# Death Penalty and the Eighth Amendment **URL:** \ **Category:** Great Debates\ **Created:** [April 16, 2009, 1:37am UTC](https://boards.straightdope.com/t/death-penalty-and-the-eighth-amendment/493253 "2009-04-16T01:37:08Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 16, 2009, 1:37am UTC](https://boards.straightdope.com/t/death-penalty-and-the-eighth-amendment/493253/1 "2009-04-16T01:37:08Z")
Many people who believe the death penalty to be constitutional under the Eighth Amendment note that the Fifth Amendment allows the state to take “life, liberty, or property” with sufficient due process. Therefore, the Constitution clearly allows for the taking of life. But even within the Textualist paradigm, this argument has a problem. If you read the entire Fifth Amendment, you might spot it: > [@](#): > > No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. I started this thread for two reasons. First, just for fun, to see if you spot the textual problem. Do you see it? The problem is: The double jeopardy clause contemplates the taking of limbs! We certainly understand the Eighth Amendment to forbid amputation as criminal punishment. Yet, under parallel reasoning to the death penalty argument, clearly the Constitution contemplates putting limbs in jeopardy as criminal punishment. And second, to debate whether this problem with the argument is sufficient to defeat it. My thoughts on the second question: [spoiler] I think this probably isn’t enough by itself to defeat the Textualist argument. Obviously the phrase “life or limb” is not meant literally. The Constitution is referring to serious jeopardy, including mere imprisonment. A Strict Textualist could probably argue that even the contemporaries of the framers understood the language “life or limb” to not refer to actual amputation. There seems to be historical support for that proposition. A Textualist could also argue that amputation is constitutional, but that would create other problems in explaining the history which indicates that the framers thought they were prohibiting amputation with the Eighth Amendment. This problem does seem to cast a little doubt on the belief that we must take the phrase “life, liberty, or property” literally. And it is a good reminder of why “plain meaning” Textualism is folly–at a minimum, sometimes you need to go beyond plain meaning and ask what the words actually meant at the turn of the 18th century. Once you begin that historical inquiry, especially if you begin delving into the intent of the drafters, you drift away from the objectiveness that textualists strive for. [Note: there are obviously other reasons to think the death penalty is constitutional. I don’t mean to imply that this is the sole, or even primary argument.][/spoiler] ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [April 16, 2009, 2:52am UTC](https://boards.straightdope.com/t/death-penalty-and-the-eighth-amendment/493253/2 "2009-04-16T02:52:24Z")
Nitpick: [spoiler]I believe that jeopardy of “limb” is generally taken to mean corporal punishment (such as stocks, caning, flogging, or thumbscrews), not amputation. I don’t know that amputation was ever a punishment under English common law after Saxon times, but I may be wrong. Some of those punishments would have been permissible in Colonial times, although Scalia has said that he cannot conceive of a case where even he would uphold flogging or thumbscrews.[/spoiler] ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [April 16, 2009, 1:28pm UTC](https://boards.straightdope.com/t/death-penalty-and-the-eighth-amendment/493253/3 "2009-04-16T13:28:37Z")
If you start from the assumption that the Eighth Amendment only forbids punishments that are of the same nature as those forbidden by the Eighth Amendment at the time of the ratification, then you don’t need to make reference to the Fifth Amendment, other than trivially, because capital cases existed at the time (indeed, note that the Fifth Amendment discusses them directly). If you start from the position that the current scope of punishments prohibited by the Eighth Amendment is not limited in this fashion, but changes with time and the mores of society, then the presence of anachronistic references in a document more than 200 years old is irrelevant to discussion of the here and now. End of story. So this is nothing more than a red herring. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 16, 2009, 4:54pm UTC](https://boards.straightdope.com/t/death-penalty-and-the-eighth-amendment/493253/4 "2009-04-16T16:54:38Z")
> [@DSYoungEsq](#): > > So this is nothing more than a red herring. No it isn’t. You’ve created a false dichotomy. You’ve described how a strict historical originalist and a living constitutionalist would approach the question. But textualism does not ask what was prohibited at the time, it asks what the language meant at the time. The two aren’t identical, and yield divergent results (as one sometimes sees in Scalia’s jurisprudence). Indeed, of the two positions you’ve described, it is safe to say that no one on the Supreme Court subscribes fully to the latter (ignoring either the due process text or the cruel and unusual text as anachronistic) and only one or two to the former (as you’ve framed the inquiry, perhaps only Thomas). Also note that, precisely because the two positions you outline don’t represent the full spectrum of relevant constitutional visions, the Fifth Amendment argument has been made by the Supreme Court itself. If it is a red herring, it is a widely discussed and well-regarded one. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [April 16, 2009, 6:09pm UTC](https://boards.straightdope.com/t/death-penalty-and-the-eighth-amendment/493253/5 "2009-04-16T18:09:28Z")
