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August 5, 2010

Interesting discussion of Eighth Amendment in review of constitutional interpretation books

I find the Eighth Amendment to be among the most interesting and challenging provisions of the Bill of Rights to consider in the originalism/living document debate over constitutional interpretation. For this reason, I was intrigued to see this discussion of the Eighth Amendment in this intriguing New Republic review by law professor Adrian Vermeule of the books "Keeping Faith with the Constitution" by Goodwin Liu, Pamela S. Karlan, and Christopher H. Schroeder and "The Living Constitution" by David Strauss:

The Constitution prohibits “cruel and unusual punishments.” Read in accordance with the founders’ specific expectations, this would permit punishments that were unremarkable in the founding generation yet seem barbaric today—the pillory, or the gallows. But how to limit the principle that the opaque text embodies? Why not describe the principle as a requirement of “humane punishment” or even “just punishment,” thereby delegating to some committee of aging lawyers on the bench, with limited information and life experience and no philosophical or penological training, a commission to define the content of humanity and justice? Constitutional fidelity has no means to block this conclusion, which is absurd.

Why should one think that the lawyer-committee’s answers to such questions will systematically be better than the answer supplied by a majority of the legislature, composed of hundreds of representatives with diverse professional backgrounds and perspectives? It is no answer to say that each generation will work out for itself, in changing circumstances, what just punishment requires. The crux of the issue, for constitutional law, is who will speak for the current generation: the legislatures and the executive officers, or the judges.

August 5, 2010 at 08:49 AM | Permalink

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Ummm, the gallows are barbaric? We still have at least one state where hanging remains an option. Perhaps the non-drop methods of strangulation are barbaric but I can hardly see that applying to drop hangings, which is, I am nearly certain, what people in the US think of when the word 'gallows' is used.

Posted by: Soronel Haetir | Aug 5, 2010 9:51:22 AM

The conviction of the innocent is cruel but not as unusual as it should be. Would Justice Scalia argue that it is not cruel and unusual because it is not unusual enough?

One-hundred Years of Getting It Wrong? Wrongful Convictions After a Century of Research , by Jon B. Gould, Richard A. Leo.

But even accepting present estimates that upwards of 3 percent of serious felonies end in a wrongful conviction, this would mean that as many as 30,000 innocent suspects are wrongly convicted each year.56

56 There were 15 million felony convictions between 1989 and 2003, or approximately 1 million per year. See Joshua Marquis, The Innocent and the Shammed, N. Y. Times, Jan. 26, 2006, at A23. See also the felony sentencing data sets compiled by the Bureau of Justice Statistics, available at
http://bjs.ojp.usdoj.gov/index.cfm?ty=dcdetail&iid=241 (last accessed February 27, 2010).

Depending on capacity, 30,000 could fill between 15 and 30 prisons. So to answer the question, the Warren Court got it right.

Posted by: George | Aug 5, 2010 10:11:11 AM

Soronel--That caught my eye too. I think, however, that the authors meant "gallows" to only refer to the non-drop, short-drop, or hoist methods. The long-drop method wasn't invented until 1872 in England--during the colonial era up through the Civil War, executions by hanging in the United States were entirely no- or short-drop or hoist.

The authors' use of the term is somewhat of an irony, I think, given the nature of the article--that just as our views of "barbaric" punishments may change over time, the very method associated with a term also changes (in this case, the "gallows"). Two generations from now, I imagine that the term "lethal injection" will always be associated with a one-drug protocol for much the same reason.

Posted by: Res ipsa | Aug 5, 2010 1:37:22 PM

The article asks:

"Why should one think that the lawyer-committee’s answers to such questions will systematically be better than the answer supplied by a majority of the legislature, composed of hundreds of representatives with diverse professional backgrounds and perspectives?"

Isn't the answer sort of obvious? The Federalist Papers itself provides an answer when it invokes of the dangers of majorities. In response to a heinous crime, the human desire to exact revenge is quite powerful. That majorities might run amok in response to terrible criminal acts, is not really that surprising is it? Criminal defendants are the original unpopular minority in need of protection. It's no mistake that four of the ten amendments in the Bill of Rights are largely about protecting such individuals.

Posted by: dm | Aug 5, 2010 6:51:35 PM

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