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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. For example, 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. Originalists object to this approach for many reasons, including the fact that it is inconsistent with democratic principles and the rule of law. Phrased differently, there is nothing in the Constitution that gives unelected judges the authority to overturn laws enacted by democratically elected legislatures, based on the judges’ own subjective ideas of what current “standards of decency” require.

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? (2) 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? (3) Does the Cruel and Unusual Punishments Clause prohibit the death penalty? (4) Are some modern methods of punishment – such as the extended use of solitary confinement, or the use of a three-drug “cocktail” to execute offenders – sufficiently “barbaric” to violate the Eighth Amendment? 

Justices Scalia and Thomas argue that the four questions raised above should be answered as follows: (1) The standards of cruelty that prevailed in 1791, the year the Eighth Amendment was adopted, provide the appropriate benchmark for determining whether a punishment is cruel and unusual. If a punishment was acceptable in 1791, it must be acceptable today. (2) The Clause prohibits only barbaric methods of punishment, not disproportionate punishments. A life sentence for a parking violation, for example, would not violate the Constitution. (3) The Cruel and Unusual Punishments Clause does not prohibit the death penalty, because capital punishment was permissible in 1791, and because the text of the Constitution mentions the death penalty. Specifically, the Fifth Amendment commands that “No person shall be held to answer for a capital . . . crime, unless on a presentment or indictment of a Grand Jury . . . nor be deprived of life . . . without due process of law.” If the death penalty were unconstitutional, they argue, it would not be mentioned in the Constitution. (4) Modern methods of punishment may violate the Cruel and Unusual Punishments Clause only if they are deliberately designed to inflict pain for pain’s sake, and are objectively harsher than punishments permissible in 1791. 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.

My own research into the original meaning of the Cruel and Unusual Punishments Clause shows that Justice Scalia’s and Thomas’s approach has a fatal flaw: It ignores the meaning of the word “unusual.” Their decision to ignore this word makes sense because there seems to be no connection between a punishment’s rarity and its cruelty. 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. But in reality, the word “unusual” in the Eighth Amendment did not originally mean “rare”– it meant “contrary to long usage,” or “new.” 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. 

This understanding of the original meaning of the Cruel and Unusual Punishments Clause leads to very different results than either the non-originalist approach or Justices Scalia’s and Thomas’s approach. 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: 

(1) The appropriate benchmark for determining whether a punishment is cruel and unusual is neither the subjective feelings of the current Supreme Court nor the outdated standards of 1791. Rather, the benchmark is longstanding prior practice. If a given punishment has been continuously used for 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 of 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.

(2) The Clause prohibits disproportionate punishments as well as barbaric methods of punishment. If a punishment is significantly harsher 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. 

(3) The death penalty is currently constitutional because it is a traditional punishment that has never fallen out of usage. 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. 

(4) Some new punishment practices, such as lethal injection or long-term solitary confinement, appear to pose a risk of excessive physical or mental pain. 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.