England.106
2. /HW¶V1RW)RUJHW$ERXWWKH:RUG³&UXHO´
A historical analysis of WKH ZRUG ³FUXHO´ reveals that the word had a less onerous
meaning during the seventeenth and eighteenth centuries than it does today. While it is now
101
See EDWARD S. CORWIN, THE ³+IGHER LAW´ BACKGROUND OF AMERICAN CONSTITUTIONAL
LAW 56±57 (1955).
102
1 EDWARD COKE, INSTITUTES OF THE LAWES OF ENGLAND § 138, at 701 (1608) (the laws of
England were divulged of anything bad or unreasonable EHFDXVH³E\VRPDQ\VXFFHVVLRQVRI
ages it hath been fined and refined by an infinite number of grave and learned men, and by long
experience growne to such a perfection. . . . ).
103
Id. § 723, at 740 (English common law, having so thoroughly refined, was able to sever to
new innovations in law that are gold from the drosse).
104
See supra notes 60±63, and accompanying text.
105
For example, many of the fundamental rights embodied in the first eight amendments have
their source in the common law as reflected by the Magna Carta including: the right to due
process of law, indictment by grand jury, and habeas corpus. See 2 EDWARD COKE, INSTITUTES
OF THE LAWES OF ENGLAND 858, 862±64, 907 (1608).
106
To Coke, the idea of written laws describing the numerous rights and liberties of citizens
³PHUHO\DIILUPHGWKHH[LVWHQFHRIULJKWVWKDWKDGDOUHDG\GHYHORSHGWKURXJKORQJXVDJH´
Stinneford, supra QRWHDW$FFRUGLQJO\&RNHGHVFULEHGWKH0DJQD&DUWDDV³EXWD
confirmation or restitution of the Common LDZ´COKE, supra note 102, § 108, at 672.
21
2ULJLQDOLVP¶V Perseverance
common to consider ³cruel´ as being synonymic with words like bloodthirsty, merciless, or
meaning unrelentingly severe,107 its normal usage during the late eighteenth century was simply
to mean severe or hard.108 Blackstone, for example, LQGHVFULELQJWKHSUREOHPRI³SXQLVKPHQWV
of unreasonable severity,´ XVHG WKH ZRUG ³cruel´ DV a synonym for severe or excessive.109
Moreover, like Coke, Blackstone emphasized that the common law had developed over a
extensive period of time and that SXQLVKPHQWV ZKLFK ³VDYRU RI WRUWXUH RU FUXHOW\´ ZHUH
SURKLELWHG QRW E\ VWDWXWH EXW E\ WKH ³WDFLW FRQVHQW´ of the English people.110 Therefore, the
codification of the prohibition against cruel and unusual punishments in the English Bill of
Rights was a mere exemplification of what had already been developed in the common law.
There is no dispute that up through the eighteenth and into the nineteenth centuries that
many of the harsh penalties like whipping, pillory, and even mutilation, were accepted practices
in English society²they were not ³FUXHO DQG XQXVXDO´ This is why the case involving Titus
Oates is so interesting and reflective. His punishment was deemed cruel and unusual despite the
fact that it consisted entirely of individual punishments that were not inherently cruel or unusual.
,QVWHDG2DWHV¶VSunishment was cruel and unusual because it was overly severe, unauthorized
by statute, and outside jurisdiction of the court to impose.111 Again though, why was his
SXQLVKPHQW ³FUXHO´ ZKHQ RWKHU RIIHQGHUV DW WKH VDPH WLPH ZHUH VHQWHQFHG WR GHDWK E\
dismembeUPHQWRUZHUHHPERZHOHGDOLYH"'HVSLWH-XVWLFH6FDOLD¶VDVVHUWLRQWRWKHFRQWUDU\112
the idea of proportionality was well developed in the common law.
