Cruel and Unusual Punishment and the Eighth Amendment as a Mandate for Human Dignity: Another Look at Original Intent

Abstract

This Article examines the originalist approach to interpretation of the Eighth Amendment's Cruel and Unusual Punishments Clause and concludes that restricting the meaning of the Clause to the historical moment contemporary with ratification does an injustice to the truly "original intent" of the Framers that the Constitution was to serve American posterity in a meaningful way. The piece demonstrates that one can seriously consider the Fifth and Eighth Amendments to the United States Constitution and conclude - reading them together - that the death penalty is "cruel and unusual" and, therefore, unconstitutional, without doing violence to the "original intent" of the Framers.

In constructing this argument, I address the proposition of the Fifth Amendment's apparent approval of capital punishment and conclude that the Fifth is not an insurmountable hindrance to per se unconstitutionality of the death penalty under the Eighth. I briefly examine the English and American history of the death penalty, explore a comparative analogy of the constitutional position of the death penalty with that of slavery, and briefly look at the international abolitionist perspective via the development of South African constitutional jurisprudence regarding the death penalty.

I conclude that the Fifth Amendment's recognition of the death penalty need not be read to exclude the death penalty from constitutional scrutiny and per se invalidation under the Eighth Amendment. The Eighth Amendment's Cruel and Unusual Punishments Clause can be used as a device to bring America's penal system in line with the overarching aspirations of life and dignity that abound in our Constitution as they are recognized by a persuasive majority of the world's liberal democracies. Such a recognition of these transcendent principles would herald a truly "originalist" interpretive ethic.

JEL Classification: K10