Friday, June 10, 2011
Since the early twentieth century, the Supreme Court has interpreted the Eighth Amendment prohibition against cruel and unusual punishment as a progressive mandate that draws its meaning from “the evolving standards of decency that mark the progress of a maturing society.” In applying this standard, the Court looks to such objective considerations as legislative enactments, patterns of jury decision making, and international opinion as measures of contemporary values. At the same time, the Court intermittently invokes its “own judgment” as an independent gauge of constitutionality. This article assesses the viability of the “evolving standards” doctrine, concluding that, as presently conceived, it has produced an incoherent Eighth Amendment jurisprudence. In particular, by relying on majoritarian factors as a test of constitutionality, the Court has misconceived the nature and significance of a constitutional right. For in its zeal to avoid the charge that the subjective policy preferences of individual justices drive its decision making, the Court has embraced a form of moral skepticism that is inconsistent with the history and character of the Constitution. Despite the Court’s missteps, the evolving standards formulation is worth preserving because it highlights a number of important liberal-democratic values. According to this alternative conception, the touchstone of Eighth Amendment analysis is neither political popularity nor personal morality but the political morality of our liberal democracy – the best account of how our political values should shape and constrain the institution of punishment.