Tag Archives: eighth amendment

Evolving standards of decency

Samuel Livermore, Representative of New Hampshire, argued in Congress that the phrasing of the Eighth Amendment was much too vague:

The clause seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary.  What is meant by the term excessive bail?  Who are to be the judges?  What is understood by excessive fines?  It lies with the court to determine.  No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prevented from inflicting these punishments because they are cruel?

The whole debate is amazing reading.  The words of the Constitution and the Bill of Rights are almost scripturally familiar to us now; but it’s important always to have in mind that the document was cobbled together by committee, and that the precise intent, function, and implication of those words were as underdetermined and contingent in 1789 as they are now.  The Constitution is not scripture, and surely it’s healthy to put ourselves from time to time in the presence of people who were allowed to ask not only what the Constitution says but what it ought to say.

(Which is not to say that I think the Constitution should have specifically licensed judicial auriculectomy.)



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