Sorochi Constitution Project – 8th Amendment

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Sorochi Sunday Ms. Lafuse World History I 2 June 2023 By granting powers not included in the Articles of Confederation, the Constitution strengthened the federal government. Federal crimes were established in the Constitution, and Congress had full power to define them and determine the appropriate punishments.

Congress’ authority over federal crimes worried some American leaders. At the time, no part of the Constitution regulated the punishments for federal crimes, leaving the possibility of Congress abusing their power. In response to fears of the federal government issuing oppressive punishments, the 8th Amendment was added to the Constitution. Part of the 8th Amendment prohibits “cruel and unusual punishments,” meaning criminals should not receive inhumane penalties for their crime. 

Debates have risen concerning how the words “cruel” and “unusual” should be interpreted. After defining these terms, the following question is: which standard, 1971, when the Bill of Rights was created, or modern day, should punishments be held to. Supreme Court Justices Clarence Thomas and Antonin Scalia believe that any punishment that was permissible in 1791 cannot be considered cruel or unusual. With their interpretation, capital punishment, while now controversial, would be considered Constitutional, since it was used in America during 1791.

Additionally, they believe that a punishment being disproportionate to crime committed does not necessarily mean the punishment is cruel. Conversely, Chief Justice Earl Warren believes interpretation of the clause should evolve over time to fit the changing standards of decency. He argues that a change in interpretation marks progress in society. Legal scholar John F. Stinneford disagrees with both Justices Thomas and Scalia, and Chief Justice Warren. He believes the meaning of cruel and unusual should fit the original public meaning.

According to him, the standard of cruelty the general public held in 1791 should be the standard judges use as they interpret the Constitution. In an attempt to preserve the original meaning, he also argues “unusual” should be interpreted as new or unprecedented, rather than rare. He claims that his interpretation is founded off of research into the original meaning of the 8th Amendment.  I find Chief Justice Warren’s interpretation most persuasive.

The other two interpretations discussed require one to understand the minds of people living the era of the Constitution, whether that be the framers or everyday people. However, both tasks seem very difficult to achieve in reality. Even with detailed research, discovering the exact thought process of the framers as they wrote the 8th amendment, let alone the average American in 1791, is improbable. Further, while historians have a better chance, with the brief and vague language of the 8th amendment, the average expertise of a judge may not be enough to reach a well-founded conclusion of any true original meaning. 

If I could amend this section, I would specify what is meant by “cruel”. To do this, I would list out some of the ways a punishment could be cruel, like so: a punishment that includes intentional torture or elongated killing, or is disproportionate in severity to the seriousness of the crime. I feel the word “cruel” is more important to the clause than “unusual”, as a punishment can be grossly inhumane, but also common.   

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