An Adjudicative Framework: Morality and the Punishments Clause

Eastaugh, Charlie

doi:10.1007/978-3-319-61735-0_2

Charlie Eastaugh²

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Abstract

The American Constitution’s Eighth Amendment restricts any imposition of ‘cruel and unusual punishments’ by the state. It mimics the Virginia State Constitution, which itself borrowed from the English Bill of Rights a century earlier. During the framing of the Eighth, one First Congress delegate noted that it was ‘too indefinite’, with another expressing that, ‘as it seems to have no meaning in it, I do not think it necessary.’ Nonetheless, the open-ended nature of the punishments clause prevailed during the 1791 Second Congress, when it was ratified alongside nine further provisions of what would become known as the Bill of Rights. Originally intended as ‘an admonition to all departments of the national government to warn them against such violent proceedings as had taken place in England’, the clause has since been understood to restrict all 52 American jurisdictions—the federal government, individual states, and the military. It has been understood for the last half-century that the Eighth is tied to a principle of evolutive decency, which breathes into the clause the meaning lamented as missing at the time of its ratification.

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Notes

1.
US Const, Amendment VIII. All references to the “Eighth Amendment” in this book are with respect only to the punishments clause of that provision, not to the fines and bail clauses.
2.
The Constitution of Virginia (29 June, 1776).
3.
‘[E]xcessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.’ Bill of Rights (1689) 1 Will & Mary Sess 2 c 2.
4.
Annals of Congress (1789) 782: ‘Mr. SMITH, of South Carolina, objected to the words “nor cruel and unusual punishments;” the import of them being too indefinite.’
5.
Ibid., 783: ‘Mr. LIVERMORE.-The Clause seems to express a great deal of humanity […] but as it seems to have no meaning in it, I do not think it necessary.’
6.
Joseph Story, Commentaries on the Constitution of the United States (Hilliard, Gray and Company 1833) §1896. Emphasis added.
7.
356 US 86 (1958) 101.
8.
The phrase ‘living constitution ’ was itself coined by Howard McBain, The Living Constitution (Workers Education Bureau Press 1927).
9.
David Strauss, The Living Constitution (OUP 2010) 1.
10.
Thomas Jefferson, ‘Letter to Samuel Kercheval: June 12, 1816’ https://tinyurl.com/o33bvrr, accessed 1 May 2017.
11.
Fleming has noted that, ‘In recent years, some have posed the question, “Are we all originalists now?”’ James Fleming, ‘Living Originalism and Living Constitutionalism as Moral Readings of the American Constitution’ (2012) 92 Boston University Law Review 1171, 1173 (citing Keith Whittington, ‘Dworkin’s “Originalism”’ (2000) 62 Review of Politics 197, 201 (interpreting Dworkin as an originalist)). Following his death, even Justice Scalia has been described as a living constitutionalist. Cass R Sunstein, ‘In Memoriam: Justice Antonin Scalia’ 130 HLR 1 (2016) 28–29.
12.
John Hart Ely, Democracy and Distrust (HUP 1980) 1–9.
13.
Mitchell Berman, ‘Originalism is Bunk’ (2009) 84 NYU Law Review 1, 14–15.
14.
Felix Frankfurter, ‘Some Reflections on the Reading of Statues’ (1947) 47 Columbia Law Review 527, 438; Hugo Black and Lenore Cahn, ‘Justice Black and First Amendment “Absolutes”: a Public Interview’ (1962) 37 NYU Law Review 549; Antonin Scalia, A Matter of Interpretation (PUP 1997) 23.
15.
Max Farrand, The Framing of the Constitution of the United States (Kessinger 2008) 201.
16.
Morton Horwitz, ‘The Meaning of the Bork Nomination in American Constitutional History’ (1989) 50 University of Pittsburgh Law Review 655, 663.
17.
Wil Waluchow, ‘Democracy and the Living Tree Constitution’ (2011) 59 Drake Law Review 1001.
18.
Barry Friedman and Scott Smith, ‘The Sedimentary Constitution’ (1998) 147 University of Pennsylvania Law Review 1, 7.
19.
Bruce Ackerman, We the People, Volume 1: Foundations (HUP 1991) 345.
20.
Trop (n 7) 100.
21.
Jonathan Simon, Mass Incarceration on Trial (New Press 2014) 136.
22.
Ronald Dworkin, Justice for Hedgehogs (Belknap 2011) 16.
23.
