The Supreme Court Plays Fast and Loose with the Eighth Amendment

By | 2017-06-02T18:30:05+00:00 March 30, 2017|
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Tuesday’s Supreme Court ruling represents another victory for Progressive liberalism’s “post-constitutionalism.” The case, Moore v. Texas, affirmed prior holdings that mentally challenged individuals cannot be subjected to the death penalty without violating the Eighth Amendment’s ban on “cruel and unusual punishment.” The case involved a death penalty case from Texas involving a conviction for murder during a failed robbery.

Bobby James Moore was convicted of capital murder and sentenced to death. The crime was committed in April, 1980 and appeals have been bouncing around in the courts ever since. Texas courts refused Moore’s pleas that he was mentally disabled and therefore ineligible for the death penalty under the Court’s previous Eighth Amendment rulings; his challenges were finally successful, some 37 years later, as the Court articulated new standards for designating what qualified as mentally challenged.

Texas, the Court held, used standards that were too strict, relying mainly on Moore’s IQ test scores, which were above the 70 cut off point for determining mental disability. The Court held, however, that that the State did not take into account the standard error measurement which is “a reflection of the inherent imprecision of the test.” In Moore’s case the standard error of measurement yielded a range of 69-79, which would put the lower range score of 69 below the cut off point. In any case, the Court warned, the IQ evidence is not sufficient. Texas courts also erred in concluding that Moore didn’t suffer ”significant adaptive functioning deficits,” including childhood abuse and suffering, academic failure, for which he was constantly mocked by his peers, ”racially motivated harassment and violence at school,” “drug abuse and absenteeism,” among a host of other behaviors. These “count in the medical community as ‘risk factors’ for intellectual disability.” So, even though Moore’s IQ might not qualify him as mentally disabled, when “risk factors” are added to the calculus, the case for mental disability is greatly enhanced. The State of Texas did not adhere to the medical community’s consensus in evaluating how far these risk factors contribute to intellectual incapacity. As the Supreme Court said in a previous case, mental disability is a condition, not a number.

The dissent vigorously charged that the majority opinion, written by Justice Ruth Bader Ginsburg, had completely abdicated its judicial responsibilities by allowing medical standards of disability to substitute for constitutional analysis. As Chief Justice Roberts wrote for the dissent (joined by Justices Thomas and Alito), the majority “crafts a constitutional holding based solely on what it deems to be medical consensus about intellectual disability.” The Court’ decision,” the Chief Justice complains, “constitutionalizes rules for which there is not even clinical consensus—a consequence that will often arise from the approach charted by the Court today.” The Chief Justice reminds the Court that its only task “should [be to] determine the content of the Eighth Amendment.”

Evolving Standards of Human Decency

Chief Justice Earl Warren set the tone for Eighth Amendment jurisprudence when he wrote in 1958 that “the basic concept underlying the Eighth Amendment is nothing less than the dignity of man. . . The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” In 1985 Justice William Brennan, echoed the sentiments of Warren, when he gave a speech—now widely celebrated by Progressive constitutionalists—in which he rejected the idea of original intent jurisprudence as “facile historicism.” Rather, he said, “the Constitution is a sublime oration on the dignity of man,” and since “the demands of human dignity will never cease to evolve,” the Constitution itself must continually evolve to meet those demands—demands that it has been entrusted to the courts to articulate.

Justice Brennan, however, singled out one part of the Constitution that does not evolve. There is, he said, one “fixed and immutable” demand of “human dignity”—that “capital punishment is under all circumstances cruel and unusual punishment prohibited by Eighth and Fourteenth Amendments.” Curiously enough, the one “fixed and immutable” demand in the universe of otherwise constantly evolving demands flies in the face of the plain language of the Constitution. The Fifth Amendment, of course, was ratified contemporaneously with the Eighth. The Fifth Amendment not only refers to “capital or otherwise infamous crime,” but also provides that no person shall “be deprived of life, liberty, or property, without due process of law.” The clear meaning of this latter phrase is that with due process of law persons can be deprived of life. The Eighth Amendment, therefore, cannot possibly be read to include the death penalty as “cruel and unusual punishment.”