C. Carryover to the United States
I must mentioned at the outset that the English common law initially did not have a
strong hold on the American colonies because the early colonial legal systems were generally
107
5DQGRP+RXVH'LFWLRQDU\³FUXHO´KWWSGLFWLRQDU\UHIHUHQFHFRPEURZVHFUXHO
Granucci, supra note 76, at 860. For example, the Oxford English Dictionary quotes
Jonathon Swift for a representative GHILQLWLRQRIFUXHOZKHQKHZURWHLQ³,KDYHJRWDFUXHO
FROGDQGVWDLGZLWKLQDOOWKLVGD\´OXFORD ENGLISH DICTIONARY 1216 (1933).
109
BLACKSTONE, supra note 56, at *16±17.
110
Id. at *369±72; see also Granucci, supra note 76, at 864 (discussing how Blackstone does
QRWFLWHWRWKH(QJOLVK%LOORI5LJKWVIRUWKHSURKLELWLRQDJDLQVW³VDYRURIWRUWXUHRUFUXHOW\´
111
See supra notes 73±76, and accompanying text.
112
In Harmelin v. Michigan-XVWLFH6FDOLDHPSKDWLFDOO\VWDWHG³the Eighth Amendment contains
QRSURSRUWLRQDOLW\JXDUDQWHH´ 501 U.S. 957, 965 (1991).
108
22
Richard E. Nowak
based on simple legal codes used to regulated day-to-day life.113 Clearly, one of the major
reasons for this is that America was primarily a vast wilderness at the time and survival was
priority number one. This, however, did not reduce or eliminate the American devotion to
English legal traditions. As time passed and the colonies became more settled, the common law
became more entrenched. It was for this reason that the American Revolution has been
described not as DUHYROW³DJDLQVWWKH(QJOLVKFRQVWLWXWLRQEXWRQEHKDOIRILW´114 Like
Blackstone and Coke before them, the colonists were fighting against the English Parliament
ZKLFK³VHHPHGEHQWRQGHSULYLQJWKHPRI>ULJKWVHPERGLHGLQWKHFRPPRQODZ@´115
Ultimately, by the end of the eighteenth century, as the number of trained lawyers in
America had increased, reception of the common law in the colonies was universal.116 And even
in the years preceding this acceptance, when the common law was not received as a source of
positive law, the colonists still drew on it as a source of fundamental rights and liberties against
the State.117 This is primarily why Alexander Hamilton and the Federalists argued that the Bill
of Rights was unnecessary and superfluous.118 For, as Hamilton wrote in Federalist Number 84,
a bill of rights would be redundant in a Constitution of limited powers and an enumeration of
such rigKWV³PLJKWLPSO\WKHH[LVWHQFHRISRZHUVWKDWZHUHQRWHYHQFODLPHGWRLQKHUHLQWKH
&RQVWLWXWLRQ´119 ,WVHHPVWKHQWKDWGHVSLWH-XVWLFH6FDOLD¶VDVVHUWLRQWKHIRXQGLQJJHQHUDWLRQ
did not simply copy the cruel and unusual punishments provision from the English Bill of Rights
almost verbatim, yet completely ignore all semblance of the common law. This leaves a final
inquiry, however, because it seems that the original understanding of the Eighth Amendment
differed from the meaning held in England. Was this intention or did the framers and ratifiers
PLVLQWHUSUHWWKHFRPPRQODZPHDQLQJRIWKHSKUDVH³FUXHODQGXQXVXDOSXQLVKPHQWV´"
113
See PAUL SAMUEL REINSCH, ENGLISH COMMON LAW IN THE EARLY AMERICAN COLONIES 53
(1899).
114
GORDON WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787, at 10 (1972).
115
Stinneford, supra note 20, at 1793 (citing Thomas C. Grey, Origins of the Unwritten
Constitution: Fundamental Law in American Revolutionary Thought , 30 STAN. L. REV. 843
(1978)).
116
Id.
