Morality in Eighth Amendment jurisprudence.

• Author: Moore, Michael S.
• Position: Symposium: Law and Morality

INTRODUCTION

Morality in Eighth Amendment jurisprudence is but one aspect of a more general topic: the use of moral reasoning by judges in American constitutional interpretation. Seeing the role of moral reasoning through the prism of the Eighth Amendment may help shed light on the more general topic because of three facts: a clear historical record about the Amendment, its frequent invocation in theoretical debates about morality and jurisprudence, and the way it has forced the Supreme Court to address morality directly in its opinions.

We know a great deal about the history of the Eighth Amendment. We know precisely what kind of debate surrounded the provisions that ultimately led to the adoption of the Cruel and Unusual Punishment Clause. (1) We also have a fairly specific understanding of what penalties were thought to be acceptable under the Clause at the time of its adoption. A sufficient historical record is thus available to interpret the Clause for those who choose to do so because they adhere to a narrow intentionalist theory of constitutional interpretation (as did the Justice Department under Ed Meese (2)). We know, for example, that the application of the death penalty to juveniles-the issue considered in Roper v. Simmons (3)--was considered acceptable so long as the defendants were at least seven years old. (4) If original intent and history are important to a judge, a thorough record is available for use.

In part because of the extensive historical record, the Eighth Amendment has opened the door to extensive debate over so-called "interpretive intent," drawing in such theorists as Paul Brest, (5) Ronald Dworkin, (6) Raoul Berger, (7) and H. Jefferson Powell. (8) These scholars often refer to the Cruel and Unusual Punishment Clause because the debates at the time of adoption allow competing sides to make arguments about whether the Framers intended the clauses of the Constitution to be interpreted by their own intentions. As a result, Eighth Amendment jurisprudence is comparatively well theorized.

Finally, throughout Supreme Court opinions interpreting the Clause--from Weems v. United States, (9) to Justice Stewart's opinion in Gregg v. Georgia, (10) to Justice Kennedy's opinion in Roper (11)--one finds Justices who are self-conscious about their use of moral reasoning in their jurisprudence. The Court's Eighth Amendment opinions, like those under the Due Process Clause of the Fourteenth Amendment, are miniature essays in judicial philosophy, so Eighth Amendment interpretation is already theorized as a moral enterprise by the judges who have interpreted it. The Eighth Amendment is therefore a good illustration of the general topic of morality in constitutional interpretation.

A longer article might have discussed what elements besides moral reasoning go into constitutional interpretation. For example, some jurists turn to the history surrounding adoption of the Constitution, mining it for either the intentions of the Framers or the beliefs of their original audience. Others turn to Supreme Court precedent, to the semantics of the constitutional text, or to its pragmatics in the context of its utterance. Some judges find a place for default rules, which Judge Frank Easterbrook calls, in a different context, "tiebreakers." (12) These are just a few of the many things a complete theory of interpretation might include. (13)

For this Essay, I focus only on the role of moral reasoning in constitutional interpretation, analyzing this important factor through the lens of the Cruel and Unusual Punishment Clause of the Eighth Amendment. In particular, the Essay pursues three aspects of this topic: first, whether constitutional interpretation is, can, or should be value-free; second, what the sources of values might be for judges when they look to values in their constitutional interpretation; third, whether judges doing such interpretation should ever rely on their own valuations.

1. CAN CONSTITUTIONAL INTERPRETATION BE FREE OF MORAL REASONING?

   On the first topic--whether constitutional interpretation is, can, or should be value-free--it is important at the outset to reject the kind of skepticism about the use of morality by judges urged at this Symposium by Professor Allen. (14) We could not have a constitutional scheme like the one we have were judges to accept such skepticism about their use of moral reasoning. Values must be real, and judges must use them in their reasoning, if we are to make sense of the constitutional scheme that we have.

