The Antidiscrimination Eighth Amendment
Claus, Laurence, Harvard Journal of Law & Public Policy
I. INTRODUCTION II. COLONIAL RECEPTION III. THE EIGHTH AMENDMENT IV. ADOPTION IN THE STATES V. IMPLICATIONS FOR INTERPRETATION VI. WHAT THE ENGLISH BILL OF RIGHTS DID VII. BLACKSTONE'S OPINION AND ITS AMERICAN RECEPTION VIII. THE CRUEL AND UNUSUAL PUNISHMENTS CLAUSE OF 1791 IX. THE CONSTITUTION'S PROHIBITION OF BILLS OF ATTAINER X. THE FORK IN THE ROAD: HOW THE NONDISCRIMINATION PRINCIPLE LOST PROMINENCE XI. IS THE EIGHTH AMENDMENT A CHAMELEON? XII. THE REQUIREMENT OF NONDISCRIMINATION XIII. DECIDING ATKINS AND EWING
What is the Eighth Amendment really about? Members of the Supreme Court in two recent cases offered alternative visions of the Amendment's function. (1) According to Justice John Paul Stevens, "The Eighth Amendment succinctly prohibits '[e]xcessive' sanctions." (2) The Amendment uses this term twice: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (3) Dissenting from the Court's vindication of California's "three-strikes" law, Justice Stevens observed: "It 'would be anomalous indeed' to suggest that the Eighth Amendment makes proportionality review applicable in the context of bail and fines but not in the context of other forms of punishment, such as imprisonment." (4) Justice Antonin Scalia, on the other hand, understands the Cruel and Unusual Punishments Clause of the Eighth Amendment to condemn "only certain modes of punishment." (5) In particular, the Amendment prohibits two categories of punishment: "those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted," (6) and "modes of punishment that are inconsistent with modern 'standards of decency,' as evinced by objective indicia, the most important of which is 'legislation enacted by the country's legislatures.'" (7) Consequently, Justice Scalia dissented from the Court's conclusion that imposing death sentences on mentally retarded offenders violates the Amendment. (8)
Both Justices miss the principle at the Eighth Amendment's core. Neither the Stevens vision of an "excessiveness" amendment, nor the Scalia vision of a "vicious methods" amendment, adequately fits the Amendment's history any better than it fits the Amendment's language. And that language invites an historical inquiry. It is the text of the Amendment that seems "anomalous indeed." If that text were meant simply to condemn excessive punishment, why does it not say so? The term "excessive" was, alter all, on the tips of the drafters' tongues, for they used it in respect to bail and fines. Why was it not deployed more generally? On the other hand, if the Cruel and Unusual Punishments Clause were about vicious methods of punishment, why would the Amendment condemn excessiveness at all? Why, in particular, would excessiveness in fines warrant a special condemnation from which excessiveness in other acceptable methods of punishment was exempted?
History resolves the Eighth Amendment's linguistic anomaly by revealing that the Amendment was meant to address a problem distinct from either excessive punishment or vicious punishment. That problem was discriminatory punishment. The principle that lies behind the Eighth Amendment is nondiscrimination. The Eighth Amendment is a founding-era expression of equal protection. Its specific provision concerning punishments was a forerunner to the sweeping generality of the Fourteenth Amendment's Equal Protection Clause. The Court implicitly recognized as much in Furman v. Georgia when condemning broad judicial discretion to impose the death penalty. (9) In the words of Justice Douglas:
The high service rendered by the "cruel and unusual" punishment clause of the Eighth Amendment is to require legislatures to write penal laws that are evenhanded, nonselective, and nonarbitrary, and to require judges to see to it that general laws are not applied sparsely, selectively, and spottily to unpopular groups. …