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Monday, February 25, 2013

The "Mini-Cruel and Unusual Punishments Clauses" of the 1783 State Customs Legislation

I thought I would take a break from pissing people off to write about some additional evidence I had never seen before today on the original understanding of the Cruel and Unusual Punishments Clause.  This evidence further supports the views that (1) the Clause encompasses a proportionality principle and (2) that proportionality principle takes as its benchmark the punishment norms of the individual States.  On April 18, 1783, Congress, under the Articles of Confederation, passed a customs act, imposing duties on certain imports, in order to pay off the country’s war debt.  As was required under the Articles, each of the thirteen States then had to pass ratifying legislation in order for the customs act to go into effect.  Each of them did so.  Interestingly enough, in a majority of the state legislation affirming the new federal customs act, the States inserted what can be called a mini-Bill of Rights.  Each of these States apparently recognized that Congress could punish its citizens for failure to pay the new duties.  These States inserted a proviso that, in essence, required that Congress bring such an action in a court of that state and follow state procedures:  there was a clause requiring warrants to search dwelling houses, trial by jury, and so forth.  Six of these States – Georgia, Massachusetts, New Hampshire, Pennsylvania, Rhode Island, and South Carolina – included a “mini-Cruel and Unusual Punishments Clause.”  Virginia included a “mini-Excessive Fines Clause” but not a “mini-Cruel and Unusual Punishments Clause.”

Pennsylvania and Rhode Island forbade Congress from imposing “unusual punishments” for violations of the new act.  Read in the context of a paragraph that generally requires Congress to follow state criminal procedure (e.g., “the proceedings shall be in the usual form”), and to bring the action in a state court, it is certainly reasonable to read “unusual punishments” as referring to what is usual or unusual in that State.  This is greatly strengthened by the language used by Georgia, Massachusetts, New Hampshire, and South Carolina:  each forbade the infliction of punishment that is “cruel or unusual in this state” (or in Massachusetts, “in this Commonwealth).

This further supports the notion that when state ratifying conventions began proposing amendments to the Constitution a scant four years later, they used “cruel and unusual punishment” (or “cruel or unusual punishment”) as a shorthand way of limiting federal punishments to that which was “cruel and unusual” (or “cruel or unusual”) in each particular State.  At the very least, it supports the notion that this was a widely shared understanding.  Of course, critics will say that the whole point of the Constitution was to make federal laws uniform in a way that they were not under the Articles.  But the point of the Bill of Rights, as I have argued, was to push back on that enforced uniformity and retain for the States a measure of autonomy that was otherwise being taken away by the Constitution, including autonomy on setting the outer bounds of criminal punishment for offenses punishable by the States.

At the same time, this new evidence is pretty strong evidence that “cruel and unusual” and “cruel or unusual” were used in the 1780s to refer to punishments that were disproportionate.  That is to say, it refutes the view held by Justices Scalia and Thomas that the language was understood as covering only methods of punishment, those that inflict a tortuous or lingering death or inflict pain for pain’s sake.  One can scarcely imagine that the six States mentioned were really concerned that those evading the new customs laws would suffer the same treatment that awaited traitors under English common law – partial hanging, disembowelment while alive, drawing and quartering, and beheading – or that Congress would devise an ingenious and painful non-capital punishment for the loathsome smuggler.  To the contrary, my understanding is that criminal prosecutions for smuggling were rare; the government was typically content with civil forfeiture of the goods and the vessel in which they were found.  It thus appears more likely that these States were concerned that, if smugglers were to be punished, they would be punished more harshly than they could be under state law but with something short of a tortuous, painful death.  This is especially so when considering that some of the legislation further limited the penalty to forfeiture of the goods and vessel “in cases of prosecution in rem.”  Indeed, that is probably why Virginia included only a mini-Excessive Fines Clause, and six States apparently did not consider the danger serious enough even to include any such provision.

Posted by Michael J.Z. Mannheimer on February 25, 2013 at 05:33 PM in Constitutional thoughts | Permalink


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I don't see how my reading of the Clause renders it a procedural "right to state-level decisionmaking." Rather, it takes state-level decision-making as a given, a background assumption, and renders a substantive federal right not to be punished more harshly than state-level decision-makers have determined to be the outer bounds of punishment.