   Support for this view can be seen by looking at those who do not hold it. Judge Robert Bork is perhaps the best-known example of a jurist who both denied objectivity to value judgments and denied that judging necessarily involves moral reasoning. At the Seventh Annual National Federalist Society Symposium, held in 1988 at the University of Virginia, I sat on a panel with the late Paul Bator, Ron Rotunda, and Justice Scalia at a kind of Irish "wake" for Judge Bork's lost nomination for a position on the Supreme Court. I was celebrating, not regretting, that loss, for my take on Bork's theory was that it aspired to be value-free. (15) Bork appeared to think that value-free adjudication was desirable for three reasons: (1) imposition of the values of unelected judges would overturn fundamental democratic choices; (2) moral values did not exist, so all value judgments are mere impositions of subjective will and preference; (3) judges would be unable to grasp with any accuracy the nature of moral rights even if such rights did exist, and therefore such judges would simply be imposing their own views. (16) Bork was thus an avowed skeptic of the use of morality in constitutional interpretation. (17)

   Judge Bork's theory of interpretation was a narrow intentionalism that was in vogue at the time. Under this view, clauses of the Constitution are to be seen as aimed at barring specific types of legislation, and only those laws the Framers intended to be forbidden as unconstitutional were to be held unconstitutional. Statutes that were never intended by the Framers to be banned could not later be found unconstitutional because of judicial moralizing. Judge Bork's treatment of the Equal Protection Clause (18) is an illustrative example. Senator Arlen Specter, in his well-known cross-examination toward the end of the confirmation hearings, asked Judge Bork how he could justify a ban on gender discrimination under the Equal Protection Clause based on his stated theory of interpretation. (19) The honest answer should have been simple: you cannot.

   It seems relatively clear from the history of the Fourteenth Amendment that it was intended to validate the Civil Rights Act of Congress of 1866, (20) which in turn aimed at invalidating the Black Codes of the Reconstructionist South. (21) Given that history, under Judge Bork's theory of interpretation, the Framers of the Fourteenth Amendment only intended to protect against those discriminations based on race that were like the discriminations of the Black Codes. As a result, sex discrimination would not be included within the scope of equal protection. This race-only view, of course, would emasculate what many believe equal protection is and should be. Such a view would emasculate the Equal Protection Clause, which says in its plain text that everyone has the right to "equal protection of the laws." (22) Neither the text nor morality limits equality to racial equality.

   The natural tendency of a moral skeptic like Judge Bork is virtually to eliminate judicial review from our constitutional scheme. If morality is a kind of sham--personal preferences masquerading as objective truths--then one should want to restrict its use by judges as much as possible. In the constitutional context, this means restricting judicial review to cases where plain facts, such as the historical fact of what was intended by the Framers, can supplant the independent moral reasoning of judges.

   For reasons more of democratic deference than those stemming from moral skepticism, Justice Scalia's jurisprudence also tends to disavow the legitimacy of judicial review. (23) Justice Scalia, like Judge Bork, only reluctantly accepts the propriety of judicial review, and then only because of deference to history and tradition. Yet the Madisonian compromise (24) struck the correct balance between majority rule and minority rights, and if judicial review is the right mechanism with which to enforce that compromise, it is difficult to maintain that judges should not have recourse to moral reasoning. Such reasoning is essential to policing the balance that is at the heart of our constitutional scheme. (25)

   A glance at Eighth Amendment jurisprudence reveals that judges continually engage in moral reasoning. They do this because they must. Under Eighth Amendment proportionality review, for example, courts repeatedly face questions like the one in Roper: Does anybody deserve to die when that person lacks the mental maturity that marks moral agency? (26) This is surely a moral question. The proportionality questions posed in Atkins v. Virginia (27) with regard to mental retardation, and in Coker v. Georgia (28) with regard to the imposition of the death penalty for the crime of rape, are the same. If judges are prohibited from engaging in moral reasoning, they will have no way of answering these difficult questions rooted in morality.

   Questions of moral desert are unavoidable in proportionality review. If judges are to make reasoned proportionality judgments, they need a coherent theory of punishment. Defining excessive punishment can be done only if a judge is...