Roy Porter, Enlightenment (Penguin new edn, 2001) 3; Claire Valier, Theories of Crime and Punishment (Longman 2002) 5–20 (noting the impact of this period on law and criminology).
24.
Thomas Hobbes, Leviathan (1651) (CUP, Richard Tuck ed 1996). Hume responded that only utility could provide the rational standard for measuring conflicting positivist rights. David Hume, An Enquiry Concerning Human Understanding (1748) (Simon & Brown 2011) Chapter V.
25.
Jeremy Bentham, ‘Anarchical Fallacies; Being An Examination of the Declarations of Rights Issued During the French Revolution’ in John Bowring (ed) The Works of Jeremy Bentham (William Tait 1843) 501.
26.
Ross Harrison, Bentham (Routledge & Kegan Paul 1983) 104. Bentham’s formulation of positivism is considered to be the first full English exposition of the doctrine. See Jeremy Bentham, Of Laws in General (HLA Hart ed) (Athlone 1970).
27.
Michael Freeman, Lloyd’s Introduction to Jurisprudence (8th edn, Sweet & Maxwell 2008) 255–256. Also see John Austin, The Province of Jurisprudence Determined (1832) (CUP, Wilfred Rumble ed 1995) 21 (original emphasis).
28.
Jeremy Bentham , Of Laws in General (HLA Hart ed) (Athlone 1970) written in 1782.
29.
Joseph Raz, The Authority of Law (2nd edn, OUP 2009). Both have been embraced by the legal and political academic communities as contributing the most compelling displays of contemporary positivism. Coleman described Hart’s Concept of Law as ‘the most important and influential book in the legal positivist tradition [and] its importance is undisputed.’ Jules Coleman, ‘Incorporationism, Conventionality, and the Practical Difference Thesis’ (1998) 4 Legal Theory 381. A recital of further literature demonstrating the prominence of these two jurisprudes would not provide much benefit here. Instead, see an introduction by Stephen Guest, Ronald Dworkin (3rd edn, SUP 2012) 22. With thanks to Daniel Davison-Vecchione, for our numerous illuminating conversations on these subjects.
30.
HLA Hart, The Concept of Law (3rd edn, OUP 2012) 80.
31.
Ibid., 185–186.
32.
Ibid., 185–186; Joseph Raz, ‘About Morality and the Nature of Law’ (2003) 48 American Journal of Jurisprudence 1.
33.
Ibid., 94. Cf Joseph Raz, ‘Can There Be a Theory of Law?’ in Martin Golding and William Edmundson (eds) The Blackwell Guide to the Philosophy of Law and Legal Theory (Blackwell 2005) 332 (denying Hart’s Rule of Recognition, but endorsing the importance of convention among elected officials).
34.
Coleman (n 29) 385; 385 fn9 (comparing elements of Hart to those of Raz, but concluding that official conventionality is ‘common to all positivists.’)
35.
Hart (n 30) 79–99.
36.
Austin (n 27) 166. Austin also viewed constitutional law as an example of ‘positive morality’, which he separated from law itself. John Austin, Lectures on Jurisprudence and the Philosophy of Positive Law (1869) (Scholarly Press 1977) 107. Cf the irreconcilable yet basic tenet of constitutional law, that ‘an unconstitutional act is not a law; it confers no rights; it imposes no duties…as though it had never been passed.’ (Norton v Shelby County 118 US 425 (1886) 426).
37.
A far deeper explanation can be found in Hart (n 30) and Scott Shapiro, ‘The “Hart-Dworkin” Debate: A Short Guide for the Perplexed’ in Arthur Ripstein (ed) Ronald Dworkin (CUP 2007) 22–49.
38.
Ronald Dworkin, Taking Rights Seriously (Gerald Duckworth 1977) 149.
39.
David Hume, A Treatise of Human Nature (1738) (Penguin edn, 1985) 494.
40.
John Locke, An Essay Concerning Human Understanding (1690) (Prometheus edn, 1995) Book I, ii, 3–5.
41.
Dworkin, Justice for Hedgehogs (n 22) 17.
42.
Ibid., 38–39.
43.
Ibid., 16–17.
44.
Ronald Dworkin, ‘“Natural” Law Revisited’ (1982) 34 University of Florida Law Review 163, 165 & 171.
45.
Thomas Simon, Law and Philosophy (McGraw-Hill 2001) 139–140.
46.
Ronald Dworkin, Law’s Empire (Hart 1986) 225.
47.
Ibid., 164–165.
48.
Ibid., 134; Randall Peerenboom, ‘A Coup D’État in Law’s Empire’ (1990) 9 Law and Philosophy 95, 95–98.
49.
This principle was championed in Reynolds v Sims 377 US 533 (1964); Baker v Carr 369 US 186 (1962) where the Court waded into the political thicket for the first time, paving the way for Reynolds.
50.
