The Amendments Series: No Cruel or Unusual Punishment

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The Eighth Amendment is one of those amendments that really spoils all the police shows we love to watch. You know, the ones where the hero officer finally gets the bad guy and the bad guy just will not tell the hero officer where the kidnapped little girl is. This is when the officer closes the door to that holding cell, or asks his partner to step out, and we all know what’s coming–in fact, we’re all rooting for what’s coming. He’s going to inflict some form of cruel or unusual punishment on the perpetrator in order to force out the information he needs to solve the case.

And who are we usually rooting for in this scenario? Well, of course, the hero officer.

It’s funny to look at the way that even our entertainment conditions us to see an abusive government in a positive light, as if, there’s never a scenario where the supposed “bad guy” is innocent and was never given the chance to defend himself.

So, let’s take a look at what the amendment, the Eighth Amendment, that deals with this very topic actually says. It’s a rather simple amendment and yet has been the subject of much debate and confusion. The amendment says:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

That’s it. That’s the whole amendment. So, I’m sure you’re now thinking. Well, what is excessive? What is cruel and unusual?

Yup, you’re asking all the questions that courts and the government have been asking for centuries now. So, let’s start with a little historical context.

Historical Context

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The founders, especially the anti-federalists, were incredibly wary of a cruel government. Consider the historical time period during which they lived, where various devious forms of torture were commonly used on individuals as a means of oppression and government control.

The Anti-Federalists felt compelled to demand that the new Constitution have some sort of explicit prohibition of any sort of cruel or unusual punishment (although, again, if the federal government were following its job description, the Constitution, there would be no cause for concern because the federal government couldn’t dabble in the realm of almost all crime).

The use of the word “unusual” is itself a bit unusual. What and why would the founders feel the need to explicitly command the federal government, via the Constitution, to never inflict unusual punishment on its citizenry?

According to the brilliant minds at the Constitution Center, the phrase was first used in England in 1689. Then, in 1776, George Mason, in the Declaration of Rights he drafted for the Commonwealth of Virginia, specifically prohibited the Virginia government from using any cruel and unusual punishments.

But why the word unusual? Perhaps a few quotes from the founders will help with this. Abraham Holmes, an anti-federalist, when arguing for the inclusion of a Bill of Rights, said:

“They [that is, the new federal government] are nowhere restrained from inventing the most cruel and unheard-of punishments, and annexing them to crimes; and there is no constitutional check on them, but that racks and gibbets may be amongst the most mild instruments of their discipline.”

And Patrick Henry said:

“Congress . . . may introduce the practice of France, Spain, and Germany of torturing, to extort a confession of the crime. They . . . 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.”

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When I read these quotes, I realized that the 16th century was not that far removed from the Dark or “Middle” Ages. Governments used all forms of torture—cruel and yes, very unusual—to impose their will on their subjects. My suspicion is that England, when including this phrase during the 15th Century, was attempting to bring to an end to such wicked and unusual devices.

The Americans, many from England, picked up this aversion to excessively cruel and unusual punishments or methods of torture and therefore wanted to firmly establish that the U.S. government could never engage in such behavior against its citizenry.

Of course, this does mean—at least according to some legal scholars—that usual or commonly practiced and accepted punishment is considered Constitutional. In other words, “A punishment is cruel and unusual if it is ‘cruel in light of long usage’ – that is, cruel in comparison to longstanding prior practice or tradition.”

I’ll let y’all ponder this point a bit.

The Debates

As you can imagine though, there are numerous debates about the meanings of these rather ambiguous terms. For instance, is the death penalty cruel and unusual punishment? What about different types of punishments like solitary confinement? And would it be considered cruel and unusual to enforce punishments that are disproportionate to the crime? For instance, life in prison because of a parking ticket?

What is the standard for the Eighth Amendment? Who sets the standards for how to define cruel or unusual punishment, or what excessive bail might mean? Is that something set by the “people” and legislatures or the courts? Is that something that should be left to subjective interpretation by people today or should it be based on the standards and definitions from 1791?

