The Anti-Discrimination Eighth Amendment
University of San Diego School of Law
Harvard Journal of Law and Public Policy, Vol. 28
Constitutional meaning is not a creature of linguistic happenstance. Disengaged from history and context, the words "nor cruel and unusual punishments inflicted" may be read to condemn any of three things. Firstly, the words may condemn vicious methods of punishment that have not been used before or have fallen into disuse. Secondly, the words may condemn punishments that appear excessive when compared with what other jurisdictions impose for like offenses. Thirdly, the words may condemn punishments that are invidiously discriminatory. In the English language, the words "nor cruel and unusual punishments inflicted" are susceptible of all three constructions. But that is hardly sufficient warrant for an interpreter of the United States Constitution to say "We'll have 'em all!" Such an approach to constitutional interpretation would allow one to conclude that the second amendment protects both a right of the people to keep and bear weapons and a right of the people to keep and bear their upper limbs. The right interpretation of the Constitution is a creature of context and history. The context in which the phrase "nor cruel and unusual punishments inflicted" appears is a provision that also condemns excessive bail and excessive fines. And history reveals that the provision's combination of condemnations was designed and understood to prevent invidiously discriminatory punishment.
Number of Pages in PDF File: 77
Keywords: constitutional law, cruel and unusual punishment, excessive punishment, discriminatory punichments, Consitutional interpretation, Eighth Amendment
JEL Classification: K00, K19Accepted Paper Series
Date posted: October 5, 2004
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