117
Id. at 1794 (citing REINSCH, supra QRWHDW³0RVWRIWKHFRORQLHV made their earliest
DSSHDOVWRWKHFRPPRQODZLQLWVFKDUDFWHURIDPXQLPHQWRI(QJOLVKOLEHUW\´
118
ALEXANDER HAMILTON, JAMES MADISON & JOHN JAY, THE FEDERALIST PAPERS 509 (Ian
Shapiro ed., 2009).
119
Id.; see also THE FEDERALIST NO. 84 (Alexander Hamilton).
23
2ULJLQDOLVP¶V Perseverance
D. What Interpretation Was Actually Adopted?
As the preceding sections demonstrate, there seems to have been a disconnect between
WKH (QJOLVK PHDQLQJ RI WKH SKUDVH ³FUXHO DQG XQXVXDO SXQLVKPHQWV´ DQG WKH $PHULFDQ
interpretation of that meaning. For, if the English ideal was that the label ³FUXHO DQGXQXVXDO´
was reserved for punishments that were excessive and contrary to the law of the state, then why
was there sentiment that a bill of rights was needed to prevent Congress from inventing new
punishments that would make the rack and gibbets seem mild?120
It could be, as one
commentator has suggested, that the framers and ratifierV PLVUHDG %ODFNVWRQH¶V ZULWLQJV DQG
EHOLHYHG WKDW WKH ³FUXHO DQG XQXVXDO SXQLVKPHQWV´ SURYLVLRQ LQ WKH (QJOLVK %LOO RI 5LJKWV
actually prohibited the torturous punishments that Blackstone had depicted.121 This would seem
to make sense because there is evidence that after tKH(LJKWK$PHQGPHQW¶VDGRSWLRQboth state
and federal jurists accepted the view that the Cruel and Unusual Punishments Clause prohibited
certain methods of punishment122 and the idea that it prohibited punishments disproportionate to
the crime (i.e. excessive) was rebuffed.123 At the same time, there is little or no evidence to
suggest that the framers or ratifiers intended to completely disregard the common law meaning.
Admittedly, the proceeding discussion does not conclusively define the exact original
public meaning of the Cruel and Unusual Punishments Clause. Still, it is useful because it helps
narrow our inquiry by stressing what the original public meaning was not. However, this means
that we must employ constitutional construction because the original public meaning of the
phrase cruel and unusual punishments remains indeterminate.124
120
Accordingly, by using
See supra note 66, and accompanying text.
Granucci makes this argument my demonstrating that the Supreme Court of Delaware
incorporated such an unjustified reading of Blackstone in 1963 and that the same mistake could
have been made at the Virginia Convention. See Grannuci, supra note 76, at 865 (quoting and
discussing State v. Cannon, 55 Del. 587, 591 (1963)). But see Tom Stacy, Cleaning Up the
Eighth Amendment Mess, 14 WM. & MARY BILL RIGHTS J. 475, 550 (2005) (³>7@KHEan was
meant to outlaw punishments that, while permissible in some circumstances are disproportionate
IRUWKHRIIHQVHDQGWKHRIIHQGHUDWKDQG´
122
Granucci, supra note 76, at 842.
123
1 T. COOLEY, A TREATISE ON CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE
LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 694 (8th ed. 1927).
