The words of the Eighth Amendment have a history much longer than the life of the Amendment itself. When the First Congress chose to include those words in the United States Constitution's Bill of Rights, the assembled legislators were appropriating an artifact of their English heritage. At that moment, the language was celebrating its centenary, having first been drafted and adopted by the English Parliament in the Bill of Rights of 1689. (1)
Parliament enacted the 1689 Bill of Rights to articulate limitations on what future monarchs could do. A century later, Congress included the Eighth Amendment's historic language among limitations on what the new American nation's government could do. Many of the Revolutionary American states had already employed the words to limit their own governments, starting with Virginia in 1776. (2) Those states had, in the wake of independence, created bills of rights that recited the historic prohibition of excessive bail, excessive fines, and cruel and unusual punishments. (3) But the deliberations on whether to include that prohibition, both in the national Bill of Rights and in those of the states, were rather perfunctory. This suggests that in adopting the language, the American Founders were reflexively claiming part of their English heritage, part of what they had fought for, part of what they alleged had been denied them by a monarch and an unrepresentative Parliament in the pre-Revolutionary period. That conclusion invites an inference that the American Founders meant the Amendment's language to fulfill the function that it had historically fulfilled for the English. (4)
The strategy of adopting seriatim lists to allege political wrongdoing and to assert political entitlements is embedded in the English political tradition, going back to Magna Carta. (5) The very use of the phrase "bills of rights" in popular parlance to describe the new documents that the Revolutionary American states adopted was an allusion to the English Bill of Rights. Likewise, the American Declaration of Independence imitated the seriatim listing of wrongs that opened the English Declaration of Rights, as the English Bill of Rights had been called prior to its passage through Parliament in 1689.
The English Declaration recited wrongs committed by government under the just-ousted King James II. Among those wrongs, complained the authors of the English Declaration, were "excessive Bail," "excessive Fines," and "illegal and cruel punishments." (6) Corresponding to the recited wrongs, the declarants listed rights that future monarchs would have to respect. Among these was the assertion "[t]hat excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted." (7)
Thomas Jefferson seized on the English Declaration's format when drafting the Declaration of Independence. His list of wrongs substituted George for James, reminding the English that they, too, had rebelled against an oppressive monarch who had not accorded them the historic rights of Englishmen. This strategy for alleging wrongs and for asserting entitlements continued as the newly-independent states adopted "bills of rights." It was manifested again in the First Congress's choice to mirror the English format and to propose such a list of entitlements for inclusion in the national Constitution.
The Eighth Amendment's history invites inquiry as to what its language of excessive bail, excessive fines, and cruel and unusual punishments meant to the English. That language had been conceived in reaction to ways in which courts in the 1680s, especially during the reign of James II, had treated the King's political and religious enemies. The words were meant to establish an objective inquiry. They did not purport to authorize a clash of subjective impressions. Excessiveness was prohibited only in respect of bail and fines, not in respect of punishments generally, because excessiveness in bail and fines could be measured objectively. …