Dworkin, Law’s Empire (n 46) 165, to a certain extent honoured in Davis v Bandemer 478 US 109 (1986).
51.
First introduced in Ronald Dworkin, ‘Hard Cases ’ (1975) 88 HLR 1057.
52.
Scot Anderson, ‘Surveying the Realm’ (1987) 73 Iowa Law Review 131, 136.
53.
Dworkin, Law’s Empire (n 46) 37–43, first introduced in Ronald Dworkin, ‘Hard Cases ’ (1975) 88 HLR 1057.
54.
Ronald Dworkin, ‘Thirty Years On’ (2002) 115 HLR 1655, 1677.
55.
First introduced in Ronald Dworkin, ‘Hard Cases ’ (1975) 88 HLR 1057.
56.
Gregory Keating, ‘Justifying Hercules: Ronald Dworkin and the Rule of Law’ (1987) 3 American Bar Foundation Research Journal 525, 527.
57.
Dworkin, Justice for Hedgehogs (n 22) 407.
58.
Dworkin, Taking Rights Seriously (n 38) 36.
59.
Brian Bix, ‘Natural Law Theory’ in Dennis Patterson (ed) A Companion to the Philosophy of Law and Legal Theory (Blackwell 1996) 234.
60.
Dworkin, Law’s Empire (n 46) 93.
61.
George Letsas, A Theory of Interpretation of the European Convention on Human Rights (OUP 2007).
62.
Dworkin, Law’s Empire (n 46) 90.
63.
US Const, Amend XIV.
64.
347 US 483 (1954).
65.
A phrase taken from Learned Hand, The Bill of Rights (HUP 1958) 42, controversially applied to Brown by Herbert Wechsler, ‘Toward Neutral Principles of Constitutional Law’ (1959) 73(1) HLR 1, 16.
66.
Ronald Dworkin, ‘The Bork nomination’ (1987) 34(13) New York Review of Books.
67.
Richard Pildes, ‘Dworkin’s Two Conceptions of Rights’ (2000) 29 Journal of Legal Studies 309, 311–313.
68.
John Rawls, A Theory of Justice (HUP 1971) 251; William Galston, ‘The Obligations of Equality: Review of Sovereign Virtue: The Theory and Practice of Equality, by Ronald Dworkin’ (2010) 63 Review of Politics 607: (‘In contrast to John Rawls, Dworkin does not treat political philosophy as free-standing but sees it as grounded in general ethical values’).
69.
John Rawls, A Theory of Justice (HUP 1971) 262, 324.
70.
Dworkin, Justice for Hedgehogs (n 22) 66.
71.
Ibid., 86.
72.
Allan Hutchinson and John Wakefield, ‘A Hard Look at “Hard Cases”: The nightmare of a noble dreamer’ (1982) 2 Oxford J Legal Studies 86, 99.
73.
Ibid.
74.
Posner described Dworkin as operating with ‘ideal types’. Richard Posner, ‘Conceptions of Legal Theory: A Response to Ronald Dworkin’ (1997) 29 Arizona State Law Review 377, 381.
75.
Dworkin, “Natural” Law Revisited (n 44) 166–170.
76.
Randall Peerenboom, ‘A Coup D’État in Law’s Empire’ (1990) 9 Law and Philosophy 95.
77.
Dworkin, Law’s Empire (n 46) 260.
78.
Ibid., 261.
79.
Ibid.
80.
Ibid., 267.
81.
See Dworkin, Justice for Hedgehogs (n 22) 15–19, 23–96.
82.
A clash might arise between sympathy towards those suddenly burdened with large claims and the responsibility for upholding the contract. The outcome which shows the community in the best light is the right one, according to Dworkin, but both of these concerns can be weighed. Stephen Guest, Ronald Dworkin (3rd edn, SUP 2012) 71.
83.
Ibid.; Mirko Bageric, Punishment & Sentencing (Cavendish 2001) 118–119 (criticising Dworkin’s vagueness).
84.
Michael Green, ‘Dworkin v. The Philosophers’ [2007] University of Illinois Law Review 1477, 1500.
85.
Ibid., 1502.
86.
Brian Leiter, ‘The Law School Observers’ [2001] Green Bag 101, 103: ‘Among philosophers, [Dworkin] has long been overshadowed by Raz, who is generally thought by specialists in the field to be the most important living legal philosopher.’
87.
Joseph Raz, ‘Dworkin: A New Link in the Chain’ (1986) 74 California Law Review 1103, 1118.
88.
Stephen Guest, ‘How to Criticize Ronald Dworkin’s Theory of Law’ (2009) 69(2) Analysis 1, 3.
89.
Dworkin, Justice for Hedgehogs (n 22) 37.
90.
Ibid.
91.
Jack Balkin, ‘Agreements with Hell and Other Objects of our Faith’ (1997) 65 Fordham Law Review 1703, 1704.
92.
Dorothy Roberts, ‘The Meaning of Blacks’ Fidelity to the Constitution’ (1997) 65 Fordham Law Review 1761.
93.
Daniel Levin, Representing Popular Sovereignty (SUNY 1999) 97.
94.
Ibid., 157.
95.
28 USC §453.
96.
Abraham Lincoln, The Gettysburg Address (19 November 1863) www.abrahamlincolnonline.org/lincoln/speeches/gettysburg.htm, accessed 1 May 2017.
97.