In addition, the framers and ratifiers almost certainly would have had more faith than we do in the democratic process at the state level vis-a-vis reducing the severity of punishments. Criminal reform movements were afoot at the time the Eighth Amendment was adopted: Pennsylvania reduced the number of capital crimes in 1786 and again in 1794; New York, New Jersey, and Virginia followed suit in 1796; and Kentucky followed two years later.

Indeed, one of the strongest arguments against the notion that the Constitution absorbed English common law was that it would thwart these reform efforts. As I wrote in my Iowa piece: "[James] Madison, in his 1800 Report [on the Virginia and Kentucky Resolutions], lamented that if `the common law is established by the Constitution . . . the whole code, with all its incongruities, barbarisms, and bloody maxims, would
be inviolably saddled on the good people of the United States.' Also in 1800, the . . . General Assembly of Virginia instructed its U.S. Senators that adhering to the belief `[t]hat the common law of England is in force under the government of the United States . . . opens a new code of sanguinary criminal law, both obsolete and unknown, and either wholly rejected or essentially modified in almost all its parts by State institutions.' Attorney General Richard Rush, in instructing United States Attorney George Blake [in 1814] not to proceed with common-law criminal prosecutions . . . explain[ed] that the federal government could not have incorporated `the whole common law of England, with all or any portion of its dark catalogue of crimes and punishments.'"

Whatever skepticism we have today of the States' desire and motivation to reform their criminal laws -- and that skepticism may help us interpret the Fourteenth Amendment -- it does not change what they thought in 1791.

Posted by: Michael J.Z. Mannheimer | Mar 5, 2013 9:31:40 AM

There was no Fourteenth Amendment when the Eighth Amendment was adopted. The question is whether your reading of the Cruel and Unusual Punishments Clause works on its own, not whether it can be saved by an amendment adopted almost 80 years later.

Also, notice that your reading requires us to interpret a Clause whose wording denotes a substantive right (the right against Cruel and Unusual Punishments) as if it provided a mere procedural right (the right to state-level decisionmaking), and THEN to interpret what appears to be a procedural right (the 14th Amendment right to due process) as if it imported substantive protections back into the Eighth Amendment. This is all quite convoluted, and unnecessarily so. Since the right to state-level decisionmaking does not particularly help criminal offenders (who, as you admit, have no strong lobby at either the state or federal level), why strip them of their substantive federal right and then give it back, in a backhanded way, through the 14th Amendment? Much better to read the Clause as meaning what it says: Criminal offenders have a substantive federal right against Cruel and Unusual Punishments.

Posted by: John Stinneford | Mar 5, 2013 6:40:53 AM

And, by the way, how many of the seven States you mention have a "cruel and unusual punishments" clause (or something like it) in their constitutions? I'm guessing they all do. So on your view, which I accept, such a punishment would violate their own constitutions. And even on the weakest view of the Fourteenth Amendment, this would also be a violation of the federal Constitution, since a State that punishes in violation of its own constitution deprives persons of liberty without due process of law.

I honestly do not understand how one can read my argument that federal constraints on punishment are tied to state norms and understand it to mean: "Let's ignore the Fourteenth Amendment." The one has absolutely nothing to do with the other. There is nothing at all inconsistent with the ideas that (1) the Eighth Amendment strictly limits the power of the federal government to punish by tying that power to state norms and (2) the Fourteenth Amendment limits the States' power to punish in a different way.

Posted by: Michael J.Z. Mannheimer | Mar 5, 2013 1:18:19 AM


It doesn't seem like you made it to the second sentence: "So the big question is whether the Fourteenth Amendment forbids the State from torturing." You are correct that criminal offenders do not have a very strong lobby, which is exactly why, on a representation-reinforcing view of the Fourteenth Amendment, there ought to be some protection for them. As I said in my original response to your question, I am all in favor of having "courts step in only when there is the spectre of process failure." That is exactly the type of process failure that would justify substantive limits on punishment at the state level. But, again, these are tentative thoughts that I have not fully fleshed out.

