Cruel and Unusual Meant Something in 1791 Before Evolving Standards Arrived

Here is a constitutional riddle. What changes its meaning every few years, is never voted on, never ratified, and is announced by five lawyers counting state legislatures on their fingers? Answer: the Eighth Amendment, as the Supreme Court has read it since 1958.

The words have not changed since 1791. They were not new even then; they were copied, almost to the letter, from an English statute of 1689. The Founders knew what they meant. The modern Court decided the meaning should be supplied instead by "evolving standards of decency," which turns a fixed rule into a moving target and the Court into its only marksman. This post makes the case that the original meaning is a real standard, workable and humane, and it takes seriously a disagreement among conservatives about whether the Clause includes any proportionality review at all.

Terms first

The text. The Eighth Amendment reads:

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

Original meaning. The meaning the words carried to ordinary, informed readers when the amendment was ratified in 1791.

Evolving standards. The approach announced in Trop v. Dulles (1958), under which the Clause "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society," as measured by the Justices, usually by counting state laws, jury verdicts and sometimes foreign practice.

Proportionality. The idea that a punishment can be unconstitutional not because of its kind, such as burning or drawing and quartering, but because it is too severe for the particular offense.

The thesis in four premises

1. The Eighth Amendment copied a 1689 English provision whose meaning was well understood, and the First Congress adopted it knowing that.
2. That meaning was a fixed standard: it forbade punishments that were cruel in method and contrary to long-established practice, and it forbade bail and fines excessive in relation to the case.
3. Trop v. Dulles replaced the fixed standard with a judicial measure of social progress that has no anchor in the text and has produced inconsistent results.
4. Therefore judges should return to the original standard, which leaves the moral questions about punishment, including the death penalty, chiefly to legislatures, while still forbidding the abuses the Founders named.

Now the evidence for each.

Premise one: an English text with an English history

After the Glorious Revolution, Parliament enacted the Bill of Rights of 1689. One of its declarations reads:

That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Put that next to the Eighth Amendment and the borrowing is plain. The Americans changed "ought not to be" into "shall not be" and otherwise kept the words.

The English provision had a context. Under James II, the courts had imposed punishments that Parliament regarded as illegal. The best-known example is Titus Oates, the perjurer whose invented "Popish Plot" had sent innocent men to their deaths. In 1685 he was convicted of perjury and sentenced to heavy fines, to stand in the pillory, to be whipped through London on two separate days, and to be imprisoned for life. Nobody wept for Oates. But after 1689, members of Parliament argued that his sentence had been cruel and illegal, chiefly because it went beyond anything the law and precedent had authorized for perjury. The word "unusual" was doing work: it meant a punishment out of line with long usage, imposed by judges acting without lawful warrant.

The Americans knew this history. George Mason put the 1689 language into the Virginia Declaration of Rights in 1776, and several states followed. When Madison proposed amendments in 1789, he carried the same words forward. More on the bail clause and its history is in Excessive Bail Shall Not Be Required, and What the Founders Meant by It.

Premise two: what the First Congress thought it was adopting

The debate in the House was short, and that is revealing. Samuel Livermore of New Hampshire objected that the clause sounded humane but seemed to have no definite meaning. It is sometimes necessary to hang a man, he observed in substance; villains often deserve whipping and perhaps having their ears cut off; were legislators to be barred from such punishments because some might call them cruel? The House adopted the clause anyway, by a considerable majority.

Livermore's objection tells us two things. First, the members understood the clause as a limit on legislatures as well as judges. Second, nobody answered him by saying the clause would ban hanging or whipping. Those were usual punishments in 1789. The First Congress itself, in the Crimes Act of 1790, made several federal crimes punishable by death. And the Fifth Amendment, ratified at the same moment, speaks of "capital" crimes, of being put "in jeopardy of life," and of being deprived "of life" with due process. A Constitution that regulates the procedure for capital punishment in one amendment did not abolish it in the next.

