Administration of Justice

Question 1. At issue in this essay is the question of whether physical punishment such as lashes is necessarily unconstitutional. It will be argued, based upon the U.S. Constitution, and particularly upon the Eighth Amendment, that certain types of physical punishment are not necessarily unconstitutional. The Eighth Amendment was adopted in 1791 as part of the Bill of Rights and was inspired by language from the English Bill of Rights of 1689. It declares: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted" (in Hall, 1992, p. 247). These three causes provide the only substantive federal constitutional limits on the severity of permissible sanctions in criminal justice.

The clause prohibiting cruel and unusual punishments has been the most controversial and important of the three constraints imposed by the Eighth Amendment. For nearly a century after the establishment of the United States, the Eighth Amendment's prohibition of cruel and unusual punishments was virtually a dead letter. The Supreme Court conceded that torture and punitive atrocities such as burning at the stake, crucifixion, or breaking on the wheel would be cruel and unusual (Wilkerson v Utah, 1879), but other forms of punishment actually authorized by statute such as hanging, shooting, or electrocution were not defined as cruel and unusual (in re Kemmler, 1890). The criterion used by the Court seems to have been

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in the Philippines was convicted under Philippine law of falsifying official documents. He was sentenced to a heavy fine and to 15 years of hard labor while wearing chains. The U.S. Supreme Court held that the Philippine law violated the ban on cruel and unusual punishment and ordered that Weems should be freed (Hall, 1992). Writing for the majority, Justice Joseph McKenna said that what was cruel and unusual should be determined by current sensibilities and not fixed by impotent and lifeless formulas. The Weems penalty was seen as disproportionate when compared to that levied to more serious crimes (Hall, 1992). Nevertheless, it must be recognized that the Weems Court ruled against both a disproportionately long prison term and hard labor while wearing chains, thus not necessarily contending that hard labor in chains is universally cruel and unusual. Thus, lashes or flogging is not necessarily unconstitutional. Question 2. The issue addressed in this essay focuses upon the validity of original intent as a form of constitutional interpretation. Constitutional interpretation as defined by Hall (1992) is both the process by which the U.S. Constitution is construed and the study of that process. The latter is principally

Category: Government - A