In a recent blog post, I mentioned the Punishments Clause and would like to follow up on that. Justice Scalia once wrote:
What it abstracts … is not a moral principle of "cruelty" that philosophers can play with in the future, but rather the existing [1791] society's assessment of what is cruel. It means not… "whatever may be considered cruel from one generation to the next," but "what we consider cruel today [in 1791]"; otherwise it would be no protection against the moral perceptions of a future, more brutal generation. It is, in other words, rooted in the moral perceptions of the time.
In defense of Justice Scalia’s view, David Tucker has written that the generation of 1791 was not immersed in a philosophy of moral relativism to the extent that we are today, and therefore "did not think moral values reflected subjective choices." Moreover, much of human history does bear out Scalia’s concern that societies often regress and rot, instead of inevitably progressing toward perfection.
Scalia once tempered his interpretation of the Punishments Clause by saying that "public flogging and handbranding would not be sustained by our courts, and any espousal of originalism as a practical theory of exegesis must somehow come to terms with that reality." But he eventually recanted: "what I would say now is, yes, if a state enacted a law permitting flogging, it is immensely stupid, but it is not unconstitutional. A lot of stuff that’s stupid is not unconstitutional." So, if anyone has an opinion about this, and would like to change it one way or another, Scalia might sympathize.
By 1791, many heinous forms of punishment such as ear cropping and hand branding were already falling out of widespread use on account of their perceived cruelty, although flogging was still widely practiced when the Fourteenth Amendment took effect in 1868. Personally, if I had to choose between a few lashes and a long spell in prison, the former has some serious appeal.
In the end, I suppose the most principled originalist approach might be to say that courts may strike down a state-inflicted punishment only if it is "cruel" according to both recent sentiment as well as the values that prevailed in 1868 (and of course it would have to be unusual as well). This would give effect to the presumption of constitutionality, while giving weight to how the framers used the term as well as weight to the possibility that the framers wanted future Americans to reevaluate the framers' own perceptions of cruelty. It is true that this interpretation would not provide as much protection as Scalia's interpretation against the moral perceptions of a future and more brutal generation, but still it would provide some such protection by forbidding deviations and aberrations that even such a brutal generation would generally view as "cruel". At the same time, this interpretation would rein in the practice of striking down statutes under the Eighth Amendment even though they were not deemed cruel in 1868.
Posted at 10:13 PM