Defining ‘Cruel and Unusual’

In the March 6 commentary “Whose Constitution Is It Anyway?” constitutional law professor Douglas Kmiec derides the U.S. Supreme Court for deciding that executing minors is “cruel and unusual punishment.” Kmiec argues that this wasn’t the meaning of the 8th Amendment in 1789.

But “original intent” is a dubious and often impossible standard for modern interpretation. The record of Constitutional Convention and state ratifying debates shows that the founders frequently disagreed about the meaning of the text they drafted or approved. Moreover, they did not intend that their interpretation, even when ascertainable, should constrain future generations.

James Madison, the “father of the Constitution,” later expressed concern that his participation in its drafting would bias later interpretation. Thus, ironically, the founders’ “original intent” was that each generation would decide the meaning of the living Constitution for itself.

And who would do so? In the most important area of individual rights, it would not be “the people.” The very purpose of the Bill of Rights was and is anti-majoritarian. It empowers a few Supreme Court judges to protect the unpopular and politically powerless -- such as arrogant young murderers -- whenever Kmiec’s “the people by passing laws” deny the basic and broadly phrased rights Americans most value. Freedom from government -- that is, from “the people” -- is among the Constitution’s most important and still-vital legacies of “original intent.”

We may or may not agree with the court’s “assertion” of conscience to strike down what it considers unconstitutional punishment, but we should strenuously defend its right to do so.

Art Levine

Fullerton

Kmiec may bridle at the idea that the meaning of the Constitution was not fixed at the time of its adoption in 1789, but he is wrong to attribute the contrary idea, that the Constitution must be interpreted and adapted to meet new situations, to Chief Justice Earl Warren in the 1950s. The chief justice who wrote that the Constitution is “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs,” was John Marshall, and he wrote that in 1819 in McCulloch vs. Maryland.

Professor Kmiec may think, more than 200 years after the Constitution was written, that the framers did not intend for judges to change constitutional meaning, but Chief Justice Marshall, writing only 30 years after the adoption of that document, certainly disagreed.

John Hamilton Scott

Sherman Oaks

I grew up in a United States in which black citizens were, by law, forced to live in “their own” neighborhoods and attend “their” schools and could only use “their” restaurants and hotels. Drinking fountains and public toilets were marked “white” or “colored.” If we had adopted Kmiec’s approach to constitutional jurisprudence and waited for white-dominated legislatures to correct this monstrous social evil, we’d still be waiting.

The ability of the Supreme Court to interpret the Constitution to adjust to changing social conditions in this country is one of the most valuable parts of the machinery of our government. Most of the time, Kmiec’s kind of “originalist” thinking is agenda-driven. Ask him how he stands on the establishment clause, or personal freedoms for gays and lesbians.

Jonathan Schwartz

Marina del Rey

Had the intention of the 8th Amendment been to forever freeze our nation in the practices of 1789, the framers would have listed the specific acts of punishment that were, and were not, acceptable for all time.

By choosing, instead, to use a term open for interpretation to define acceptable punishment, the framers clearly meant for future generations to decide in the context of their times what the standard should be. To argue that Supreme Court justices are overstepping their authority by using 21st century notions of what “cruel and unusual” means -- and must instead consider only what was acceptable in 1789 -- is clearly absurd!

Jeff Vaughn

Encino