Posted by: Michael J.Z. Mannheimer | Mar 4, 2013 8:09:33 PM

Michael, I'm glad that Joe got you to answer my question. "[I]f the State could torture, so could the federal government."

The problem with Federalism as a "master principal" for interpreting the Bill of Rights (apart from the fact that the language of provisions such as the Cruel and Unusual Punishments Clause predates federalism and appears to have nothing to do with it) is that federalism is substantively empty. Where applicable, it guarantees decisionmaking at the state rather than federal level, thus making influence over the democratic process often, but not always, more manageable. But it does not provide any substantive protection from even the most barbaric forms of punishment, like torture. Criminal offenders are a despised minority at both the state and federal level, and have very little capacity to affect the political process in either forum. This is why they need (and have always needed) an 8th amendment right that has substantive meaning, not merely a right to state-level decisionmaking.

Regarding your willingness to dismiss the notion that states would ever employ barbaric methods of punishment, I would merely point out that at least seven states currently use chemical castration as a form of punishment for sex offenders. Castration as a mode of criminal punishment was eliminated in the 13th century. States are currently willing and able to get "medieval" on criminal offenders.

Posted by: John Stinneford | Mar 4, 2013 7:52:25 PM

My answer is that if the State could torture, so could the federal government. So the big question is whether the Fourteenth Amendment forbids the State from torturing. I should hope so but if I haven't done the research on the Fourteenth Amendment, then I can't come to any firm conclusion on that question. It seems you would be more comfortable with the answer: "Yes. Now let's work backwards and make the research fit the answer we want."

Posted by: Michael J.Z. Mannheimer | Mar 4, 2013 5:30:32 PM

Professor, with respect, it shouldn't be too hard (including starting off by a resistance of the hypo) to answer "would [it] also be constitutional for the federal government to torture offenders within that state."

The "all bad stuff" bit is tiresome hyperbole.

Posted by: Joe | Mar 4, 2013 5:25:41 PM


As they say, every complex question has an answer that is clear, straightforward, and wrong. So here is the clear, straightforward, and wrong answer to the question: "Of course, the Fourteenth Amendment forbids torture because the Constitution forbids all bad stuff."

Posted by: Michael J.Z. Mannheimer | Mar 4, 2013 5:12:17 PM

The idea that the torture question requires so much hemming and hawing makes me even less enthusiastic about the claim made. The use of "may" etc. Really? Is it really that hard? I would at the very least think torture would violate even some minimal floor that the 14A sets forth even if the states retain broad discretion.

Posted by: Joe | Mar 4, 2013 3:42:53 PM


I would answer that question in two ways. First, that is a mighty big "if." It seems highly doubtful to me that that would ever happen. And that is more than just dodging the hypo; it is a recognition that the Constitution is largely about trusting the democratic process at the state level to come to results that are not utterly repugnant, and having the courts step in only when there is the spectre of process failure. And if it's unthinkable that the federal Constitution might not have anything to say about a State's implementing "torture" as a form of punishment, recall that that was exactly the state of affairs for at least 77 years, from 1791 to 1868, and I don't believe torture was ever legally authorized during that time for the general population (unless you consider flogging a form of torture). As Justice Scalia often responds to such parades of horribles, it just ain't gonna happen.

The second part of the answer, though, is that the Fourteenth Amendment may very well place limits on the ability of States to amend their constitutions in such a way. If we were talking about ordinary legislation, my tentative view would be that the core, irreducible meaning of the Due Process Clause of the Fourteenth Amendment is that the States have to abide by their own laws, including their own state constitutional limits on severe and unusual punishments, which I believe virtually every State has. That is where your view and mine flow together: on your view, which I accept, state cruel and unusual punishments clauses forbid States from imposing punishments they have long abandoned; on my view, the same proscription binds the federal government in each State.

You have complicated matters by positing a constitutional amendment rather than mere legislation. But it may well be that the framers and ratifiers of the Fourteenth Amendment had something more in mind than simply requiring that States follow their own laws. After all, my sense is that by that time, the non-realist view of the common law had taken hold (witness Swift v. Tyson (1842)), so perhaps they did contemplate national standards on punishment vis-a-vis the States.