124
/DZUHQFH6ROXPZRXOGGHILQH³FRQVWLWXWLRQDOFRQVWUXFWLRQ´DV³WKHDFWLYLW\RIIXUWKHU
specifying constitutional rules when the original public meaning of the text is vague or
XQGHWHUPLQDWH´6ROXPsupra note 12, at 4. The distinction between interpretation and
121
24
Richard E. Nowak
construction, we are seeking to establish a constitutional doctrine to resolve the indeterminacies
while remaining consistent with original linguistic meaning.125
Inherently, implementing such a task will require deciding on a case-by-case basis
whether a faint-hearted exception applies because there has historically been innovation in
punishment. For example, in the area of capital punishment, common practice has generally
evolved from hanging, the firing squad, the electric chair, and the gas chamber, to the widely
implemented contemporary method of lethal injection. At the same time, whipping, pillorying,
mutilation, and other like punishments have been done away with. These trends, however, do
not tell us what is permissible under the Eighth Amendment, but are examples of what the
founding fathers envisioned²that punishment could and would evolve. AEUDKDP +ROPHV¶
worry at the Virginia Convention that an amendment was needed to restrain Congress ³IURP
inventing the most cruel and unheard-of punishments,´ is quite telling because it emphasizes that
the Eighth Amendment was meant to protect against novel punishments that deviate from those
in common usage.126
Therefore, considering their widespread usage, it seems evident that
punishments like flogging, pillorying, and even mutilation are not cruel and unusual punishments
within the original public meaning of the Eighth Amendment. As a result, if Justice Scalia were
to actually act upon his words and choose to not uphold the punishment of flogging, 127 he would
be acting contrary to the original public meaning of the SKUDVH³FUXHODQGXQXVXDOSunishments´
Now where does this leave us when a constitutional challenge is brought forth involving
an innovational form of punishment like lethal injection? Accepting that adhering to the original
public meaning would involve an evaluation of the method of punishment, the use of
constitutional construction would be necessary to compare the challenged method with an
equivalent punishment commonly used in the late eighteenth century.
For example, in a
challenge to lethal injection, the likely comparison would be with hanging because it was the
most common method of capital punishments. While some comparisons would be more difficult
than others, this method would at least provide a framework for applying the original meaning of
cruel and unusual punishments. What we might expect, however, is that the large majority of
construction has been strongly associated with Randy Barnett and Keith Whittington. See
BARNETT, supra note 7, at 88; WHITTINGTON, supra note 15, at 5.
125
See Solum, supra note 12, at 5.
126
BANNER, supra note 66, at 233.
127
See supra notes 17±18, and accompanying text.
25
2ULJLQDOLVP¶V Perseverance
our current punishment practices would be upheld because the States have for the most part done
away with barbaric and torturous punishments. Therefore, without the imposition of innovative
punishment methods, it would seem that the Eighth Amendment would provide little protection
when it comes to our contemporary societal views of punishment. Accordingly, a faint-hearted
exception is needed.
V. L E GITIM ACY
OF A
F A I N T -H E A R T E D E X C E P T I O N
The preceding sections sought to ascertain the original public meaning of the Cruel and
Unusual Punishments Clause. While my review was by no means comprehensive or exhaustive,
it demonstrated that the actual original public meaning cannot be reconciled with Justice Scalia¶V
conclusions in Harmelin v. Michigan (YHQ VR GHVSLWH WKH 6XSUHPH &RXUW¶V DGKHUHQFH WR WKH
³HYROYLQJ VWDQGDUGV RI GHFHQF\´ LW LV SRVVLEOH WR HVWDEOLVK DQ (LJKWK $PHQGPHQW IUDPHZRUN
based on the original public meaning and to implement a faint-hearted exception that does not
undermine the original theory. The first step is to determine under what circumstances the
exception could and should apply.
A. The Requisite Circumstances
To begin, it is necessary to recognize that there is always a possibility that it may be
impossible to strictly adhere to originalist principles.
One of the primary tenets and
understandings of the Constitution is that the President of the United States must be at least 35
years of age upon election.128 As Lawrence 6ROXPSRLQWVRXW³a mending construction might be
required´LQWKHXQOLNHO\FDWDVWURSKLFHYHQWWKDWHYHU\SHUVRQVDWLVI\LQJWKDWUHTXLUHPHQWHLWKHU
dies or becomes incapacitated.129 While this is surely not what Justice Scalia was referring to
when he admitted to his potential faint-heartedness, surely no right-minded person would argue
that in this situation no President could be elected.
