Ranking The Bill of Rights, Number 8: The Eighth Amendment

I am not a supporter of cruel and unusual punishment. In fact, I prefer my punishments humane and usual. While I had negative views on the Second Amendment and neutral views (well, assuming you interpret pointlessness as a neutral description) on the Tenth, at this point, my views on the 8th amendment are generally positive. Nonetheless, it has some negative characteristics that cause its eighth place finish.

The Eighth Amendment reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

There is no abominable grammar. No one’s hurt by a little passive voice. The use of “nor” doesn’t seem too excessive. However, the “use” of excessive does seem “excessive.” What does it mean for bail or fines to be excessive? Excess requires comparison yet no comparative referent is offered. Are we talking about excessive compared to past law in the United States… or should we consider other countries too? The same problem holds for “cruel and unusual”: Sure, we can apply moral standards to determine what constitutes cruel punishment but the term “unusual” requires comparison. Should we compare to the law of other countries? This could have interesting implications: If the death penalty loses favor in other countries and becomes particularly unusual then—given that it’s cruel—it seems that the Constitutionality of the death penalty should change too. This makes the Eighth amendments one of the more fascinating amendments due to its flexibility, which you may like or dislike.

Despite its drawbacks, the Eight Amendment is pretty vital to a constitutional democracy. In general, the Eighth Amendment does a good job ensuring that punishments are proportional to their crimes. The Supreme Court has invoked the Eighth when this was not the case: It has prevented the death penalty for rape (rightfully, in my opinion) as well as deeming the divestment of a natural-born citizen’s citizenship as unconstitutional. Without the Eighth Amendment, we would have to depend on statutory law to overturn these cruel and unusual punishments.

So, the Eighth Amendment fittingly places in Eighth.

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