Death Be Not Proud

MortOur sometimes series bring us today to the Eighth Amendment to the United States Constitution.  The text reads as follows:

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

In another great example of the protections granted to citizens against their government by their government, here we have one that concerns–again–the rights of the accused (or even the guilty).  Accepting the fact that all our law is the democratically sanctioned will of the mob, in this case Amendment Eight also seeks to shelter the individual citizen against the most vengeful and capricious potential of that same mob.

Crimes, especially heinous ones, inflame our emotions.  They draw out the baser angels of our nature.  In an effort to right the world, we think, it is appropriate for us to work through our anger or pain by inflicting the most cruel and potentially unusual punishments we can imagine.  But these punishments may not have any real effect except to make us feel better…and in the process they might rather lower us to a level we had not thought possible.

Even if this amendment has nothing to do with this philosophical approach, it has an important place in defining the kind of country–and law–we as the United States are about.3795105488_13617293e6_z

Because Amendment Eight is terse and non-specific, it makes sense that interpretation of it over time might change.  What, after all, one society thinks is cruel and particularly unusual may change.  I read an interesting article recently that talked about when the Supreme Court almost completely outlawed the death penalty in the 1970s.  It was this very amendment that provided some of the justification to do so.

It is helpful here to have such a broadly written piece of law.  One that requires every generation to decide what “cruel and unusual” really is.  A significant number of nations, for instance, have already abolished capital punishment (even Russia!) and therefore rejected the ways of the past.  Much of the world climate, therefore, has moved to eliminate death as a possible legal outcome.  For them it seems cruel and/or unusual.

Americans still have to decide for themselves what they consider out-of-bounds, but the potential of such changing perspectives requires us as citizens to take the time to work through what we think about the death penalty and other such retributive actions.  The Eighth Amendment, it would seem, demands it.

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