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Posted March 8, 2005
The plain meaning of the Constitution is not always plain. Certain clauses can't help but confuse, requiring interpreters to explore and understand context and nuance. Unfortunately, those who favor increasing government power consider only those nuances that increase government power; they have rarely understood or stood by the 9th and 10th amendments, for instance. Supporters of limited government, on the other hand, sometimes err in thinking the Constitution is a more hard-edged document than it actually is. On this latter (and finally getting to my point) I note that both George Will and Paul Jacob oppose the recent Supreme Court ruling that banned executions of teenage murderers.
Jacob was especially clear why he opposed the ruling:
...just what was it that caused the majority of the justices to overturn the death penalty for those under 18?
The justices mentioned that several states had ended executions for young people. But that doesn't change the wording or meaning of the Constitution.
Oh, the High Court also cited the fact that no European countries have the death penalty for juveniles. In fact, the Washington Post report mentioned that "perhaps the most significant effect of yesterday's decision is to reaffirm the role of international law in constitutional interpretation."
Our Constitution is the best in the world. It's clearly written and shorter than most of the bills passed by Congress. Maybe our judges should read it, and stop relying on who's doing what in Europe -- or who knows where.
George Will also promotes a standard of clarity:
While discussing America'sevolving standards of decency,Kennedy announces:It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty.Why is that proper when construing the U.S. Constitution? He is remarkably unclear about that. He says two international conventions forbid executions of persons who committed their crimes as juveniles. That, he thinks, somehow illuminates the meaning of the Eighth Amendment.
But I think Kennedy is likely right, and Jacob and Will, wrong. Why? Go back to the words of Article Eight of the Amendments to the Constitution:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.
Now, it is almost certain that courts in America regularly disobey the first clause. To anyone not a millionaire, a million dollar bail is excessive. Unfortunately, this kind of excessive bail is quite common; in some kinds of cases, it appears to be the rule. Courts regularly use bail to incarcerate suspects while a prolonged wait for a trial takes its toll on the liberty of the suspects. This would put the founders to scandal, but doesn't trouble modern-day liberals or conservatives much at all.
Excessive fines? Also a problem in these United States. Setting any fine far out of whack of a person's income is excessive.
Note that what is provided here is a relative standard, not some brittle rule. Excessive bail is either bail that almost no one could pay, or else that the suspect could not pay. Either interpretation would, if followed earnestly, change current practice. And that despite the fact that the standard is relative.
The same point goes for excessive fines.
What's excessive? Fines that are out of proportion to what people are able to pay, and still remain living. (It may be that some crimes are so horrible that the fines should break the finances of the person; make the person sell his home, etc. But if the person doesn't have a home? Go into debt, forever, to pay off the fine? I wonder about this.)
It's obvious that the Eighth Amendment has been very selectively used in America. Only the last clause has caused much a ruckus: No cruel and unusual punishment.
Cruelty is of course what many people — those especially on the right — want in punishment, demand of punishment. Nothing else will feed their fury. What does the Constitution say to such people? Screw you, folks; you may demand hurt upon hurt, but you are not allowed to get it. What you may want is against the Constitution.
But what does unusual
mean?
Well, the Court now interprets this to mean out of the mainstream of civilized culture
or somesuch. (I'm intuiting the meaning; the quotation is not from anyone in particular.) European state standards and the changing laws of the several states of America do provide the context that the word unusual
seems to require. The very word, unusual,
is comparative.
So, the Constitution itself demands that we seek a context of social acceptability. And the Court provides it. This makes some sense to me.
But I think another meaning should be attached unusual. I believe it means creative.
That is, judges (and juries) are not allowed to just make up
new punishments.
On The Practice a few years ago, a peeping tom was made, by the judge, to drop his pants, to show his teeny weeny weeny to the judge and the court.
That is the kind of thing the Constitution prohibits. Hear that David Kelley?
This once-widespread practice (now mostly fallen into desuetude) of creating ostensibly fitting
punishments on a case-by-case basis, is what this article of the Constitution was (I hazard) designed to prohibit. By prohibiting such punishment, the Constitution restrains an ugly element of human nature, Shylockian ingenuity in vengeance, making judges and juries conform to established law, not their own creativity and whimsy.
And on that ground, I suggest, today's Court may err. The majority Court may be making too much of the word unusual.
These justices may be applying it a tad too broadly out of its original context.
This being said, it's difficult to protest. Compared to many another judicial interpretation, this hermeneutic stretch is not much of one. After all, it keeps within the spirit of the Constitution, unlike so many other innovations the Court has concocted over the years. It is awfully hard for me to protest against prohibiting governments from engaging in punishments far out of whack with world standards. Citizens in their governmental mode
quickly get out of hand. Punishment becomes an expression of the darker side of the human soul. Limiting, further, this element of American penology and jurisprudence seems like a good idea to me. It is yet another limit on government power.
And perhaps if conservatives and other vindictive people were prohibited from pursuing extremities of punishment, they'd return to the main task, reviving the practice of celerity of punishment — which is far more effective a deterrent to crime, anyway.
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