We cannot expect any interpretive theory to account for every possible unforeseen
consequence, just as the founding generation could have never predicted the use of electronic
communication devices or the rise of the Internet. Even a strict living constitutionalist would
128
$UWLFOH,,†VSHFLILFDOO\SURYLGHVWKDW³1R3HUVRQH[FHSWDQDWXUDOERUQ&LWL]HQRUD
Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to
the Office of President; neither shall any person be eligible to that Office who shall not have
attained to the Age of thirty five Years, and been fourteen Years a Resident within the United
6WDWHV´86CONST. art. II, § 1.
129
Solum, supra note 8, at 136.
26
Richard E. Nowak
have a difficult time interpreting the Article II age requirement to not mean what it explicitly
says. Instead, in the situation described above, they would likely argue that the requirement is
rendered moot by impossibility²the same argument that an originalist in the same position
would be forced to make. Accordingly, when we seek to frame the question as to whether a
faint-hearted exception to the Eighth Amendment undermines the originalist theory, we must
exclude situations like the one above.130
Faint-hearted originalism, then, must be defined to include only those situations in which
an originalist strays from the original meaning of a constitutional provision for some reason other
than impossibility. For we cannot claim originalism to be unprincipled under such extreme
circumstances because no legitimate theory of constitutional interpretation could avoid that
fate.131 Accordingly, faint-KHDUWHG RULJLQDOLVP HQFRPSDVVHV -XVWLFH 6FDOLD¶V VWDWHPHQW WKDW KH
FRXOGQRWLPDJLQH³DQ\PRUHWKDQDQ\RWKHUIHGHUDOMXGJHXSKROGLQJDVWDWXWHWKDWLPSRVHVWKH
punishmenW RI IORJJLQJ´132 Although unlikely, if a State were to reintroduce flogging as a
punishment for theft, and Justice Scalia failed to uphold the constitutionality of that state law, he
would be intentionally diverging from originalist principles.133
One important question remains²one that is the basis for this Paper²at what point does
a faint-hearted exception to originalism undermine the theory? Whether for moral, ethical, or
religious reasons, if an originalist constantly strayed from originalist roots to obtain specific
results, then the originalist²like his nonoriginalist brethren²is merely focusing on self-deemed
IXQGDPHQWDOYDOXHVLQLQWHUSUHWLQJWKH&RQVWLWXWLRQ)RUZKLOHLWLV³YHU\GLIILFXOWIRUDSHUVRQWR
discern a difference between those political values that he personally thinks most important and
130
A fictitious, but plausibly relevant, Eighth Amendment example would arise if the original
meaning of the death penalty permitted it to only be performed by the electric chair. If a
catastrophic event resulted in the destruction of the entire U.S. power grid, we clearly would be
unable to perform any executions by electrocution and would be forced to either eliminate the
death penalty or perform it by other means.
131
I say legitimate theory because indeed, a theory that involves disregarding all of the plain
meaning in the Constitution for a personal viewpoint could get around the 35 years of age
requirement. However, once we go down that road can we ever come back and does the
Constitution mean anything?
132
Scalia, supra note 17, at 864.
133
This is, of course, assuming that flogging is not a cruel and unusual punishment within the
original meaning of the Eighth Amendment. While I do not think a definite answer to this
question is necessary for this Paper, I agree with Justice Scalia that it was not considered cruel
nor unusual at the time of the Eighth AmendmHQW¶VDGRSWLRQ
27
2ULJLQDOLVP¶V Perseverance
WKRVHSROLWLFDO YDOXHVWKDW DUHµIXQGDPHQWDO WR RXUVRFLHW\¶´134 the originalist would be openly
deferring to his or her own personal views in straying from the original meaning.
