Cruel and Unusual: A Supreme Dilemma of Eighth Amendment Jurisprudence

One of the first actions of the second Trump administration was to issue an executive order reversing a Biden-era moratorium on all federal executions. The stage is therefore set for recurring legal battles between the Justice Department and anti-death penalty advocates who argue that the practice violates the Eighth Amendment, making the possibility for review by the U.S. Supreme Court (SCOTUS) likely. In light of new Eighth Amendment challenges appearing before this Court, the justices must wrestle with difficult legal questions: what are the origins and original intent of the text? And how has the historical development of Eighth Amendment jurisprudence fallen short of that constitutional reality?

Ratified by Congress in 1789, the Eighth Amendment in full reads that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Founding Fathers were undoubtedly influenced by their English heritage. In 1689, the Convention Parliament wrote into the English Bill of Rights nearly identical language shielding the crown’s subjects from excessive bail, fines, or cruel and unusual punishments. The original intent of this provision was to limit the otherwise unchecked power of the political sovereign in order to safeguard the essential rights of the people.

Patrick Henry, Currier & Ives

Likewise, when the task fell on the states to ratify the proposed Constitution, concern lingered that without the inclusion of an enumerated bill of rights that limits the power of the political sovereign—which, in America, is the voting public—government would retain the ability to infringe upon unalienable rights. At the 1788 Virginia Ratifying Convention in Richmond, Patrick Henry articulated this fear:

When we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives. What says our [Virginia] bill of rights?—‘that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ Are you not, therefore, now calling on those gentlemen who are to compose Congress, to…define punishments without this control?…What has distinguished our ancestors?—That they would not admit of tortures, or cruel and barbarous punishment.

Evidently, the language which would be assumed under the Eighth Amendment originates from the intent of delegates to secure proper respect for the unalienable rights of all people. By itself, the regime of checks and balances outlined in the Constitution, which acts as an institutionalized constraint on the democratic will, was deemed insufficient to guard against state abuses.

Although the Anglo-Saxon origins of our Bill of Rights reveal the express intent of the Framers to limit the power of the sovereign authority, the philosophical underpinning of the Eighth Amendment is far more ancient than even our English heritage. In fact, the legalization of essential liberties rests upon the notion of dignitas humana (human dignity), which the Roman thinker Cicero defined broadly as the naturally ordained equality of all humans. To him, human dignity is a natural condition beyond any possible human denial. Indeed, as he writes in De Legibus, “it is coeval with that God who guards and rules heaven and earth.” The belief that all men and women share an inherent worth has endured in mainstream political thought and was surely held by the Framers. After all, the prohibition on cruel or unusual punishments was not a legislative grant of right, but rather an express affirmation and defense of the intrinsic humanity we all share.

If the Framers had meant for the Eighth Amendment to be constitutive of their effort to keep essential liberty, reflective of our intrinsic dignity, from being infringed upon by the popular will, then surely the justices would give deference to this history in their Eighth Amendment jurisprudence, right? Well, not exactly. Practical application of the cruel and unusual punishments clause has proven more complicated.

The subjective language of the Eighth Amendment has made it difficult for SCOTUS to devise a consistent jurisprudence. In fact, the Court did not issue a decision clarifying the scope of the cruel and unusual punishments clause until 1879 when Justice Clifford wrote for the unanimous body in Wilkerson v. Utah that “difficulty would attend the effort to define with exactness the extent of the constitutional provision.” Since at least 1910, however, the Court has recognized the need for a dynamic jurisprudence, one bound by an evolving understanding of human dignity. For the majority in Weems v. United States, Justice McKenna wrote:

The Eighth Amendment is progressive and does not prohibit merely cruel and unusual punishments known in 1689 and 1787, but may acquire wider meaning as public opinion becomes enlightened by humane justice.

In recognition of the Framers’ belief that the effort to enshrine essential liberties reaches toward a transcendent, Ciceronian dignity common to all people, SCOTUS clarified that the legal understanding of “cruel” and “unusual” cannot be static as to encompass only a single generation’s morality but must be guided by gradual societal recognition of the true nature of the intrinsic humanity we all share.

Justice Joseph McKenna

Subsequent interpretations of the Eighth Amendment have been uniform in declaring that the text restrains the authority of the political sovereign to infringe upon the essential liberties of any individual. Further, the Weems view of the Eighth Amendment as dynamic, evolving in response to the maturing societal understanding of our naturally-ordained human dignity, has also endured as precedent. The dilemma, then, is clear: the Court professes to shield our fundamental liberties from the democratic will at the same time as it relies on majoritarian attitudes to define the legal standards of “cruel” and “unusual.”

Since Weems, the Court’s deference to a majoritarian understanding of “cruel” and “unusual” in Eighth Amendment jurisprudence has been in the form of the objective evidence test, an analytical tool used to measure public morality and gauge public opinion in order to determine whether penalties were proportioned to offenses. However, such an unchecked reliance on majoritarian views to dictate the standards of justice may perpetuate unjust outcomes. Primary accounts of the early deliberations in Brown v. Board of Education (1954), to highlight one example, suggest that Justice Reed was prepared to affirm the “separate but equal” doctrine of Plessy and leave the question of segregation to Congress—a democratic determination of human dignity antithetical to the Bill of Rights.

Subsequent cases have attempted to reconcile the objective evidence test with the recognized intent of the Eighth Amendment to shield our innate human dignity from the political sovereign—the people. In 1958, Trop v. Dulles expanded the test to include analysis of the practices of other “civilized” nations, the intent being to verify the public understanding of “cruel” and “unusual” discovered in the American conscious against a more diverse collection of moral values. However, Trop confines analysis of foreign law to a solely confirmatory role, meaning that it is still a democratic majority in the United States which dictates interpretation of the Eighth Amendment.

In 1989, SCOTUS in Penry v. Lynaugh sought to further dilute the primacy of the popular will in the objective evidence test by establishing a tally of legislative statutes as the “clearest and most reliable objective evidence of contemporary values.” In theory, the principles of representative government provide institutional constraint on majoritarian rule and defend against the worst impulses of the people. However, representatives being “of the people” themselves, republicanism cannot protect against a climate of unjust morality in the way the Eighth Amendment demands.

Today, the objective evidence test remains the principal measure by which SCOTUS defines standards of “cruel” and “unusual.” In 1977, however, the Court in Corker v. Georgia established a separate analytical tool, the independent judgement doctrine. Per Justice White:

Recent events evidencing the attitude of state legislatures and sentencing juries do not wholly determine this controversy, for the Constitution contemplates that, in the end, our own judgement will be brought to bear on the acceptability of the death penalty under the Eighth Amendment.

But there is no basis to the implication that, by virtue of prestige, justices would hold conceptions of the true, transcendent nature of human dignity “superior to those of the common herd.” They are lawyers, not scholars of morality, nor are they imbued with any special moral insight upon appointment. While emblematic of the Court’s decades-long effort to resolve the dilemma of Eighth Amendment interpretation, the independent judgement doctrine is ultimately an ineffectual check on the majoritarian objective evidence test.

This sequence of cases shows an intentional move away from defining legal standards of “cruel” and “unusual” through an unchecked deference to popular sentiment. Despite the endurance of a flawed jurisprudence, the justices nevertheless show a desire—however difficult—to innovate a jurisprudence more aligned with the original intent of the Framers, to place our natural human dignity out of the reach of democratic infringement. As the Court prepares to consider new Eighth Amendment controversies, the justices must persist in the endeavor to minimize the primacy of democratic influence in their interpretive methodology.