But these are tentative thoughts. It all depends on whether and to what extent the Fourteenth Amendment incorporates the Eighth. To be honest, that has not been encompassed by my research as of yet, and I'd rather not come to any conclusions without doing that research. But I do reject the conventional view that the Eighth Amendment applies to the States in the exact same way it applies to the feds, becayse the federalism piece of the Eighth Amendment would make that sort of incorporation nonsensical.

Posted by: Michael J.Z. Mannheimer | Mar 3, 2013 1:45:07 PM

Michael, we will probably have to agree to disagree. I do have one final question, though: Under your reading of the Eighth amendment, it would appear that if a state amended its constitution to permit the use of torture as a form of punishment, it would also be constitutional for the federal government to torture offenders within that state. Would your reading of the Eighth amendment permit this result? If not, why not?

Posted by: John Stinneford | Mar 2, 2013 3:34:05 PM


It is true that "the Supremacy Clause makes clear that the federal government's power is supreme within its proper sphere." But that simply begs the question: what is the federal government's "proper sphere?" The Anti-Federalists, in tract after tract, expressed alarm at the power being bestowed upon the federal government through the conjunction of the Necessary and Proper and Supremacy Clauses. The Bill of Rights was designed to cut back on that power, to limit the federal government's "proper sphere." And the slight difference in wording between the First Amendment and the Eighth is not nearly as significant as the fact that both were originally to be inserted into Article I, as limitations on Congress. The decision to add them at the end of the document was stylistic, not substantive.

The conventional reading of history, which is that the new constitutional order of 1787-91 represented a clean break from the past, is implausible. It is implausible to think that Virginia, for example, after 169 years in existence as a distinct entity, with relatively loose ties to the distant Crown, and then eleven years as an independent, sovereign State related in a loose confederation with the other States, would suddenly and cheerfully bid farewell to such fundamental aspects of sovereignty as the right to set the outer limits of criminal punishment within its own borders. As you know, the majority of Virginians and New Yorkers, just to name the two key States, opposed ratification of the Constitution. They ratified only after they were assured that the Bill of Rights would be added. The Bill of Rights is a kind of clawback, if you will, of some of the powers granted by the Constitution. We can only read the latter in the light shed on it by the former. To read the Bill as doing nothing to allay the Anti-Federalists’ greatest fear, that the Constitution would lead to the “annihilation” of the States and their independent legal systems, is to take the perspective of only one party to a compromise. We don’t read a contract by asking only one of the parties what they meant.

I have frankly never heard the claim made that the Articles failed because they bound the federal government to state laws and procedures. The Articles failed because they made the enactment of any national legislation onerous and lacked practical enforcement mechanisms. Had the Articles effectively allowed the Congress to enact new taxes and duties, and permitted Congress to collect them more easily, I don't see how these "cruel or unusual punishment" provisions I've identified would have posed an obstacle to the advancement of federal objectives: they simply would limit the amount of punishment the federal government could dole out. And that is what I contend our Constitution, as amended, does.

Why has the Clause never been interpreted this way? It's a fair point, one that I am currently researching. One needs to ask, though, when this issue would have arisen. When in the course of American history would the federal government have sought to punish crime that is punishable by the States but more severely than the States themselves punish the same crime? My guess is that the federal government has not regularly sought to punish more severely than the States for the same crime, and to vindicate the same interests, until very recently. By that time, the states' rights focus of the Bill of Rights had been all but lost, and we have all been acculturated to think that the Supremacy Clause means that Congress can do whatever it wants as long as it falls within one of the article I, sec. 8 powers

Take for instance the federal death penalty in non-death States. When has the U.S. sought to impose the death penalty for a crime occurring in a State that did not authorize the death penalty for the same crime? As far as I can tell, the first time that happened was 1937; the second time was 1998. The failure of lawyers to raise an argument 146 or 207 years after the Eighth Amendment was ratified – and who knows how good those 1937 lawyers were? – tells us little about how the Amendment was understood in 1791. So the “no one’s ever thought that the federal government can’t do x” argument is not that strong when the federal government has tried to x on only one occasion from 1791 to 1998.

