The Sanctity of the Constitution: The Eighth Amendment and Judicial Activism

Yesterday, someone on Facebook asked me (this is a friend who is commonly my adversary on political matters), "Is flogging prohibited by the 8th amendment?"

My response was just from what I could conjure on the spot (it being Facebook, after all, not a research paper), but some people liked what I said, so I thought I would reproduce it, with some slight editing:

During the Revolutionary War, when it was proposed that a conviction in a court martial be sentenced with 500 lashes, Roger Sherman successfully argued that based on the Bible, the punishment must be limited to 40 lashes. (John Eidsmoe, Christianity and the Constitution: The Faith of Our Founding Fathers (Grand Rapids, MI: Baker House Company, 1987), p. 324, citing Christopher Collier, Roger Sherman's Connecticut: Yankee Politics and the American Revolution (Middletown, CT: Wesleyan University Press, 1971), p. 185.)

Now, I haven't studied the Eighth Amendment, and I haven't studied the literature regarding judicial punishments in colonial America, but from the above, it seems that apparently, no, flogging is not "cruel and unusual."

Now, the "cruel and unusual" clause is difficult, because it is so vague. Whereas the rest of the Constitution is pretty clear-cut and explicit, and subject to very little doubt (except for judges, who like to artificially increase the doubt via casuistry in order to increase their own power), this clause is difficult because it is patently subjective and unclear.

In our present case, it is difficult to justify interpreting the clause according to the intent of the Framers, because there is so little actual text in the amendment itself to go on. Ordinarily, we want the intent of the Framers to merely help us interpret the plain meaning of the text, but it is the text itself that is binding, and the intent merely helps us make sure that our interpretation of the text itself is a historically realistic one. (Joseph Story, quoted in Eidsmoe (op. cit.) p.398; in turn citing Edwin Meese III, address to American Bar Association, 1985, adapted in "Toward a Jurisprudence of Original Intention," Benchmark, Vol. II, No. 1, January-February 1986, pp. 1-10, at 6.) But here, we are hanging a mountain of 39 lashes on a single string, with very little text to go on. (I am referring to the Talmud's admission that the detailed laws of Shabbat are a mountain of 39 prohibitions hanging on a string of a few Biblical prohibitions to "work" on Shabbat. As an aside, regarding how to interpret a text in such a way that one is simultaneously loyal to the plain import of the words as well as to the history and intent of the author, without sacrificing either, I often commend Professor Haim Kraisel's article, Interpreting Judah Halevi's Kuzari. Kreisel notes that if you read too historically, you kill the text, but if you interpret the text by itself, you might come up with readings that are dubious according to history and intent. Furthermore, he says, it is probably impossible to ever find one single solitary reading of history and intent that can be trusted above all others. So what to do? See there. The four page article deals with many issues of particularly Jewish interest, which readers here might not care for, or even comprehend, but it is page 2, "Academic Reading -- Motivation and Meaning," that is relevant for us here, and which I hope non-Jewish readers can understand too.)

Nevertheless, I would argue that we are bound here (regarding the Eighth Amendment), as much as we are anywhere else, to the intent of the Framers. Like any contract, you read it according to the intent of its authors and signers. Presumably, we can learn what they meant by "cruel and unusual" if we read their literature.

Furthermore, if we do anything else, we run into a grave danger. If we don't interpret according to the Framers, then according to whom will we interpret? Court judges? But who elected them to be our moral consciences? Maybe they consider the death penalty to be "cruel and unusual," but I don't. Why should their will prevail over anyone else's? They were appointed to interpret the law, not to make moral decisions. In this case, interpreting according to the Framers' intent is difficult to justify, but it is even more difficult to justify interpreting according to the intent of contemporary judges. At least the intent of the Framers has some connection to the text of the amendment, however tenuous, but the intent of the judges today has no connection with that text whatsoever!

