The Death of the Evolving Standards of Decency

Abstract

The Eighth Amendment Punishments Clause is in jeopardy. The con-stitutionality of punishments is usually judged according to the “evolv-ing standards of decency that mark the progress of a maturing socie-ty.” And in evaluating these standards, the Court has traditionally looked to changing societal views on punishment. This is a living con-stitution approach to interpretation, and the Eighth Amendment is the only area of law in which the Court has consistently and explicitly ap-plied such an approach. But a living constitution approach is diamet-rically opposed to the current Court’s focus on originalism. This is the first originalist Court in history, and the Court has not been shy about wielding its originalist wand. Further, the current Court is quite will-ing to set aside decades worth of entrenched precedent, as it did in Dobbs—its recent abortion decision. The Court’s originalist approach, paired with its disrespect for precedent, puts the Eighth Amendment living constitution approach examining the evolving standards of de-cency on very shaky ground. Even though the Court has long adhered to this test, a willingness to set aside precedent and put an originalist approach in its place seems to be in the works. Such a turn toward originalism would push us back to the barbaric punishments availa-ble at the time of the Founding and reverse current Eighth Amend-ment bans that prevent states from executing juveniles and intellectu-ally disabled people. Such a death of the evolving standards of decency would also render the Eighth Amendment a dead letter.

Keywords: Eighth Amendment, cruel and unusual, punishment, originalism, precedent, stare decisis, Supreme Court, torture