Since the only “immutable” point in Justice Brennan’s universe of constitutionalism contradicts the clear and unequivocal language of the Constitution, what is “immutable” has no more constitutional standing that what is constantly evolving. Justice Brennan’s constitutionalism—no less than Chief Justice Warren’s—is an illusion, or to use current Progressive-liberal terms, it is “post-constitutional.” Constantly evolving standards of human dignity can never serve as the foundation of yconstitutional principles or constitutional jurisprudence.

Justice Ginsburg, quoting the 2014 Supreme Court case Hall v. Florida, affirmed that “the Eighth Amendment prohibits ‘cruel and unusual punishments,’ and ‘reaffirms the duty of the government to respect the dignity of all persons.” Thus the Eighth Amendment contains an affirmative duty to respect the human dignity of all persons, regardless of the crimes which they have committed. What are the constitutional obligations owed to such persons? Certainly due process of law is a constitutional guarantee of all accused of crime, and once convicted there is a constitutional guarantee that all punishment for crime shall not be “cruel and unusual.” What in the Eighth Amendment protects respect for “human dignity?” Is according respect for the human dignity of those who have demonstrated by their actions that they refuse to respect the dignity of others a constitutional command? Honoring those who refuse—by murder or other acts—to recognize the dignity others would rather seem to dishonor the very idea of human dignity itself.

To honor the human dignity of those who refuse to honor the human dignity of others is an absurdity than destroys the very concept of human dignity. Civil society is grounded in the mutual recognition of the human dignity of fellow citizens. To use the language of the Declaration: all men are created equal and are endowed by their Creator with inalienable rights, life, liberty and the pursuit of happiness. Those who fail to honor the obligation to recognize the humanity of others—their rights and liberties—have voluntarily withdrawn from the social compact that constitutes civil society. Once they have demonstrated they no longer have obligations to society, society no longer has obligations to them, except that American society has pledged always to extend due process rights and protection from cruel and unusual punishment. If the Constitution stands for the ultimate human dignity of the individual, as Brennan insisted, then according honor to those who refuse—by their criminal acts—to recognize the dignity of others would simply convert the Constitution into a “suicide pact.”

A true regime of human dignity honors those who demonstrate a regard for human dignity by honoring the laws and the Constitution and dishonors those who are either incapable or unwilling to recognize the human dignity or human rights of others. The test of humanity must surely be the mutual recognition of human dignity. The death penalty is not, as Progressive liberalism contends, an affront to human dignity; rather it is a spectacular affirmation of human dignity. Civil society cannot tolerate those who openly violate the human dignity of others.

Eighth Amendment Prohibits Cruel and Unusual Punishment, Not “Excessive Punishment”

In previous Eighth Amendment cases, the Court has maintained that the Amendment prohibits “excessive punishment.” The Court drew this inference from the fact that the Amendment prohibits “excessive bail” and “excessive fines.” The plain language of the Eighth Amendment prohibits, not excessive punishment, but “cruel and unusual punishments.” The doctrine that has developed from this creative reading of the Constitution is that punishment must be proportional to the crime. In the case of the mentally impaired, since their moral culpability is said to be reduced, their punishment must be proportional to their reduced culpability. Justice Antonin Scalia, of course, always protested this bowdlerization of the Constitution’s text. There is no proportionality requirement demanded by the plain language of the Eighth Amendment, and no indication that any of the framers would have regarded a failure to adopt a lesser standard of moral culpability as a violation of the “cruel and unusual punishment” clause. Those who are unwilling and those who are incapable of meeting the obligations of civil society are equally culpable when it is a matter of capital crimes.

Is there a consensus in the country that the mentally defective should not suffer the death penalty? The majority opinion argues that such a consensus exists and must be recognized as part of the “evolving standards that mark the progress of a maturing society.” How did the provisions of the Bill of Rights become dependent on opinion polls? We used to celebrate Justice Robert Jackson’s admonition that the provisions of the Bill of Rights were ”beyond the reach of majorities.” In fact, Justice Roberts argued that the rights enshrined in the Bill of Rights were fixed and permanent. He would not have entertained the idea that the Bill of Rights was evolving toward greater tolerance of crime and criminals. Giving sanctuary to criminals seems to be the current evolutionary meme dominating Progressive liberalism, and the Supreme Court has learned what role it must play in this narrative.

