Gilbert & Sullivan and Scalia: Philosophy, Proportionality and the Eighth Amendment

55 Vill. L. Rev. 321 (2010)

71 Pages Posted: 16 Aug 2012  

Ian P. Farrell

The University of Texas School of Law; The University of Denver Sturm College of Law

Date Written: 2010

Abstract

The recent decision in Kennedy v. Louisiana demonstrates, the principle of proportionality – that the punishment should fit the crime – remains a vital component of the Supreme Court‟s Eighth Amendment jurisprudence. Justice Scalia, however, holds the view that the Cruel and Unusual Punishment clause contains no requirement of proportionality. The keystone of Justice Scalia‟s faint-hearted originalist argument in support of this position is a philosophical claim: that the proportionality principle is an inherently retributivist concept incompatible with consequentialist goals of punishment. An analysis of the various theories of punishment, and in particular retributivism and consequentialism, shows this claim to be false. In light of such an analysis, Justice Scalia‟s position as to the meaning of the Eighth Amendment is unsupportable. More generally, this philosophical analysis demonstrates that the principle of proportionality is not an inherently retributivist concept, but rather a theoretically independent moral conviction to which we are tenaciously attached. Understanding proportionality in this way reaffirms that the Eighth Amendment should be construed as requiring punishment to be proportional to the crime for which it is imposed.

Suggested Citation

Farrell, Ian P., Gilbert & Sullivan and Scalia: Philosophy, Proportionality and the Eighth Amendment (2010). 55 Vill. L. Rev. 321 (2010). Available at SSRN: https://ssrn.com/abstract=2130722

Ian P. Farrell (Contact Author)

The University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1095 (Phone)

The University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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