Robert Bork, The Tempting of America (Free Press 1990) 200 (arguing that the evolving standards principle invites judges to impose personal philosophy by way of common law constitutional amendments) and Antonin Scalia , ‘Originalism: The Lesser Evil’ (1989) 57 University of Cincinnati Law Review 849, 854 (condemning Dworkin as ‘nonoriginalist’).
98.
Fleming describes these authors as ‘broad originalists’ who conceive understanding of the Constitution at a ‘higher level of abstraction’ than narrow counterparts. James Fleming, ‘The Place of History and Philosophy in the Moral Reading of the American Constitution’ in Scott Hershovitz (ed) Exploring Law’s Empire (OUP 2008) 24–25.
99.
For clarity this thesis adopts Barber and Fleming’s scale of fidelist ideology, the right end at which are Bork, Scalia, and Rehnquist and with Dworkin residing at the far left. Sotirios Barber and James Fleming, Constitutional Interpretation (OUP 2007) 100–102, 101 fn5.
100.
Bruce Ackerman, We the People Volume 1: Foundations (HUP 1991) 6–16; Lawrence Lessig, ‘Fidelity in Translation’ (1993) 71 Texas Law Review 1165, 1259–1261; Cass Sunstein, ‘Earl Warren is Dead’ New Republic (Washington, 13 May 1996).
101.
Brian Tamanaha, ‘The History and Elements of the Rule of Law’ [2012] Singapore Journal of Legal Studies 232: ‘the notion of the rule of law is perhaps the most powerful and often repeated political ideal in contemporary global discourse.’ Cf Jeremy Waldron, ‘Is the Rule of Law an Essentially Contested Concept (in Florida)?’ (2002) 21 Law & Philosophy 137.
102.
Paul Craig, ‘Formal and substantive conceptions of the rule of law’ (1997) 21 Public Law 467, 479.
103.
Ibid., 487.
104.
John Anderson, Why Lawyers Derail Justice (Pennsylvania State University Press 1999) 85.
105.
Another example of those who reject Dworkin’s aspirations is Ely, who argued that ‘[o]ur society does not, rightly does not, accept the notion of a discoverable and objectively valid set of moral principles […] that could plausibly serve to overturn the decisions of our elected representatives.’ John Hart Ely, Democracy and Distrust (HUP 1980) 54. As shown by long-established precedent and the prevailing view of this book that interpretivism provides the “best fit” for the Eighth Amendment, Ely’s refutation of the providence of the Supreme Court as an interpreter is antithetical to the principle of evolving standards of decency.
106.
The Ninth Amendment provides for ‘[t]he enumeration in the Constitution, of certain rights’. US Const, Amend VIX. See Griswold v Connecticut 381 US 479 (1965) 485, where the Court found a right to privacy contained in the Constitution’s ‘penumbral rights’.
107.
George Letsas, ‘Dworkin on Human Rights’ (2015) 6 Jurisprudence 327, 333.
108.
Thom Brooks, ‘Book Review’ (2006) 69 Modern Law Review 140: ‘It is quite rare to find anyone in the field identifying herself as a “Dworkinian”’.
109.
Fleming in Hershovitz (n 119) 35, endorsed as ‘very good advice’ by Dworkin in Hershovitz (ibid.) 294.
110.
James Madison, The Federalist (Terence Ball ed, CUP 2003) No 48, 241.
111.
Natasa Mavronicola, ‘Heeding human dignity’s call—Review: Human Rights and Constitutionalism in Europe’ (2016) 36 Legal Studies 725, 737.
112.
Kristen Loveland, ‘Death and its Dignities’ (2016) 91 New York University Law Review 1279, 1304–1308.
113.
Ibid., 1306, quoting Leslie Meltzer Henry, ‘The Jurisprudence of Dignity’ (2011) 160 University of Pennsylvania Law Review 169, 221.
114.
Meltzer Henry (ibid.) 173 fnn18–26.
115.
Bharat Malkani, ‘Dignity and the Death Penalty in the US Supreme Court’ (2016) 44 Hastings Constitutional Law Quarterly 145, 153 fn41. Malkani makes an interesting observation throughout his paper that there is inconsistency in the conceptions of dignity invoked throughout Eighth Amendment precedent.

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School of Law, University of Surrey, Guildford, UK
Charlie Eastaugh

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Eastaugh, C. (2017). An Adjudicative Framework: Morality and the Punishments Clause. In: Unconstitutional Solitude. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-61735-0_2

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DOI: https://doi.org/10.1007/978-3-319-61735-0_2
Published: 12 October 2017
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