J. L. BELL is a Massachusetts writer who specializes in (among other things) the start of the American Revolution in and around Boston. He is particularly interested in the experiences of children in 1765-75. He has published scholarly papers and popular articles for both children and adults. He was consultant for an episode of History Detectives, and contributed to a display at Minute Man National Historic Park.

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Wednesday, May 19, 2010

“The Moral Commitment Embodied in the Eighth Amendment”

Standards of eighteenth-century British criminal justice came up in the Supreme Court this week. The issue was whether a life sentence for a seventeen-year-old convicted of two armed robberies, or for any juvenile offender who hadn’t committed murder, was “cruel and unusual punishment” under the Eighth Amendment to the U.S. Constitution. From Adam Liptak’s coverage in the New York Times:

As usual in cases involving the Eighth Amendment, the justices debated whether the Constitution should consider, in a one common formulation, “the evolving standards of decency that mark the progress of a maturing society.”

Justice [Clarence] Thomas said the court should look to the practices at the time the Bill of Rights was adopted. Given that capital punishment could be imposed on people as young as 7 in the 18th century, he said, Mr. [Terrance] Graham’s punishment would almost certainly have been deemed acceptable back then.

Justice John Paul Stevens, in a concurrence joined by Justices [Ruth Bader] Ginsburg and [Sonia] Sotomayor, said Justice Thomas’s “static approach to the law” did not allow for societal progress and would entail unacceptable human consequences.

“Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old,” Justice Stevens wrote. “Knowledge accumulates,” he wrote. “We learn, sometimes, from our mistakes.”
I’m not surprised to see Stevens and his colleagues reminding us how British law once allowed seven-year-olds to be hanged; that fact is a reminder about just how cruel past societies could be.

What seems remarkable is that Thomas actually brought up hanging seven-year-olds first. He appears to accept execution of children of that age as just if allowed by a legislature. Thomas’s allusion comes in footnote three of his dissent, which Justices Antonin Scalia and Samuel Alito joined. That note points to an opinion that Scalia wrote for the court in 1989—a decision overturned in 2005.

Thomas’s dissent also misquotes the Scalia opinion, which no one seems to have noticed. Thomas wrote that British common law allowed “capital punishment to be imposed on a person as young as age 7.” Scalia actually, and correctly, had written that the punishment was allowed for “anyone over the age of 7”—i.e., eight or above.

The “evolving standards of decency” formulation is over half a century old now, coming from Trop v. Dulles in 1958, which in turn cited Weems v. United States in 1910. In sum, the belief that courts shouldn’t define “cruel and unusual punishment” by eighteenth-century standards has been U.S. law for a century.

Stevens’s two-paragraph response to Thomas’s dissent concludes:
Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commitment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete. . . . Standards of decency have evolved since 1980. They will never stop doing so.
TOMORROW: Did the British justice system of the 1700s actually execute young children?


Jan said...

Is the enslavement of Africans among the practices that Justice Thomas would look to for guidance as to what is societally acceptable?

J. L. Bell said...

I believe Thomas, and all serious historians, would agree that slavery was both societally accepted and constitutional in 1789—hence the need for the Thirteenth Amendment. Now that the Constitution has changed, Thomas would presumably agree that slavery is unconstitutional.

Would Thomas find the Civil Rights Act of 1964, the affirmative-action programs he benefited from, or other ways that the federal government acts to provide equal opportunity in an unequal society to be constitutional? The Fourteenth Amendment stresses equal rights, but doesn’t define that—an opening the late-19th-century court used to protect corporations and segregate racial minorities.

If Thomas were truly guided by what the society of 1789 or 1865 considered to be an acceptable level of equality for free African-Americans, then I don’t think he could remain on the Supreme Court. The court admitted one black lawyer to its bar in 1865, but none argued before the court until 1910, and none sat on the high bench until 1967.

Unknown said...

It's a fundamental error to think that Thomas (or Scalia) look to the past "for guidance as to what is societally acceptable". As originalists, they see their role as determining what the law is, not what it should be. An originalist is not endorsing a policy just because he finds it to be constitutional.

To put it another way, a liberal justice decides this case by determining whether life sentences for non-murdering 17 year-olds are a good idea. An originalist decides it by determining if such sentences are constitutional. Not every liberal would agree with this characterization, of course, but that's how originalists view the situation.

We don't know if Thomas and Scalia think these juvenile life sentences are a good idea, since, according to originalism, personal policy preferences are supposed to be irrelevant to questions of constitutionality. Instead, they argue that the sentences are not unconstitutional, and therefore it's up to the people and the states to decide whether to issue such sentences.

J. L. Bell said...

In this case, Thomas was quite definitely looking at what was "societally acceptable" in eighteenth-century America. What the people of that time (or, more accurately, the white men of property of that time) accepted is in his view by definition not "cruel and unusual," and therefore "constitutional."

I think it's naive and one-sided to think that only "a liberal justice" allows "personal policy preferences" to sway his or her decisions. Rather, originalism is often a fig leaf for reactionary personal preferences.

Unknown said...

It's probably tempting for some liberals to think that Thomas is using a constitutional "fig leaf" to promote his real agenda, which includes permitting the execution of 7 or 8 year-olds. I hope I never get that cynical.

I agree, originalism in practice is arguably as subjective as any other process of deciding a case. But for history buffs, deciding the "correct" originalist interpretation for any case is an interesting exercise, even if the outcome is not something we'd always support. Sometimes, the conclusion is undeniably liberal, and so there are a few liberal originalists out there, with probably more to come in the future.

J. L. Bell said...

Thank you, History Buff, for coming around to acknowledge that "originalism in practice is arguably as subjective as any other process." Though apparently you don't see that as evidence of cynicism.

I also appreciate the suggestion that "there are a few liberal originalists out there." That seems quite different from the earlier declaration of how "a liberal justice decides."