Monday, October 3, 2011
Michael Mannheimer (Northern Kentucky University - Salmon P. Chase College of Law) has posted Proportionality and Federalism: a Response to Professor Stinneford (Virginia Law Review In Brief, Vol. 97, p. 51, 2011) on SSRN. Here is the abstract:
John Stinneford’s latest article, Rethinking Proportionality Under the Cruel and Unusual Punishments Clause, sheds fresh light on the original public meaning of the Eighth Amendment. Stinneford provides the most cogent rejoinder to date to Justice Scalia’s position that the Cruel and Unusual Punishments Clause contains no proportionality principle. Stinneford demonstrates the unlikelihood of this claim by showing that (1) the best reading of the Clause’s English ancestor was that it encompassed a proportionality requirement and (2) the nearly contemporaneous uses of the term “cruel and unusual punishments” in other areas of the law implicated proportionality requirements.
But to show that the Clause contains some proportionality requirement gets us only part of the way to an understanding of what that proportionality principle demands. Where Stinneford’s work falters is in its articulation of the proportionality requirement of the Cruel and Unusual Punishments Clause as understood in 1791. He claims, in essence, that the Clause was understood as generally constraining Congress from inflicting punishments that were significantly harsher than those imposed at common law for the same offense. While Stinneford’s assertion that the Clause imposed common-law constraints on Congress’ power to punish is well supported, he incorrectly assumes that there was universal agreement in 1791 that the common law was of the pre-realist, brooding-omnipresence-in-the-sky variety. To the contrary, the conceptions of the common law in 1791 were far from homogenous. To be sure, some during the framing period took the pre-realist view that the common law was uniform and obligatory irrespective of sovereignty. Yet, many others asserted, as the Legal Realists later would, that the content of the common law was simply a matter of public policy that differed from state to state, especially as regards the law of crime and punishment. More importantly, it was generally the Anti-federalists, who conditioned ratification of the Constitution on the inclusion of a Bill of Rights, who propounded this more modern, realist notion of the common law of crime. Nothing shows this better than the debate over the existence of a general federal criminal common law that took place during the first twenty years of the Republic.
In short, while Stinneford is probably correct that the Cruel and Unusual Punishments Clause was widely understood in 1791 as imposing common-law constraints on the federal government’s power to punish, it is unlikely that there was any consensus as to what that meant. In particular, the Anti-federalists took a more state-centered approach than Stinneford would allow. Under such an approach, the federal government would generally be barred from imposing any punishment harsher than that authorized for the same offense conduct by the State where the conduct took place.