About the Author:

Edward J. Erler
Edward J. Erler is a senior fellow of the Claremont Institute and professor of political science at California State University, San Bernardino. He is the author of The American Polity (Crane Russak, 1993), and articles on the 14th Amendment, affirmative action, immigration, the death penalty and other topics. From 1983-84, Erler served as director of bicentennial programs at the National Endowment for the Humanities, and is a former member of the California Civil Rights Commission.
  • Captain Mann

    Wait a minute. This guy was convicted THIRTY-SEVEN YEARS AGO?! And our justice system is the best in the world? BULLSHIT it is!

    • Marshall Gill

      Do you realize how many judges and attorneys have profited from keeping this scum bag alive? We do need a more responsive death penalty, for attorneys.

      • Captain Mann

        I agree that we do need a more responsive4 death penalty, but our justice system has a history of using devious means to prosecute people, and those means lead to the deaths of innocent people.

  • The left never rests, their ideology is the perpetual motion machine.

  • Brother John the Deplorable

    This is complete and total nonsense. If we had in our custody an “evil genius” type who killed a lot of people in clever and creative ways, we’d fry his ass.

    Why is it someone who kills people but can’t do math at a third-grade level is exempted from being disposed of? Why wouldn’t we want to get rid of these troublesome people?

    Why is it “cruel” to execute someone stupid? No one takes perverse pleasure from it; to the extent that it’s “unusual,” it’s only because we don’t hang enough violent felons because idiot judges and lawyers stand in the way. Let’s get the express lane moving and empty out our jails that way.

  • BanBait

    The subsummation of the Bill of Rights and the Constitution in general occurred in the 1930’s, thanks to FDR and our great-grandparents. They threw it way out of economic fear and ignorance.

  • Sam McGowan

    The problem with interpretation of the death penalty is that (thanks to the media), it is perceived as a “deterrent” to future crime rather than removing the perpetrator from the world, which is the actual intent.

    • Gordon TheGrumpus

      Sam, it is a deterrent, and one that is completely effective: the fellow punished that way will not commit another crime!
      ;~)❱

      Pulling my tongue from out my cheek, I must say that every honest study done shows that those most likely to become members of the population who would be subject to termination break down into two groups: those who would be/are deterred and those not.

      The latter is a tiny group compared to the former, and those same studies indicate that there is nothing that would deter them.

      But, this doesn’t negate your point, which is a very important one.

      There is only one way to guarantee a person’s removal from society, death.

      Anything less can be undone in some fashion… which is always “unforeseen” by the courts at the time the convict is sentenced.

      “No chance of parole” doesn’t mean that an inmate can’t be released b/c the jail is overcrowded, for example.

      – Gordon

  • GAbuck

    Following this logic, if a citizen’s punishment for a criminal act is proportioned according to their mental capacity; shouldn’t their other public responsibilities like voting also be proportional? The left’s reasoning that, not only IQ, but other “risk factors” like drug abuse should be taken into account when deciding a person’s capacity for social responsibility. Taken together, this ruling would validate poll tests and refusing the vote for those found to be degenerate.

    Really this a landmark ruling. It overruns the 14th Amendment which says citizens are equal before the law. It gives government the right to pick and choose social responsibility based on fluid opinions of “experts” on mental capacity.

    • Grampy_Bone

      It’s unbelievable because crime and stupidity are clearly linked. If the courts say stupid people can’t be liable for their actions what they are essentially saying is it is unconstitutional to punish criminals.

      In other words, the morlocks have free reign on the elois, but you’ll be jailed if you fight back. Liberals are okay with this because the morlocks vote for who they want, and they think they’ll be eaten last.

    • Ironwrkr

      Very good!

  • Grampy_Bone

    So black man is retarded but only when it gets him out of jail

  • JamesDrouin

    “Justice Ginsburg, quoting the 2014 Supreme Court case Hall v. Florida, affirmed that “the Eighth Amendment prohibits ‘cruel and unusual punishments,’ and ‘reaffirms the duty of the government to respect the dignity of all persons.””

    Justice Ginsburg obviously meant “… to respect the dignity of all persons except the victims, after all, they’re already dead and can’t legally vote.”

  • Peta Johnson

    The focus of the 8th Amendment was punishments such as drawing and quartering, which involved castration and removing the bowels whilst alive. It has been transformed into shield for the special protected species of the Left – murderers. It is surprising that these people are viewed so favorably, but I guess there is no accounting for political taste.