Posted by: Michael J.Z. Mannheimer | Feb 28, 2013 4:43:13 PM

Michael, I wholeheartedly agree that the federal government was permitted to, and often did, use state courts and procedures. I disagree that the Eighth Amendment can fairly be read to REQUIRE it to do so. As I noted in my initial comment, one of the major reasons the Articles of Confederation was abandoned in favor of the Constitution was that the Articles permitted the states to tie the federal government in knots with provisos like those you've identified in the ratifying legislation above. This is why the Supremacy Clause was included in the Constitution - to ensure that the states can't force the federal government to act in accordance with local usages. McCullough v. Maryland established this point fairly firmly. It is counterintuitive, to say the least, to use the sort of legislation that doomed the Articles of Confederation as evidence for interpreting a Constitution that was adopted precisely to take away the states' power to enact such legislation.

Regarding the common law as fundamental law, I agree that Eighteenth century legal thinkers were not always as precise as we would like them to be - but nonetheless, the idea was not an idiosyncratic or transient one. It was the conceptual foundation for the unwritten English Constitution, one of the major ideological justifications for the American Revolution, and one of the primary bases for both state and federal bills of rights.

Finally, as I noted in my initial comment, I agree that federalism concerns play a role in the Bill of Rights, particularly regarding the 10th Amendment. I tend to agree with Amar that the Establishment Clause is at least partly about federalism. But notice that this Clause does not read like an "individual rights" provision at all. It says "Congress shall make no law respecting an establishment of religion." This language can fairly be read as a limitation of federal power (Congress shall not create a national church) and a protection of states' rights (Congress shall not interfere with state establishments of religion).

I am also not saying that there is no connection whatsoever between federalism and individual rights. To the extent federalism requires lawmaking to occur at the local level, individuals will often (but not always) have more power to influence the process and protect their own interests. But the Supremacy Clause makes clear that the federal government's power is supreme within its proper sphere. If the Bill of Rights were read to require the federal government to follow local rules regarding all the individual rights therein, this would go a long way toward negating the Supremacy Clause and bringing back the ineffectual Articles of Confederation regime. It is no surprise that rights like the prohibition of Cruel and Unusual Punishments have never been interpreted this way.

Posted by: John Stinneford | Feb 27, 2013 7:04:26 AM


I wish I could be as emphatic about my position as you are about yours. The truth is, I don't know. I'm just making my best guess after looking at all the evidence and reading the text in context, the same as you.

Your adherence to the dichotomy between individual rights and states' rights is certainly the conventional view but I don't think it is the correct one, for reasons explained best by Akhil Amar. Is the Establishment Clause, for example, an individual rights provision or a federalism provision? We think of it today as the former but there is little doubt in my mind that a good many of the framers saw it as both: by forbidding federal interference with state religious establishments, the Clause protected state religious majorities who might be religious minorities when viewed on a national scale.

"Does the right t[o] a jury trial mean `the right to a trial by jury according to the procedures of the various states'? Of course not." Again, I wish I could be that emphatic. Perhaps it does. What I do know is that early federal legislation did incorporate state procedure in federal court vis-a-vis jury selection, among other things. In addition, one early federal statute permitted federal marshals the same power to make arrests as local sheriffs had under state law. That provision remained in effect until the 1930s. Now that is a far cry from saying that the Fourth (really Fifth, according to Tom Davies) or Sixth Amendment requires that state procedures be followed by the feds, but it does show that during the framing period, and even into the twentieth century, such incorporation of state procedure by federal law was not considered antithetical to notions of federal supremacy.

I understand that you (and others) make a distinction between common law as positive law and common law as fundamental law. I just haven't read anything, by you or anyone else, that convinces me that this distinction is meaningful or workable. To the extent that the distinction was made during the framing period -- and it often was not -- it was always in an extremely nebuous way without any examples or particulars. Just where is that line between those two concepts?