B. Why It Would Not Undermine the Theory
A limited and strictly applied faint-hearted exception to the Cruel and Unusual
Punishments Clause would not render originalism an unprincipled theory of constitutional
interpretation and construction. While the idea of such an exception may seem to permit judges
to diverge from original meaning on a personal whim, in reality, it merely recognizes that there is
necessarily an exception to every rule and that adherence to strict formalism would be
impractical. One of the primary criWLFLVPVRIRULJLQDOLVPLVWKDWLWIDLOVWRWDNHLQWRDFFRXQW³WKH
UHDOLW\ RI KLVWRULFDO FKDQJHV´ for we cannot argue practically that all departures from original
meaning that took place during the New Deal are illegitimate and should be set aside. 135 Just as
the idea of judicial review has become entrenched in our legal system, we cannot realistically
expect the Supreme Court, or any other court for that matter, to completely overhaul hundreds of
years of precedent merely because the original public meaning would dictate such an action.
However, because the large majority of cases do not implicate such bedrock principles,
adherence to originalism seems to provide the only principled basis for constitutional doctrine
and any exception must be fashioned and applied in a narrowly.
A legitimate faint-hearted exception to the Cruel and Unusual Punishments Clause must
be limited and strictly applied to apply only in extreme situations so that originalism does not
transform into an unprincipled theory permitting judges to decide cases as they see fit. While
some commentators argue that this is already happening, we should always strive for a more
reasoned and principled judiciary.
C. When Would It Apply?
If a majority of Justices on the 6XSUHPH&RXUWZHUHWRLQWHUSUHWWKH(LJKWK$PHQGPHQW¶V
prohibition against cruel and unusual punishments by adhering to the original public meaning,
Congress and State legislatures would be free to reinstate pillorying, flogging and other similar
punishments. This does not mean that stocks would suddenly line the streets or that there would
be weekly exhibits of corporal punishment. On the contrary, it merely means that State
134
Scalia, supra note 17, at 863.
See Griffin, supra QRWHDW³6HWWLQJDVLGHWKDWWKHFRQVWLWXWLRQDORUGHUKDVEHHQRQD
deviant path for seventy years, it is startling to realize there is no coherent originalist narrative
that explains historically what happened to constitutional meaning in the post Lochner era).
135
28
Richard E. Nowak
legislatures and Congress would have the freedom to reinstate the sorts of punishments that were
permitted and commonly used in the late eighteenth century. For, if John Stinneford is correct
WKDWWKHZRUG³XQXVXDO´GRHVPHDQ³FRQWUDU\WRORQJXVDJH´136 the punishments mentioned
DERYHZHUHQRW³XQXVXDO´EHFDXVHWKH\KDGEHHQWKHVWDWXVTXRLQ(QJODQG, and then in America,
for years. While imprisonment began to replace flogging as the primary punishment method
beginning in the early nineteenth century,137 this does not change the original meaning of the
Eighth Amendment²the change merely represents an evolving societal judgment.
This is where the faint-hearted exception comes in because contemporary societal values
have indeed changed and we must, like Stephen Griffin and other nonoriginalists have argued,
take into account the reality of historical changes. This involves a recognition that we are
discussing State-approved imposition of punishment on individual persons²which in extreme
cases involves taking an offender¶s life. While this Paper does not address whether Justice
6FDOLDDQG-XVWLFH7KRPDV¶VDOOHJHGGLYHUJHQFHIURPRULJLQDOSXEOLFPHDQLQJLQRWKHUFRQWH[WV
would be justified under a similar exception, the Cruel and Unusual Punishments Clause seems
unique in that it inherently involves a State imposed deprivation of life or liberty to a potentially
maximum extent. While there surely have been historical events that have changed our views on
certain other ideals embodied in the Bill of Rights²the right to freedom of speech, for
example²adhering to the original public meaning in those cases would not inherently permit the
reinstatement of public caging, branding, or the cutting off of ears.138 While it is one thing to
have a public Internet database of sexual offenders, it is completely another to physically brand
an offender and expose that person to daily ostracism.139
This is not to say that I realistically believe that States would jump at the chance to
reinstate these sorts of punishments if given the chance. On the contrary, I find it highly
unlikely. However, in the face of a traumatic event, there is a tendency to make rash decisions.
