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Interpretation: The Tenth Amendment | The National Constitution Center
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Professor of Clinical Law, New York University School of Law, and Executive Director, Equal Justice Initiative. Professor of Law and Assistant Director, Criminal Justice Center, University of Florida Levin College of Law. The Cruel and Unusual Punishments Clause is the most important and controversial part of the Eighth Amendment. In some ways, the Clause is shrouded in mystery.
Inthis same prohibition became the central component of the Eighth Amendment to the United States Constitution. When the United States Constitution was first ratified by the states, it did not contain a Bill of Rights, and it did not prohibit cruel and unusual punishments, why marijuana should be legal essay. These protections were not added until after the Constitution was ratified. The debates that occurred while the states were why marijuana should be legal essay whether to ratify the Constitution shed some light on the meaning of the Cruel and Unusual Punishments Clause, because they show why many people thought this Clause was needed.
The proposed Constitution made the federal government much more powerful than it had been under the Articles of Confederation. One of the most significant of these new powers was the power to create federal crimes and to punish those who committed them. Opponents of the Constitution feared that this new power would allow Congress to use cruel punishments as a tool for oppressing the people.
may introduce the practice of France, Spain, and Germany of torturing, to extort a confession of the crime. will tell you that there is such a necessity of strengthening the arm of government, that they must.
extort confession by torture, in order to punish with still more relentless severity. We are then lost and undone. If the federal government tried to bring back the rack, or thumbscrews, or gibbets as instruments of punishment, such efforts would pretty clearly violate the Eighth Amendment.
But once we get beyond these areas of agreement, there are many areas of passionate disagreement concerning the meaning and application of the Cruel and Unusual Punishments Clause:.
First and foremost, what standard should the Court use in deciding whether a punishment is unconstitutionally cruel? Should it look to the standards ofwhen the Eighth Amendment was adopted? Should it look to contemporary public opinion? Should it exercise its own moral judgment, irrespective of whether it is supported by societal consensus? Should it look to some other standard? Second, does the Cruel and Unusual Punishments Clause only prohibit barbaric methods of punishment, or does it also prohibit punishments that are disproportionate to the offense?
For example, would it violate the Eighth Amendment to impose a life sentence for a parking violation? Third, does the Cruel and Unusual Punishments Clause prohibit the death penalty? Many argue that capital punishment fails to advance any public good, that it is of a past era, and it should be eliminated.
Proponents of the death penalty argue that some people have committed such atrocious crimes that they deserve death, why marijuana should be legal essay that the death penalty may deter others from committing atrocious crimes.
They also point out that the punishment is authorized in a majority of states, and public opinion polls continue to show broad support for it.
There is not time or space here to answer all these questions, but the essays that follow will demonstrate differing ways of approaching several of them. This essay concerns the original meaning of the Cruel and Unusual Punishments Clause. It argues that the Constitution should be interpreted in accordance with its original public meaning, and it demonstrates what effect such an interpretation would have in the real world. In recent years, some judges and scholars have argued that the meaning of the Constitution should change as societal values change.
Dulles This approach allows the Supreme Court to get to whatever result it considers desirable, regardless of what the text of the Constitution actually means. Originalists object to this approach for many reasons, including the fact that it is inconsistent with democratic principles and the rule of law. In response to the non-originalist approach to the Constitution, some judges and scholars — most prominently Justices Scalia and Thomas — have argued for a very narrow approach to original meaning that is almost willfully indifferent to current societal needs.
To understand their approach, let us revisit the four questions raised in the joint statement concerning the settled history and meaning of the Eighth Amendment: 1 What standard should the Court use in deciding whether a punishment is unconstitutionally cruel? Justices Scalia and Thomas argue that the four questions raised above should be answered as follows: 1 The standards of cruelty that prevailed inthe year the Eighth Amendment was adopted, provide the appropriate benchmark for determining whether why marijuana should be legal essay punishment is cruel and unusual.
If a punishment was acceptable init must be acceptable today. A life sentence for a parking violation, for example, would not violate the Constitution. crime, unless on a presentment or indictment of a Grand Jury. nor be deprived of life. without due process of law. Since flogging, branding, and various forms of bodily mutilation were permissible in the Eighteenth Century, few modern forms of punishment are likely to fall into this category, why marijuana should be legal essay.
In other words, a common punishment might be more cruel than a rare one: For example, it would be more cruel to commit torture on a mass scale than on rare occasions, not less.
The best way to understand this is to run through those four questions once again, using our new understanding of the original meaning of the Clause:, why marijuana should be legal essay.
Rather, the benchmark is longstanding prior practice. If a given punishment has been continuously used why marijuana should be legal essay a very long time, this is powerful evidence that multiple generations of Americans have considered it reasonable and just. This does not mean that any punishment that was once part of our tradition can still be used today.
If a once-traditional punishment falls out why marijuana should be legal essay usage for several generations, it becomes unusual.
If a legislature then tries to reintroduce it, courts should compare how harsh it is relative to those punishment practices that are still part of our tradition.
If a punishment is significantly why marijuana should be legal essay than punishments traditionally given for the same or similar crimes, it is cruel and unusual, even though the same punishment might be acceptable for other crimes.