The distinction is also undercut by the language of the 1783 state statutes I've discussed above. If, as you say, "[t]he focus is on the principles and practices that all common law jurisdictions share," then the ban on punishments that are "cruel or unusual in this State" makes little sense. Why add "in this State" if by "cruel or unusual" Georgia, Massachusetts, New Hampshire, and South Carolina were referring to some fundamental, universally accepted limit on punishments?

Posted by: Michael J.Z. Mannheimer | Feb 26, 2013 5:07:36 PM

This is an insteresting piece of evidence, Michael, but the fact that this legislation was enacted under the Articles of Confederation undermines rather than supports your point. The "state-specific" provisos in the ratifying legislation, such as the requirement that enforcement actions be brought in state court under state procedures, are the very sort of thing the new Constitution was meant to eliminate. The same is presumably true of a requirement that the federal government follow the various punishment practices of the various states.

It will not do to claim that the Bill of Rights as a whole was meant to sneak "states rights" back into the Constitution. This argument is implausible on its face. Parts of the Bill of Rights - particularly the 10th Amendment - were designed to protect states rights. But others, including the Cruel and Unusual Punishments Clause, were meant to protect individual (not states) rights. Does the right the a jury trial mean "the right to a trial by jury according to the procedures of the various states"? Of course not. Similarly, the content of the Cruel and Unusual Punishments Clause was not meant to vary in accordance with the state in which a federal court happens to sit. The language of the Clause comes from the English Bill of Rights via the Virginia Declaration of Rights, both of which predate any concern for federalism. There is no evidence that the Eighth Amendment somehow silently incorporates these concerns.

"Cruel and Unusual" does mean "cruel in contrast to the long usage of the common law." But in this context, the reference is clearly to the common law in its aspect as fundamental law, not in its aspect as the positive law of the various states. The focus is on the principles and practices that all common law jurisdictions share, not the particularities where they might diverge. As you know, I deal with this issue extensively in two articles: The Original Meaning of 'Unusual': The Eighth Amendment as a Bar to Cruel Innovation (Northwestern University Law Review) ( http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1015344) and Rethinking Proportionality under the Cruel and Unusual Punishments Clause (Virginia Law Review) (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1660642).

Posted by: John Stinneford | Feb 26, 2013 3:46:43 PM


I appreciate the comments. In my Iowa piece, I do address the idea that the Clause was meant to refer to punishments unauthorized by common law or by statute. While I agree with that proposition, my response is twofold. First, as Scalia himself recognizes, that cannot be all the Clause means because it was meant to bind Congress, and limiting Congress to punishments authorized by statute or common law is toothless because Congress can always alter a federal statute or override common law. So the "common law" part of that formulation had to refer to something other than law that could simply be abrogated by legislation. Second, statutory or common law could refer to the statutory or common law of the federal government or that of the States. The Anti-Federalists and their direct political descendants, the Jeffersonian Republicans, took the position that there was no federal common law and, indeed, there was no single corpus of common law. They argued that the common law differed in every State. This modern way of thinking about common law evolved in the 1790s, at around the same time the Bill of Rights was adopted. For those with this view, it would be nonsensical to limit federal punishments to those permitted by "federal" or "general" common law: there was no such animal. But read the Iowa piece if you're interested. I explain this position in much greater detail there.

I also disagree about the statutory interpretation point. I don't think it's that significant that different legislatures chose different ways of saying the same thing. When we infer that differences in language must imply differences in meaning, we are generally applying that canon to a single document or at least to a single statutory scheme. So that Pennsylvania and Rhode Island said only "unusual" or "cruel or unusual" does not preclude the conclusion that they meant "unusual in this State." And, as you say, the "in this State" is a given, because the trial was to take place in state court. But remember that the same could be true under the Constitution as well: lower federal courts did not have to be created at all, and the Supreme Court was given primarily appellate jurisdiction, meaning that federal criminal prosecutions would have to take place in state court if at all, if Congress had decided not to create the lower federal courts. The proposals for a cruel and unusual punishments clause were made before the Judiciary Act of 1789 created the lower courts.