It is when these sorts of situations arise that a faint-hearted exception is needed to ensure that
136
See supra notes 95±98, and accompanying text.
THOMAS G. BLOMBERG & KAROL LUCKEN, AMERICAN PENOLOGY: A HISTORY OF CONTROL
31 (2009).
138
While these punishments were not all that common, they were highly public and resulted in
ridicule as well as verbal and physical abuse. Id.
139
Although sexual offender databases are easily accessible via the Internet, not every person
who comes in contact with him or her will be aware of the misdeeds. On the contrary, branding
and the use of pillories were specifically designed to bring about public reaction and ostracism.
137
29
2ULJLQDOLVP¶V Perseverance
cooler heads prevail. Because, if for example, there is another attack on the level of the World
Trade Center tragedy or worse, a State legislature, by reacting to the emotional and temporarily
crazed view of the constituents, could and might reinstitute public mutilation or other similar
punishments as imposable sentences for certain terrorist activities.
By permitting a faint-hearted exception, we must ultimately draw a line in deciding when
it may be employed. While we cannot necessarily foresee every possible innovation in
punishment, such an exception must be limited to the sorts of things that would shock the
conscience. Admittedly, while WKLVVRXQGVHHULO\IDPLOLDUWRWKHQRQRULJLQDOLVW³HYROYLQJ
VWDQGDUGVRIGHFHQF\´IUDPHZRUNHPSOR\HGE\WKH6XSUHPH&RXUWDOUHady, deciding cases
merely based on recent trends in punishment is a significantly different enterprise. For example,
the fact that a simple majority of States choose to abolish the juvenile death penalty does not
mean that the remaining states permitting such punishment are renegades acting contrary to the
established moral fabric of society. The story would likely be different, however, if a single
State decided that it would execute all juvenile offenders by means of public disembowelment.
The faint-hearted exception would be limited to situations like the latter, and would be merely
used as a check to prevent the reinstatement of punishments like mutilation or forced slavery.140
Understandably, adherence to this type of approach to the Cruel and Unusual
Punishments Clause would likely be vehemently objected to by scholars like Randy Barnett and
Michael Paulsen. Indeed this, like an adherence to stare decisis, inherently involves ³SXW>WLQJ@
prior opinions of mere judges above that of the Constitution.´141 Similar to the Supreme Court
making a distinction between the death penalty and other punishments,142 the Eighth
Amendment, I believe is unique in regards to its constitutional interpretation and construction.
140
The Thirteenth Amendment specifically contemplates the imposition of slavery as a
punishment. See 86&RQVWDPHQG;,,³1HLWKHUVODYHU\QRULQYROXQWDU\VHUYLWXGH except as
punishment for crime whereof the party shall have been duly convicted, shall exist within the
8QLWHG6WDWHVRUDQ\SODFHVXEMHFWWRWKHLUMXULVGLFWLRQ´)RUDQLQWHUHVWLQJGLscussion about
how an originalist view of the Thirteenth Amendment would permit the imposition of slavery
under the Eighth Amendment, see Scott W. Howe, Slavery as Punishment: Original Public
Meaning, Cruel and Unusual Punishment and the Neglected Clause in the Thirteenth
Amendment (2009), available at http://ssrn.com/abstract=1347156.
141
Barnett, supra note 1, at 12.
142
This idea has been echoed by the Court consistently since Justice Brennan emphasized the
notion in Furman v. Georgia . 408 U.S. 238, 286±%UHQQDQ-FRQFXUULQJ³>G@HDWK
LVDXQLTXHSXQLVKPHQW´³>G@HDWKLVLQDFODVVE\LWVHOI´
30
Richard E. Nowak
While on a theoretical level judges should always adhere to original public meaning if possible,
the faint-hearted exception recognizes that the implications of State-imposed punishment
differentiates the Eighth Amendment from the other ideals embodied in the Bill of Rights.