For example, it would be cruel and unusual to impose a life sentence for a parking violation, but not for murder. If it fell out of usage for multiple generations, however, it might become cruel and unusual. This has already occurred with respect to some once-traditional applications of the death penalty. It is no longer constitutional to execute a person for theft, for example, because this punishment fell out of usage for this crime a long time ago, and the punishments that have replaced it are far less severe.
If a court were to find that their effect is significantly harsher than the longstanding punishment practices they have replaced, it could appropriately find them cruel and unusual. InAaron Burr, the sitting Vice President of the United States, shot and killed Alexander Hamilton in a duel that took place in New Jersey. Burr lost the election, and he blamed Hamilton, so he challenged Hamilton to a duel. Dueling continued in the United States until the midth century.
Burr was never prosecuted for the murder of Hamilton. Today, dueling is deemed unconscionable. No American leader could credibly support dueling as an acceptable method for resolving conflicts.
It is hard for us now to understand how the Framers of our Constitution could embrace such a misguided and barbaric practice. To become a great country, America needs its laws and basic constitutional principles to evolve as our understanding of human capacity and behavior deepens. The greatness of our Constitution and America itself is dependent on how the Constitution is interpreted to ensure that all people are treated equally and fairly and have the same opportunity to exercise the rights to life, liberty, and the pursuit of happiness as the exclusive group of men who authored the Constitution.
As our notions of fairness, equality, and justice have evolved, so too must our interpretation of the Constitution, why marijuana should be legal essay. No provision of the Constitution enshrines this principle more clearly than the Eighth Amendment.
This approach begs complex questions, such as who decides what is decent and what is cruel? Throughout its history, the Court has ruled that certain practices are unconstitutional or indecent even when such practices were popular. Ending racial segregation in schools or restaurants and striking down bans on interracial marriage never could have been achieved by a popular vote in the American South. Black people were a political minority, and policies that denied their basic rights were extremely popular.
Accordingly, progressives believe the Court must protect the disfavored, the unpopular, the minority groups who can expect no protection from officials elected by majority vote. For progressives, what constitutes cruel punishment cannot be resolved by opinion polls or the popularity of the punishment. The legitimacy of a punishment must be assessed instead by evaluating whether it serves an appropriate and acceptable penological purpose.
In this respect, the Eighth Amendment does not merely prohibit barbaric punishments; it also bars disproportionate penalties. A sentence of life imprisonment without parole may be acceptable for some crimes, but it would violate the Constitution to condemn anyone to die in prison for shoplifting or simple marijuana possession. For progressives, the constitutionality of a particular punishment cannot be evaluated in the abstract. The decency or legitimacy of a punishment can be assessed reliably only in context.
I believe that the question whether the death penalty violates the Eighth Amendment cannot be resolved by simply asking whether a person deserves to die for the crime he has committed. I believe we must first ask whether we deserve to kill. If we have a death penalty that is applied in a racially discriminatory manner, where the race of the victim shapes who gets the death penalty and who does not; if we have a death penalty that is imposed not on the rich and guilty but on the poor and innocent; if we execute people with methods that are torturous and inhumane, then we have a death penalty that violates the Eighth Amendment.
Since the modern era of capital punishment in the United States began in the s, people have been proven innocent after being sentenced to death. We have executed more than people during the same time period. For every nine people executed, one innocent person has been exonerated. For progressives, this is an unacceptably high rate of error: The probability that an innocent person has been or will be executed offends our standards of decency, and renders the death penalty cruel and unusual punishment that violates the Eighth Why marijuana should be legal essay. Fairness, reliability, racial discrimination, bias against the poor, why marijuana should be legal essay, political arbitrariness, and other factors that did not trouble the framers of the Constitution, nonetheless shape how a decent society must interpret the Eighth Amendment today, why marijuana should be legal essay.
For progressives, the Constitution must evolve and be interpreted so that why marijuana should be legal essay rights of people who are less favored, less protected, and less influential are not sacrificed to serve the interests of the powerful and the popular. The framers of the American Constitution should be celebrated for creating a prohibition on punishments which are cruel and unusual; but it is incumbent on all of us to insist on why marijuana should be legal essay Court that applies the prohibition fairly, sensibly and justly for an evolving nation.
Judges and law professors discuss problems facing the American criminal justice system, as well as the prospective reforms. On September 11,terrorist attacks carried out against the United States would become the catalyst for at least two wars,….
In this fast-paced and fun session, President and CEO Jeffrey Rosen and Chief Learning Officer Kerry Sautner join students to…. About National Constitution Center Donate Constitutional Exchanges. Constitutional Conversations Online Learning Opportunities Professional Development. Amendment 8 Collapse Text Menu Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Amendment 8. The Eighth Amendment by Bryan A. Stevenson and John F.
3 Arguments Why Marijuana Should Stay Illegal Reviewed
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This essay is part of a discussion about the Tenth Amendment with Gary Lawson, Philip S. Beck Professor of Law, Boston University School of Law. Read the full discussion here. By way of policy justification, the Court has suggested that it must draw clear Writing essays for homework doesn’t have to be the painstaking task it may seem. With the right resources accessible to you easily, it can become the enjoyable learning experience it’s meant to be. Essay writing assignments can be nerve wracking enough as it is. But with a due date right around Nov 13, · The percentage of to year-olds using marijuana is higher in every legal marijuana state than the national average. For example, % of Colorado teens and % of teens in Alaska reported marijuana use in the past year, compared to an average of % for the United States overall in
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