Friday, January 18, 2008

It’s not unusual to be cruel to anyone

The Eighth Amendment of the US Constitution reads:

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

This features prominently in arguments against the constitutionality of capital punishment. But I think one little word floors those arguments: “and”.

There are two ways of reading the amendment: (a) that it prohibits punishments that are cruel and punishments that are unusual; or (b) that it prohibits punishments that are both cruel and unusual at once.

The death sentence is not, in fact, unusual. So the constitutional abolitionists’ case depends on interpretation (a). Interpretation (b) might perhaps be used to rule the original introduction of capital punishment unconstitutional, but that wouldn’t affect the fait accompli that it now has become usual, even if it shouldn’t have.

Two considerations tell against (a).

First, the form of the amendment is ‘X shall not be done, nor Y done, nor Z done’. The writers clearly knew how to express disjunctions. They could easily have written ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel punishments inflicted, nor unusual punishments inflicted’. But they didn’t. They lumped “cruel and unusual” in together as a single category of punishment.

Second, if punishments that are unusual (but not cruel) are forbidden, then there could never be innovation in sentencing. This seems a perverse interpretation. Therefore it seems equally perverse that punishments that are cruel (but not unusual) would be forbidden.

(NB: I am not an American constitutional scholar. I am, however, a blogger with a bit of time suddenly on his hands, and I am therefore amply qualified to talk on such issues.)

2 comments:

Chris said...

This reminds me of one of my old stylistics tutor's hobbyhorses, the F Scott Fitzgeral novel The Beautiful and Damned. Specifically the title. Look, he would say, at the beautiful ambiguity that trips you up because you're so used to the formula The X and the Y in titles. But is it that the Beautiful are also the Damned, or is it conventional syndeton and the Beautiful and Damned are two separate groups of people?

In this case it could very well be that the drafter got carried away with his rhetoric, perhaps influenced by biblical language, and used hendiadys when it would have been clearer to say 'unusually cruel punishments'. I wouldn't like to make James Madison's grammatical abilities a matter of life and death.

Tom Freeman said...

" I wouldn't like to make James Madison's grammatical abilities a matter of life and death."

Yep.

Right to bear arms, anyone?