What the clause did forbid, on the original understanding, was two kinds of punishment:

• Punishments cruel in method, the kind that deliberately add terror, pain or disgrace beyond what death or imprisonment requires, such as burning at the stake, disembowelling, or the rack. In Bucklew v. Precythe (2019), Justice Neil Gorsuch's majority opinion grounded the method-of-execution test in exactly this historical understanding.
• Punishments unusual in the old sense, meaning not sanctioned by long usage or by law, imposed as novelties. A legislature could not invent new tortures, and a judge could not pile on penalties the law did not authorize.

That is a real standard. It can be applied by looking at history and at the method of a punishment, without a poll of national opinion.

Premise three: Trop and the moving target

In Trop v. Dulles (1958), Albert Trop, an Army private, had deserted for about a day in French Morocco in 1944. He was court-martialled and later, under the Nationality Act of 1940, deemed to have lost his American citizenship. The Supreme Court held 5 to 4 that taking his citizenship was unconstitutional. Chief Justice Earl Warren's plurality opinion declared that the words of the Amendment are not precise, that their scope is not static, and that the Clause draws its meaning from evolving standards of decency.

One can sympathize with Trop's result. Making a man stateless for a day's desertion is harsh. But look at what the method does. It hands the Court a theory under which the meaning of the Constitution changes without amendment, and the Court is the institution that decides when society has matured. Here is how that has worked in practice.

• In Furman v. Georgia (1972), the Court effectively halted capital punishment nationwide. In Gregg v. Georgia (1976), four years later, it allowed it again under revised statutes. Society's standards of decency apparently matured and then un-matured in four years.
• In Roper v. Simmons (2005), the Court barred the death penalty for offenders who were under eighteen when they committed their crimes, in part by counting the states that had abandoned it and by citing the practice of foreign nations.
• In Kennedy v. Louisiana (2008), the Court barred the death penalty for the rape of a child, again counting states to find a "national consensus." After the decision, it came out that Congress had in fact authorized the death penalty for that crime under military law two years earlier, and that nobody in the case had told the Court. The national consensus, it turned out, was missing a branch of the national government.

When a constitutional standard depends on a headcount that the counters can get wrong, it is not a standard. It is an estimate. The full sweep of those capital cases is in The Death Penalty in the Supreme Court, a Timeline From Furman to Bucklew.

There is also a deeper problem. If the Clause tracks what society currently considers decent, then it can protect only those whom the majority already wishes to protect. That is backwards. A constitutional right exists precisely to bind majorities when they would rather not be bound. A fixed meaning protects a defendant even when the public mood turns harsh; an evolving one rises and falls with that mood. Supporters of the evolving approach assume society only ever grows gentler. History does not support the assumption.

The fines clause and Timbs v. Indiana (2019)

Not every Eighth Amendment development has been bad. The Excessive Fines Clause had been neglected for most of American history. In United States v. Bajakajian (1998), the Court for the first time struck down a fine as excessive: the government sought to forfeit all of the more than $357,000 a traveler had failed to report when leaving the country, and the Court held that forfeiture grossly disproportional to the reporting offense.

Then came Timbs v. Indiana (2019). Tyson Timbs pleaded guilty in Indiana to dealing in a controlled substance. The state sought to forfeit his Land Rover, which he had bought for about $42,000, while the maximum monetary fine for his offense was $10,000. A unanimous Supreme Court, in an opinion by Justice Ruth Bader Ginsburg, held that the Excessive Fines Clause applies to the states through the Fourteenth Amendment. Ginsburg traced the protection back through the 1689 Bill of Rights to Magna Carta, which required that fines be proportioned to the offense and not deprive a man of his livelihood. Justice Clarence Thomas concurred, arguing that the right should be applied to the states through the Privileges or Immunities Clause rather than through due process, and Justice Gorsuch noted that he found that view plausible.

Timbs is originalism working as it should. The text says "excessive," which is a comparative word; the history confirms that fines had to fit the offense; and the decision protects ordinary people from a government that has learned to fund itself by seizing property. For the broader forfeiture problem, see Civil Asset Forfeiture Lets Government Keep Property Without a Conviction.

Where conservatives disagree: proportionality for prison terms

Now the honest part. Conservatives agree that evolving standards were a mistake. They do not agree on whether the punishments clause includes any proportionality review for prison sentences.

