Excessive bail shall not be required nor excessive fines imposed, nor cruel and unusual punishments
One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments
Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses.
If you take a look at the 8th Amendment in the US Constitution, it literally states, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
Although the prohibition on cruel and unusual punishments
has been the focus of many a scholarly article, (13) neither the Court nor legal scholars have carefully examined how the cruelty and unusualness components of the Clause relate to each other.
2) Those states had, in the wake of independence, created bills of rights that recited the historic prohibition of excessive bail, excessive fines, and cruel and unusual punishments
In 1789, when the Eighth Amendment was ratified by the states as part of the Bill of Rights, cruel and unusual punishments
were, as a class, prohibited.
Scalia-type originalism and living originalism both tend to ignore the word "unusual" in the Cruel and Unusual Punishments
Clause, treating the Clause as a bare prohibition of cruel punishments.
Understanding the Cruel and Unusual Punishments
Clause as a
Excessive bail shall not be required, nor excessive fines imposed nor cruel and unusual punishments
And various aspects of the death penalty have been challenged as a violation of the Eighth Amendment's ban on cruel and unusual punishment
No cruel and unusual punishment
is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we, in future, to be prevented from inflicting these punishments because they are cruel?
And he noted that if the court wants to get in line with an international "consensus" on cruel and unusual punishment
, then the court didn't go far enough: "[I]n addition to barring the execution of under-18 offenders, the United Nations Convention on the Rights of the Child prohibits punishing them with life in prison without the possibility of release.