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BRENNAN, J., concurring
called for a "constitutional check” that would ensure that "when we come to punishments, no latitude ought to be left, nor dependence put the virtue of representatives."
The only further evidence of the Framers' intent appears from the debates in the First Congress on the adoption of the Bill of Rights. As the Court noted in Weems v. United States, 217 U. S. 349, 368 (1910),
3 It is significant that the response to Henry's plea, by George Nicholas, was simply that a Bill of Rights would be ineffective as a means of restraining the legislative power to prescribe punishments: “But the gentleman says that, by this Constitution, they have power to make laws to define crimes and prescribe punishments; and that, consequently, we are not free from torture. ... If we had no security against torture but our [Virginia] declaration of rights, we might be tortured to-morrow; for it has been repeatedly infringed and disregarded.” 3 J. Elliot's Debates, supra, at 451. George Mason misinterpreted Nicholas' response to Henry:
“Mr. GEORGE MASON replied that the worthy gentleman was mistaken in his assertion that the [Virginia] bill of rights did not prohibit torture; for that one clause expressly provided that no man can give evidence against himself; and that the worthy gentleman must know that, in those countries where torture is used, evidence was extorted from the criminal himself. Another clause of the bill of rights provided that no cruel and unusual punishments shall be inflicted; therefore, torture was included in the prohibition.” Id., at 452. Nicholas concluded the colloquy by making his point again:
"Mr. NICHOLAS acknowledged the [Virginia] bill of rights to contain that prohibition, and that the gentleman was right with respect to the practice of extorting confession from the criminal in those countries where torture is used; but still he saw no security arising from the bill of rights as separate from the Constitution, for that it had been frequently violated with impunity.” Ibid. There was thus no denial that the legislative power should be restrained; the dispute was whether a Bill of Rights would provide a realistic restraint. The Framers, obviously, believed it would.
4 We have not been referred to any mention of the Cruel and Unusual Punishments Clause in the debates of the state legislatures on ratification of the Bill of Rights.
BRENNAN, J., concurring
the Cruel and Unusual Punishments Clause "received very little debate.” The extent of the discussion, by two opponents of the Clause in the House of Representatives, was this:
"Mr. SMITH, of South Carolina, objected to the words ‘nor cruel and unusual punishments;' the import of them being too indefinite.
"Mr. LIVERMORE.—The [Eighth Amendment] seems to express a great deal of humanity, on which account I have no objection to it; but as it seems to have no meaning in it, I do not think it necessary.
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? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind.
“The question was put on the [Eighth Amendment], and it was agreed to by a considerable ma
jority.” 1 Annals of Cong. 754 (1789). Livermore thus agreed with Holmes and Henry that the Cruel and Unusual Punishments Clause imposed a limitation upon the legislative power to prescribe pun
5 The elided portion of Livermore's remarks reads: "What is meant by the terms excessive bail? Who are to be the judges? What is understood by excessive fines? It lies with the court to determine.” Since Livermore did not ask similar rhetorical questions about the Cruel and Unusual Punishments Clause, it is unclear whether he included the Clause in his objection that the Eighth Amendment "seems to have no meaning in it."
BRENNAN, J., concurring
ishments. However, in contrast to Holmes and Henry, who were supporting the Clause, Livermore, opposing it, did not refer to punishments that were considered barbarous and torturous. Instead, he objected that the Clause might someday prevent the legislature from inflicting what were then quite common and, in his view, "necessary” punishments—death, whipping, and earcropping. The only inference to be drawn from Livermore's statement is that the "considerable majority” was prepared to run that risk. No member of the House rose to reply that the Clause was intended merely to prohibit torture.
Several conclusions thus emerge from the history of the adoption of the Clause. We know that the Framers' concern was directed specifically at the exercise of legislative power. They included in the Bill of Rights a prohibition upon "cruel and unusual punishments” precisely because the legislature would otherwise have had the unfettered power to prescribe punishments for crimes. Yet we cannot now know exactly what the Framers thought "cruel and unusual punishments" were. Certainly they intended to ban torturous punishments, but the available evidence does not support the further conclusion that only torturous punishments were to be outlawed. As Livermore's comments demonstrate, the Framers were well aware that the reach of the Clause was not limited to the proscription of unspeakable atrocities. Nor did they intend simply to forbid punishments considered “cruel and unusual” at the time. The “import” of the Clause is, indeed, “indefinite," and for good reason. A constitutional provision “is enacted, it is true, from an experience of evils, but its general lan
6 Indeed, the first federal criminal statute, enacted by the First Congress, prescribed 39 lashes for larceny and for receiving stolen goods, and one hour in the pillory for perjury. Act of Apr. 30, 1790, $$ 16–18, 1 Stat. 116.
BRENNAN, J., concurring
guage should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth.” Weems v. United States, 217 U. S., at 373.
It was almost 80 years before this Court had occasion to refer to the Clause. See Pervear v. The Commonwealth, 5 Wall. 475, 479 480 (1867). These early cases, as the Court pointed out in Weems v. United States, supra, at 369, did not undertake to provide "an exhaustive definition" of "cruel and unusual punishments.” Most of them proceeded primarily by "looking backwards for examples by which to fix the meaning of the clause,” id., at 377, concluding simply that a punishment would be "cruel and unusual” if it were similar to punishments considered "cruel and unusual” at the time the Bill of Rights was adopted. In Wilkerson v. Utah, 99 U. S., at 136, for instance, the Court found it "safe to affirm that punishments of torture ...
... and all others in the same line of unnecessary cruelty, are forbidden.” The “punishments of torture," which the Court labeled “atrocities,” were cases where the criminal "was embowelled alive, beheaded, and quartered,” and cases “of public dissection and burning alive.” Id., at 135. Similarly, in In re Kemm
? Many of the state courts, “feeling constrained thereto by the incidences of history,” Weems v. United States, 217 U. S. 349, 376 (1910), were apparently taking the same position. One court "expressed the opinion that the provision did not apply to punishment by 'fine or imprisonment or both, but such as that inflicted at the whipping post, in the pillory, burning at the stake, breaking on the wheel,' etc.” Ibid. Another court "said that ordinarily the terms imply something inhuman and barbarous, torture and the like. . . Other cases ... selected certain tyrannical acts of the English monarchs as illustrating the meaning of the clause and the extent of its prohibition.” Id., at 368.
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ler, 136 U. S. 436, 446 (1890), the Court declared that “if the punishment prescribed for an offence against the laws of the State were manifestly cruel and unusual, as burning at the stake, crucifixion, breaking on the wheel, or the like, it would be the duty of the courts to adjudge such penalties to be within the constitutional prohibition.” The Court then observed, commenting upon the passage just quoted from Wilkerson v. Utah, supra, and applying the “manifestly cruel and unusual” test, that “[p]unishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life.” 136 U. S., at 447.
Had this “historical” interpretation of the Cruel and Unusual Punishments Clause prevailed, the Clause would have been effectively read out of the Bill of Rights. As the Court noted in Weems v. United States, supra, at 371, this interpretation led Story to conclude “that the provision 'would seem to be wholly unnecessary in a free government, since it is scarcely possible that any department of such a government should authorize or justify such atrocious conduct.'” And Cooley in his book, Constitutional Limitations, said the Court, “apparently in a struggle between the effect to be given to ancient examples and the inconsequence of a dread of them in these enlightened times, hesitate[d] to advance definite views.” Id., at 375. The result of a judicial application of this interpretation was not surprising. A state court, for example, upheld the constitutionality of the whipping post: "In comparison with the barbarities of quartering, hanging in chains, castration, etc.,' it was easily reduced to insignificance." Id., at 377.