TABLE OF CONTENTS INTRODUCTION I. HISTORY OF THE EIGHTH AMENDMENT AT THE SUPREME COURT A. The Textual Approach B. The Contextual Approach II. HISTORY OF EIGHTEENTH-CENTURY PENAL CHANGE A. Virginia: The Enlightenment and Decreases in Violence B. Massachusetts: Republicanism and the Bloody Code C. Pennsylvania: Civilization and Changing Sensibilities D. The Significance of Late-Eighteenth Century Penal Reform III. REFRAMING CONTEMPORARY EIGHTH AMENDMENT STRUGGLES A. Civilization B. Progress and Evolution C. Proportionality Versus Cruelty CONCLUSION INTRODUCTION
The history of the "cruel and unusual" punishment clause of the Eighth Amendment plays a significant role in the ongoing debate over the Amendment's meaning and application. (1) Those advocating a narrow interpretation of the Amendment and those promoting a more expansive one each invoke different elements of that history. (2) Scholars and Supreme Court justices who support a narrow reading claim to engage in a textual history akin to statutory interpretation. (3) Justices taking this approach argue that it limits the Amendment's protections to forms of bodily punishment and torture considered cruel and unusual in 1791. (4) This approach problematically ignores the context out of which the text emerged, even while ultimately relying on a narrow understanding of the form punishments took in the colonies. (5)
Those who argue for a broader interpretation engage in a more contextual analysis, pointing to the ideas and beliefs held at the time the Amendment was adopted, either concerning the rights of Englishmen generally or the writings of the Enlightenment. (6) However, this approach completely ignores the penal context, seemingly conceding the point that punishments in 1791 were more cruel than those found today. Ultimately, neither approach has convincingly established why such an Amendment would be considered important enough to include in the Bill of Rights, much less what it was intended to capture.
The picture that emerges from the Supreme Court's treatment of the history of the Eighth Amendment is that either the penal methods used in the past are of little importance, or the only thing worth knowing about penal form historically is that it was tortuous and cruel. This Article, in contrast, demonstrates that penal form and the changes it was undergoing at the end of the eighteenth century is highly relevant in interpreting the Eighth Amendment. The attempts at experimentation that occurred during this period make clear that the underlying concern leading to the Eighth Amendment's adoption was not horrible past punishments per se, but rather the need to adopt punishments in keeping with republican (and as will be seen "civilized") government. (8) The precise content of what this meant was subject to debate, and yet some key assumptions regarding the desirability of reform were largely shared across the lines of contention. (9) This history has not hitherto been examined in the context of the meaning of the Eighth Amendment and it sheds important light on how attempts at penal reform in the new republic may have informed understandings of that Amendment.
The changes that had occurred between seventeenth-century England (also known as the Stuart Period of English history) and the American Revolution were understood at the time in terms of cultural progress and increasing civilization. (10) The American republic was seen as a new pinnacle along a continuum of progress, but not as the end point of that progression. (11) Indeed, the various local-level experiments in criminal law reform that occurred between the time of the Revolution and the adoption of the Bill of Rights suggest that the one thing the Founding Generation could be sure of is that they did not know the final form the reform of the criminal laws would take. (12) Thus, in order to understand the meaning of the Eighth Amendment, it is not enough to acknowledge changes that had already occurred at the time of the Revolution or the adoption of the Bill of Rights, rather it is necessary to understand the place of these changes within a larger narrative of what the American republic was understood by the Founding Generation to be achieving at its creation.
By focusing narrowly on the specific words of the Eighth Amendment, the Court's historical inquiry has tended to treat particular penal methods in a rather static way-as though the only distinction that can be drawn is between the so-called "Stuart horrors" of the seventeenth century and eighteenth-century penal practice. (13) In contrast, various scholars have argued that the shift in penal policy during this period was both gradual and wide-ranging, and, in the words of Louis Masur "embodied the triumph of new sensibilities and the reconstitution of cultural values throughout the Western world." (14) The Eighth Amendment was not an end point within this far-ranging development, rather it took form at a particular historical moment within the arc of a deeper cultural change. (15)
This Article departs from previous histories of the Eighth Amendment by drawing on the now considerable histories of criminal law and penal reform in the late eighteenth century. These histories are sufficiently detailed to permit a "thick description" (16) of the debates and concerns regarding the criminal law and punishment that occurred at the time the Eighth Amendment was drafted and adopted. At the time of the Eighth Amendment's drafting, vibrant debates were occurring regarding the form punishment should take within a civilized society and as an aspect of republican governance. (17) The history of penal reform outlined in Part II demonstrates that the Eighth Amendment must be understood to prohibit more than a narrowly defined group of outdated penalties. Rather, it captures an understanding about the fact and process of historical change. (18)
This paper goes beyond a history of the ideas that help us understand the fact and process of penal reform, however. At the time the Eighth Amendment was adopted, there was a shift occurring in individual sensibilities with regard to interpersonal violence and the site of physical infliction of pain. (19) The impact of this "way of feeling," which is both socially and historically determined, can be seen in Justice Scalia's admission that there is a limit to originalism when it comes to the Eighth Amendment. (20) While arguing for an originalist approach to constitutional interpretation, Scalia conceded that although whipping would not have been constitutionally suspect in 1791, he would have difficulty "upholding a statute that imposes the punishment of flogging." (21) This is a statement that relies on a way of feeling that is clearly separate from the Justice's views of how history determines the Eighth Amendment's application. This sensibility has itself been shaped over time. The history examined in Part II thus seeks to explore how the Founding Generation thought about penal change and its place within the creation of the American republic on an intellectual level, as well as shifts and changes that were occurring at the level of emotional responses to physical suffering and argues that both are relevant to understanding the original meaning of the phrase "cruel and unusual." This Article will argue that it was this process of changing sensibilities that was embodied in the Eighth Amendment, and that rather than ossifying the sensibilities of the late seventeenth century, the Amendment captured the belief that sensibilities would and should develop and change over time.
Ultimately, this Article highlights two very different ways of determining the meaning of a phrase. One approach, which is most prevalent in the Supreme Court's decisions, is formalistic, focused narrowly on instances in the historical record where the precise words in question appear, even while ultimately relying on an interpretation of their application at one moment in time. The other seeks to recreate a world of thought, a system of meaning and a way of feeling out of which a particular phrase arose. My intention in this Article is to show that a historical approach that seeks to fully engage with the context in which a text is created yields insights that other historical approaches neglect. An entire history of thought and meaning surrounded the adoption of the Eighth Amendment, but has largely been overlooked in discussions regarding the application of that Amendment. (22) This history sheds important light on the terms of current debates on the Court and in the scholarship over application of the Eighth Amendment.
Moreover, Part III will demonstrate that the history presented in Part II is not only a history of the ideas and influences upon the Founding Generation, it is also the first step in a history of how penal reform and change has been understood throughout the previous two centuries and more. In other words, the history of the intellectual and emotional antecedents of the Founders' thought is a story about our own antecedents and continues to inform how the Eighth Amendment is interpreted not because of the relatively recent focus on originalism, but because narratives of progress, enlightenment, and civilized understanding, along with actual changes in sensibilities, have shaped how justices in the nineteenth, twentieth, and twenty-first centuries have interpreted the Eighth Amendments" Understanding this history, separate and apart from the history of the Eighth Amendment, is relevant for clarifying some of the current debates over the Amendment's application. Though this history is too complex to provide easy answers to current questions, if American jurisprudence is to engage honestly and rigorously with the history of penal changes and reform, then the experiments with and discussions regarding penal reform that occurred in the American colonies following the Revolution, and the continuing impact of the underlying arguments...