The case against proportionality. In Harmelin v. Michigan (1991), Ronald Harmelin received a mandatory sentence of life without parole for possessing 672 grams of cocaine. The Court upheld the sentence 5 to 4. Justice Antonin Scalia, joined in that part only by Chief Justice William Rehnquist, argued that the Clause contains no proportionality guarantee at all. His evidence was textual and historical. The fines and bail clauses use the word "excessive," which invites comparison to the offense; the punishments clause instead says "cruel and unusual," which describes the kind of punishment. The drafters knew how to write a proportionality rule, and they wrote one for fines and not for punishments. On this view, legislatures decide how long prison terms should be, and judges ask only whether the mode of punishment is cruel and unusual. Justice Thomas has taken the same position.

The case for a narrow proportionality rule. Justice Anthony Kennedy, joined by Justices Sandra Day O'Connor and David Souter, concurred in upholding Harmelin's sentence but recognized a narrow principle forbidding sentences "grossly disproportionate" to the crime. The Court had applied something like that principle in Solem v. Helm (1983), striking down a sentence of life without parole for a man whose latest crime was passing a bad check, and it later upheld California's three-strikes law in Ewing v. California (2003) under the same narrow test. Some originalist scholars add a historical argument: if "unusual" meant contrary to long usage, then a sentence wildly out of line with what the law has traditionally imposed for a given crime is itself "unusual," and a court may say so.

Our verdict. The Scalia reading is the stronger reading of the text, because the contrast between "excessive" and "cruel and unusual" is too deliberate to ignore. But the historical reading of "unusual" is serious, and it points to a modest rule that is far from evolving standards: a punishment that breaks sharply with long legal tradition for a given offense can be examined. The decisive point is that both conservative positions measure the Clause against history and text, not against the Justices' sense of where society is heading. That is the line that matters. The disagreement is a family argument; the evolving-standards approach is a different religion.

The strongest objection, answered

The best argument for evolving standards goes like this. The Founders wrote in general language on purpose. "Cruel" is a moral word, and moral understanding improves. We no longer accept flogging or branding, and we should not have to amend the Constitution each time we notice that a punishment is barbaric. Freezing the Clause in 1791 would permit any punishment the Founders tolerated, which nobody really wants.

Three answers.

1. Legislatures abolished flogging, not courts. The practices that offend modern sensibilities were ended overwhelmingly by elected bodies. The moral progress the argument celebrates happened through democratic means, which is exactly where the original meaning leaves those questions.
2. A fixed principle can apply to new facts. The original standard forbids methods that superadd terror, pain or disgrace. Applying that principle to a new method of execution requires judgment, but it is judgment under a fixed rule, not the creation of a new one. Originalism is not antiquarianism. For more on this distinction, read Why Originalism Is the Only Method That Binds the Judge as Well as the Citizen.
3. The alternative has no brakes. If the Court can declare that society has evolved past a punishment, it can declare that society has evolved past anything. There is no principled stopping point, and there is no way for the people to correct the Court except by constitutional amendment, which the evolving approach was invented to avoid. The usual objections to originalism, including this one, are answered at length in Five Serious Objections to Originalism and the Answers That Hold Up.

The case in brief

1. The Eighth Amendment copied the English Bill of Rights of 1689 almost word for word, and the First Congress adopted it knowing that the same Congress was writing capital crimes into federal law.
2. On its original meaning, the Clause forbade punishments cruel in method and unusual in the sense of contrary to long legal usage, and it forbade fines and bail excessive for the case, as Timbs v. Indiana (2019) correctly enforced.
3. Trop v. Dulles (1958) replaced that fixed meaning with evolving standards of decency, producing reversals such as Furman and Gregg and headcounts such as Kennedy v. Louisiana that missed an act of Congress.
4. Conservatives disagree in good faith over narrow proportionality review for prison terms after Harmelin v. Michigan (1991), but both sides measure the Clause by text and history, and that is the standard judges should restore.

What you can do: look up your state's sentencing and forfeiture laws on your legislature's website, and ask your state representative whether forfeiture there requires a criminal conviction first.