Moreover, it would have been cumbersome to add language to the Eighth Amendment to get the "in this State" point across. I suppose it could have said: "Punishments that are cruel and unusual in the State in which the offense was committed shall not be inflicted." But that would have broken up the flow of the Amendment and, more importantly, would have been a sharp deviation from the language of the Virginia Bill of Rights (and, in turn, the English Bill of 1689) which was copied nearly verbatim. In the Virginia and English Bills, they didn't have to worry about the dual sovereignty issue. When they transplanted that language into the Eighth Amendment, they did so without taking that dual sovereignty issue head on. My point is not that everyone understood the Clause to be State-specific. It is rather that some people probably assumed it was, others probably assumed it wasn't, and still others -- perhaps most -- never really thought about the issue.

Finally, on rational basis review, I don't disagree that that's how the Eighth Amendment should be applied to the States, if at all. I have not done the research on that issue to come to any conclusion. But I strongly disagree that the Eighth Amendment itself was widely thought to give Congress great deference. The whole point of most of the provisions of the Bill was to sharply limit Congress. I doubt they thought they were limiting Congress by forcing Congress only to have some rational basis for the punishments it prescribed. The sanguinary laws of England you refer to were sharply resisted by colonial juries, who regularly nullified those laws, and were later held up by the Republicans as exhibit A as to why the Constitution could not be thought to absorb the common law of England.

Posted by: Michael J.Z. Mannheimer | Feb 26, 2013 9:31:58 AM

I always enjoy seeing new originalist evidence that the Eighth Amendment requires proportionality. Justice Scalia's finding to the contrary has to be his biggest historical whiff while on the Court.
That said, I'm not sure I agree that the "proportionality principle takes as its benchmark the punishment norms of the individual States."

For one thing, you observe that four states expressly used "in this state" language while one did not and conclude that the lack of that clarifying language in the Eighth Amendment suggests that it was a given—of course they meant "in this state" here too. That seems to run afoul of basic rules of interpretation. And Pennsylvania and Rhode Island's prohibition of only "unusual punishments," with no reference to the state suggests that states knew what they were doing when they employed the language (or didn't).

You don't grapple with the correct portion of Scalia's historical analysis—"unusual" at the founding meant neither precedented under the common law nor authorized by statute. Thus, if you take out the "cruel" component to the rule, you don't really need the "in this state" component because you've already required the trial to be held in state court. "Unusual" in this state is a given here because the state trial court provides the rule of decision.

When you expand the qualification to include both "cruel" and "unusual" punishments, adding "in this state" actually has an operative effect—proportionality (captured by the word "cruel") is then determined by the states' individual standards.

Despite these differences, I am not sure that my ultimate conclusions regarding proportionality differ much from yours. And I do think you are very right to ask what proportionality means. It seems to me that at the founding, legislatures were entrusted with determinations of proportionality and that Courts would give them deference. Thus, it is perfectly consistent with this idea of legislative proportionality for England to punish 200 different crimes with death.

However, in cases where the punishment, "as [was] manifest to everybody, exceeded the just penalty of the offence" a court would step in and overturn it. (To be clear, the case I'm quoting from is an amercement/fines case, but it demonstrates proportionality at work in thirteenth century England.) Similarly, in the case of Hodges against Humkin, the Maior of Liskerret, a prisoner incarcerated for making slanderous comments was freed because the duration and conditions of his imprisonment didn't fit his crime. The Court held that "“the imprisonment ought always to be according to the quality of the offence, and so is the statute of Magna Charta, cap. [20]. . . . [T]he punishment ought to be, and correspondent to the same, the which is not so here in this case.”

While I'm not a fan of the rational basis test in most contexts, I think an originalist analysis of proportionality would look a lot like rational basis. (It would also focus on the crime, and not characteristics of the criminal, in determining proportionality.) "Punishment norms of the individual states" is not a test I'm sure I understand, and without a clause providing that it should be measured by the individual states (as drafters of the time demonstrated they could and would do, as needed), I think it is a hard standard to argue.

Posted by: Ryan Killian | Feb 26, 2013 3:51:15 AM

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