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December 30, 2005

"The Eighth Amendment is a jurisprudential train wreck"

Benjamin Wittes, who writes editors for the Washington Post specializing in legal affairs, has this terrific new article, entitled, "What is cruel and unusual?", appearing in the December 2005-January 2006 issue of Policy Review.  As the title suggests, the piece examines the Supreme Court's Eighth Amendment jurisprudence, and the article's first line (which is the title of this post) leaves little doubt as to Wittes' views of the High Court's work in this area.  Here is the full text of the first paragraph of Wittes' article:

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.

December 30, 2005 at 11:20 AM | Permalink

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Comments

If so, the the Ninth Amendment has been run over by a train.

Posted by: Scott | Dec 30, 2005 12:12:19 PM

Scott, your funny insight reminds me of one of my favorite silly kid jokes (which would work better as a podcast that a blog comment):

Q: Why does six fear seven?
A: Because seven eight nine.

Posted by: Doug B. | Dec 30, 2005 12:37:30 PM

God knows it seems like somebody has! :-)

Happy new year, Doc!

Posted by: Scott | Dec 30, 2005 7:19:16 PM

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Posted by: Boom | Jan 19, 2009 12:23:54 AM

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