Further, how relevant are these interpretations if the federal government isn’t the one utilizing most forms of criminal punishment since almost all crime is left to the states? Can states engage in cruel and unusual punishments? What about the state Constitutions and the amendments that prevent such practices?

If the meaning of the Eighth Amendment is an ambiguous standard left to modern day politicians to interpret, that means their power is limitless and expansive, but if we look only at the standards in the 1790s, we may find that some of their expectations and understanding of cruel and unusual are not what we understand those terms to mean today. For instance, we do not put someone to death by publicly hanging them anymore, or condone public duals—such as the one that killed Alexander Hamilton; but in 1791, both were accepted practices (Constitution Center).

I am not a legal scholar so I don’t claim to have the answers to all of these questions. What I will say is this. After reading arguments from both sides of the debates, we run into trouble when we open the door to “modern interpretation”.

restricting wire fence in industrial district

Dr. Stinneford astutely says: “Chief Justice Earl Warren once famously wrote that the Cruel and Unusual Punishments Clause should ‘draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’ Trop v. Dulles (1958). This approach allows the Supreme Court to get to whatever result it considers desirable, regardless of what the text of the Constitution actually means. If the Court wanted to get rid of the death penalty, for example, it could simply announce that the death penalty no longer comports with current ‘standards of decency,’ and thereby abolish it.”

Clearly this type of arbitrary and fluid interpretation would be a problem. There needs to be a baseline, a standard. However, currently, it appears that courts are walking a fine line between being the sole interpreters of law based on their own subjective idea of “societal decency” and upholding the historical interpretations and understanding of cruel and unusual punishment. I’d suggest reading Dr. Stinneford’s essay on this particular question to learn more.


Ultimately, the heart of the Eighth Amendment is what matters. The founders didn’t want the federal government to use excessive force or cruel punishment to oppress their citizens. It all goes back to the foundational principles upon which the founders based the U.S. government. The government exists merely to protect us and our private property from each other. The Constitution is supposed to protect us and our private property from an abusive government.

Jefferson said of the law and of the judge, “Let mercy be the character of the law-giver, but let the judge be a mere machine.”

In other words, the law is what matters, never the judge’s subjective feelings and understanding of the law. Why? Because, as Thomas Paine says, “An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret and to misapply even the best of laws.”

Men cannot be trusted. Only law. According to Jefferson then, judges should be mere machines, robotically applying the law in relevant cases.

So, I ask you. How far has America drifted from this basic principle and understanding of the courts?

Pay attention to something for me. From which branch of government do most of the amendments in the Bill of Rights protect us?

grey steel grill

The judicial branch of government.

Interesting, wouldn’t you say? Especially, given that Hamilton even called it the “least dangerous branch” and given that it is the most respected and approved branch in America today?

Perhaps this is why their power has grown unfettered and with such little resistance. The court’s power is silent but deadly.

Friends, we must be awake, we must pay attention. It’s the courts today that are the most active branch in tearing down our liberties—subjective interpretation by subjective interpretation.

I’ll repeat Jefferson’s quote, but this time, I’ll finish it.

“Let mercy be the character of the law-giver, but let the judge be a mere machine. The mercies of the law will be dispensed equally and impartially to every description of men; those of the judge, or of the executive power, will be the eccentric impulses of whimsical, capricious designing man.”

Ah yes, we’re now reaping the reward of letting our liberty be determined by the impulses of such whimsical, capricious and designing men.

The Liberty Belle

4 thoughts on “The Amendments Series: No Cruel or Unusual Punishment”

  1. The very power of judges is corrupting. The constitution says what it says. As simple as I am I don’t need 10 law degrees to understand the constitution just a little help from Webster and the Liberty Belle lol. We don’t need judges rewriting the constitution. just sayin

  2. To me classic examples of cruel or unusual punishment are those punishments used by the Crown or Empire to send a message or set and example in the extreme, specifically drawing and quartering and crucifiction.

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