Guest Essayist: Matthew Mehan, Publius Fellow and U.S. History Teacher

Amendment VIII:

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

The adoption of this terse amendment, the shortest of them all, inspired very little debate among our founding fathers. These sixteen words reflect the hard-won and long-defended consensus of free society that just government remains so only if its punishments correspond proportionally to the crimes committed.  The 8th Amendment stands as a testament to the humanism of our Constitution, which makes clear that the government of a free people must be known not for its severity, but instead for its measured humanity.

Each of the three components of the amendment aim to limit one of the government’s discretionary powers: (1) setting bail; (2) imposing fines; and (3) sentencing.  The amendment implicitly recommends that the legislature specify proportional guidelines for these broad powers: how much bail; how high the fines; and how long or difficult the sentence.  The wisdom of having such an amendment stems from abuse of these powers dating back as far as the expansion of monarchical courts under William the Conqueror. William’s descendent, King John, saw these powers greatly limited by the Magna Charta, which sought to reign in the king’s unlawful use of royal courts.  And the language of the 8th Amendment is taken almost word for word from the 1689 English Bill of Rights, which reaffirmed these limitations on the monarch, in this case, the Stuart dynasts.  And in our own day, for the “excessive fines” clause to be applied, the Supreme Court ruled as recently as 1993 that “there must be a payment to a sovereign as punishment for some offense.”  From its historical origins to the present day, the amendment’s primary focus has remained the same: the restriction of the sovereign government in favor of the liberty of a defendant.  The 8th Amendment goes further than enumerate a federal power; it advises the legislature to do what the common law has always done, namely specify, as Blackstone put it, “the nature, though not the quantity or degree, of punishment…for every offence….”  By doing so, the amendment protects the liberty of all, “for,” as Blackstone continues, “if judgments were to be the private opinions of the judge, men would then be slaves to their magistrates; and would live in society, without knowing exactly the conditions and obligations which it lays them under.”

A humane and just government, therefore, must permit reasonable accommodation for pre-trial liberty for those accused of a crime but not yet convicted.  Thus, (1) “excessive bail shall not be required” because, if a citizen is innocent until proven guilty, then the citizen ought to have his or her liberty by means of reasonable bail even when accused.  The Supreme Court has upheld some exceptions for those accused of particularly dangerous crimes, but overall, the amendment and subsequent case law have protected citizens’ pre-trial liberty and right to post bail.

A humane and just government must not (2) impose “excessive fines.”  The 8th Amendment has been used by the courts to limit fines and penalties on the basis established in a 1998 case that those fines were “grossly disproportional to the gravity of a defendant’s offense.”  By limiting the potentially capricious punishment of excessive fines, the amendment has made for a more peaceful and predictable civil society, one freer from unforeseen onerous fines, which confiscate property and lead to possible imprisonment.

And finally, a humane and just government does not (3) inflict “cruel and unusual punishment.”  The Supreme Court first saw this clause as a bar on brutal punishments extant at the time of the founders, horrors such as disembowelment or being dragged to execution.  But the Warren court and due process has expanded this clause’s application to a whole host of considerations as to what constitutes “cruel and unusual punishment,” including deciding whether capital punishment is a disproportional penalty for certain crimes.  While perhaps our founders would not have approved of its modern and wider application, nevertheless, the 8th amendment continues to function as a warning to government lest it become too severe or capricious in its task of punishment.

Matthew Mehan is, among other things, a U.S. history teacher in Washington DC.

April 9, 2012

Essay #36