Finally, I would like to quickly address the (legitimate) argument that if we (i.e. the
American People) really think the Eighth Amendment should not permit the sorts of the
punishments necessitating an exception, that it is possible to pass a substantive amendment to the
Constitution.143 At the risk of being called a nonoriginalist, I recognize the incredible difficulty
in the Article V amendment process144 and believe the judiciary should step in under the narrow
circumstances described above. For why should we permit the potential reinstitution of slavery
as a State-mandated punishment while we await the amendment process to run its course?
Should our ideals of formalism in adhering to the original public meaning really run that deep?
V I. C O N C L USI O N
When Justice Scalia admitted that he could not imagine upholding the constitutionality of
flogging if such a case came before him, he was speaking as a practical-minded judge and human
being, not as an academic urging strict adherence to originalism. For while it is a Supreme Court
-XVWLFH¶VGXW\WRLQWHUSUHWWKHlaws and establish constitutional doctrine, we must understand that
the lives and actual freedom of individuals are at stake when the Court establishes its Eighth
Amendment doctrines. For while JXVWLFH6FDOLDPD\QRWEHDQRULJLQDOLVWLQ5DQG\%DUQHWW¶V
eyes if he refused to uphold State-instituted slavery,145 we should not expect any judge to uphold
punishments that are so contrary to contemporary views and beyond what can even be fathomed
as reasonable.
This Paper has sought to demonstrate that complete loyalty and regard for the original
meaning of the Cruel and Unusual Punishments Clause would be medicine that not only ³seems
too strong to swallow,´146 but in fact is. The ample array of punishments commonly used during
the late eighteenth century and the widely-held beliefs about those punishments make it clear that
143
See, e.g., BARNETT, supra QRWHDW³>%@\FRPPLWWLQJRXUVHOYHVWRDZULWWHQFRQVWLWXWLRQ
we commit ourselves to adherHWRWKHRULJLQDOPHDQLQJRIWKHWH[WDQGDQ\ODWHUDPHQGPHQWV´
144
See Griffin, supra note 6, at 1211 (The difficulty of amendment resulted not only from the
daunting supermajorities required by Article V, but from the internal logic of constitutional
stability.).
145
See supra notes 21±22, and accompanying text.
146
See supra notes 18±30, and accompanying text.
31
2ULJLQDOLVP¶V Perseverance
WKH&RXUW¶VFXUUHQWLQWHUSUHWDWLRQRIWKH(LJKWK$PHQGPHQWLVDVLJQLILFDQWGHSDUWXUHIURPWKH
original public meaning. While the CoXUW¶VUHFHQWMXULVSUXGHQFHLVJHQHUDOO\FRQYROXWHGDQG
unprincipled, this Paper advocates the adoption of a narrow faint-hearted exception to the
RULJLQDOSXEOLFPHDQLQJRIWKH(LJKWK$PHQGPHQW¶VSURKLELWLRQDJDLQVWFUXHODQGXQXVXDO
punishment. The Eighth Amendment is exceptional in that it regulates State-imposed
punishment and uniquely involves the deprivation of certain aspects of life and liberty on the
most personal and fundamental of levels. Therefore, a faint-hearted exception, while perhaps not
suited to any other provision in the Constitution, is necessary for the Eighth Amendment.
The purpose of a faint-hearted exception is not to permit judges to diverge from the
original public meaning any time they feel so inclined or to shape the law to fit their own
personal viewpoints. Rather, it is needed to enable our judicial system to prevent the legislative
branch from taking advantage of the original public meaning to reinstitute some of the barbaric
punishments used in centuries past. This does not mean that strict adherence to originalist
principles should not be followed in other areas of the laws or in regards to the other freedoms
articulated in the Bill of Rights, it merely means that we cannot expect judges to actually uphold
punishments amounting to State-imposed torture, merely because the original public meaning
would permit it. At some point, the end result cannot be justified by the means.
32