The Antidiscrimination Eighth Amendment

77 Pages Posted: 5 Oct 2004 Last revised: 4 Feb 2016

Laurence Claus

University of San Diego School of Law


Disengaged from history and context, the words "nor cruel and unusual punishments inflicted" may be read in a range of ways. For example, they may be read to condemn vicious methods of punishment that have not been used before or have fallen into disuse, or punishments that appear excessive when compared with what other jurisdictions impose for like offenses, or punishments that are invidiously discriminatory. In the English language, the words "nor cruel and unusual punishments inflicted" are susceptible of all these interpretations. 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.

Keywords: constitutional law, cruel and unusual punishment, excessive punishment, discriminatory punichments, Consitutional interpretation, Eighth Amendment

JEL Classification: K00, K19

Suggested Citation

Claus, Laurence, The Antidiscrimination Eighth Amendment. 28 Harvard Journal of Law and Public Policy 119 (2004). Available at SSRN:

Laurence Claus (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-5933 (Phone)
619-260-4180 (Fax)

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