Eidsmoe (op. cit., p. 391) quotes Chief Justice Warren in Trop v. Dulles 356 U.S. 86, as saying, regarding the Eighth Amendment, "The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society," and, he says, Justice Brennan approvingly quotes Warren in Furman v. Georgia, 408 U.S. 238 (1972). It is my contention that allowing judges to read their own morality into the Constitution, is a road to tyranny. According to George Washington (Eidsmoe (op. cit.), pp. 392f, citing American Historical Documents (NY: Barnes and Noble, Inc., 1960), p. 144),

If, in the opinion of the people, the distribution or modification of the Constitutional powers be at any particular wrong, let it be corrected by an amendment in the way the Constitution designates. But let there be no change by usurpation; though this may in one instance be the instrument of good, it is the customary weapon by which free governments are destroyed.

By contrast, Eidsmoe (op. cit., p. 395) quotes Professor Alexander Bickel (The Least Dangerous Branch, p. 236) as saying,

The function of Justices ... is to immerse themselves in the tradition of our society and of kindred societies that have gone before, in history and in the sediment of history which is law, and ... in the thought and the vision of the philosophers and the poets. The Justices will then be fit to extract "fundamental propositions" from their deepest selves, but in fact from the evolving morality of our tradition.

In other words, the judge, according to Bickel, is the moral judge of society, allowed to establish his own personal moral opinions as authoritative. Whereas Justice Felix Frankfurter said, "What governs is the Constitution, and not what we have written about it," Justice Charles Evan Hughes said, "We are under a Constitution, but the Constitution is what the judges say it is." (Eidsmoe, op. cit., p. 397, citing, respectively, Judge Brevard Hand, Wallace v. Jaffree, reversed, affirmed in part, 105 S. Ct. 2479 (1985), and Craig R. Ducat and Harold W. Chase, Constitutional Interpretation (St. Paul: West Publishing Co., 1974, 1983), p. 3.) The opinion that the Constitution is whatever the judges say it is, and that judges must read the Constitution according to contemporary morality, means that the Constitution is no longer a binding contract establishing "a government of laws, not men," but that rather, it is precisely and nothing but a government of men, of nine unelected men in black robes who are allowed to change the Constitution to say whatever they want it to say.

The fact is, we can always pass an amendment. The rule of law is the single most important part of the Constitution. It is, after all, supposed to be "a government of laws, not men." So in a case of doubt, I consider it reasonable enough to err on the side of caution and to be conservative, because worst case scenario, you just have to pass an amendment. The potential benefit (maintenance of the rule of law) is enormous, while the potential cost (passing a new amendment) is very low. So just pass a new amendment putting forth a new interpretation of what "cruel and unusual" is. Heck, we could pass an amendment declaring, "Henceforth, the Eighth Amendment shall be construed to refer to whatever is considered 'cruel and unusual' in the time, place, and culture of its interpretation by a given judge in a given case." See, that wasn't hard, was it?

Let me make a comparison: Rabbi Mordechai Machlis in Jerusalem, famous for his open house on Shabbat (the Sabbath), when he lets literally anyone into his home, uninvited, for a meal, always tells his guests (whom he allows to stand up and speak publicly for all gathered there) to please say "nothing that will be offensive to our religious Jewish celebration." Now, what does that mean? A Reform rabbi might see nothing offensive in praising pork chops; for him, religious Judaism includes the consumption of pork! And a Reformed Christian holding by the Augustinian unity of faith, believing that the Biblical Jews were Christians, there is nothing offensive to authentic Judaism ( = Christianity) in the praise of Jesus as the son of God. So like "cruel and unusual," it is difficult to define "religious Jewish." So what do we do? Well, we know that Rabbi Machlis is an Orthodox rabbi who learned under Rabbi Avigdor Miller (a famous Orthodox rabbi) and teaches in an Orthodox yeshiva (seminary). So presumably, by "religious Jewish," he means Orthodox Jewish. So even though our hypothetical Reform rabbi does not consider a paen to pork chops to be "offensive to our religious Jewish celebration," and neither does our Reformed Christian consider discussion of Christian beliefs to be offensive to religious Judaism, we nevertheless go by Rabbi Machlis's own intent, notwithstanding the loopholes in his own utterance.

Therefore, notwithstanding the difficulties inherent in an originalist interpretation of the Eighth Amendment, let us nevertheless interpret it in an originalist fashion.