Well, according to West’s Encyclopedia of American Law: “The words life or limb are not interpreted strictly; they apply to any criminal penalty.” And if you read George C. Thomas’s “Double Jeopardy” (footnotes omitted), he says: > [@](#): > > The earliest recorded use of “life or limb” applies in the Magna Carta, where it described trial by battle, a species of criminal trial in which the defendant’s life and limb were literally in jeopardy. Since trial by battle was, by the eighteenth century, a “long forgotten procedure of the dark ages” the Framers almost certainly did not have the Magna Carta use in mind. Other evidence suggests that the Framers did not mean “limb” to be taken literally. Death replaced amputation and mutilation as the usual punishment for felons as early as the thirteenth century. Moreover, when debating the prohibition of cruel and unusual punishment, its opponents in the First Congress conceded that it would bar amputation. Questioning the wisdom of prohibiting cruel and unusual punishments, Samuel Livermore stated that “villains often deserve whipping, and perhaps having their ears cut off; but are we in future to be prohibited from inflicting these punishments because they are cruel?” If Livermore 's view of the scope of the Eighth Amendment was correct, there is no reason to believe the Framers would have implicitly signaled acceptance, in the Double Jeopardy Clause, of a type of punishment that they simultaneously forbade in the Eighth Amendment. The historical argument for taking “limb” literally is thus difficult to maintain, though Sigler implicitly accepts it The thing is you are setting up more of a strawman than a red herring (or maybe a man made of straw and red herrings), because not even textualists analyze it like you laid out, and the textualist arguments that it shouldn’t be analyzed that way are a lot stronger than trying to make a textualist argument that the fifth amendment shouldn’t be analyzed to allow capital punishment. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 16, 2009, 6:52pm UTC](https://boards.straightdope.com/t/death-penalty-and-the-eighth-amendment/493253/6 "2009-04-16T18:52:14Z")
> [@Captain\_Amazing](#): > > Not even textualists analyze it like you laid out Yes, they do. The argument has been made in this very board dozens of times (not to mention in front of the Supreme Court). > [@Captain Amazing](#): > > And the textualist arguments that it shouldn’t be analyzed that way are a lot stronger than trying to make a textualist argument that the fifth amendment shouldn’t be analyzed to allow capital punishment. Did you read both parts of my post? ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [April 16, 2009, 7:14pm UTC](https://boards.straightdope.com/t/death-penalty-and-the-eighth-amendment/493253/7 "2009-04-16T19:14:33Z")
> [@Richard\_Parker](#): > > Yes, they do. The argument has been made in this very board dozens of times (not to mention in front of the Supreme Court). The argument that the bill of rights allows amputations has been made on this board dozens of times? > [@](#): > > Did you read both parts of my post? I did. But I still don’t know what you’re trying to argue. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 16, 2009, 7:25pm UTC](https://boards.straightdope.com/t/death-penalty-and-the-eighth-amendment/493253/8 "2009-04-16T19:25:31Z")
> [@Captain\_Amazing](#): > > The argument that the bill of rights allows amputations has been made on this board dozens of times? The argument that because the word “life” appears in the Fifth Amendment, the Eighth Amendment must not forbid the taking of life as a criminal punishment. And the “life or limb” rebuttal has only been used by that ignoramous, Justice Brennan. Brennan wrote in Furman v. Georgia, that the “textual consideration raised by the Bill of Rights itself . . . [that] the Fifth Amendment declares that if a particular crime is punishable by death, a person charged with that crime is entitled to certain procedural protections” is not determinative because, among other reasons, “No one, of course, now contends that the reference in the Fifth Amendment to ‘jeopardy of . . . limb’ provides perpetual constitutional sanction for such corporal punishments as branding and ear-cropping, which were common punishments when the Bill of Rights was adopted.” You are of course free to think that Justice Brennan is merely rebutting straw men with red herrings, but you can’t reasonably argue that I’ve just pulled this argument out of my ass. > [@Captain Amazing](#): > > I did. But I still don’t know what you’re trying to argue. I was pretty clear, I thought. I want to know what you think about “whether this problem with the argument is sufficient to defeat it.” As I wrote, I think it probably weakens, but does not defeat the textualist argument. Others disagree. You’ve offered your opinion that it isn’t even relevant to the textualist argument, though I don’t see how that’s supportable. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [April 16, 2009, 7:38pm UTC](https://boards.straightdope.com/t/death-penalty-and-the-eighth-amendment/493253/9 "2009-04-16T19:38:34Z")
The problem with Brennan’s argument is that no one at the time the Fifth Amendment was written believed that “‘jeopardy of . . . limb’ provides perpetual constitutional sanction for such corporal punishments as branding and ear-cropping, which were common punishments when the Bill of Rights was adopted” Justice Brennan should have known both that an ear isn’t a “limb”, and that “life and limb” was an anachronistic term at the time of the writing of the Constitution. I think its possible that Justice Brennan did know that, but didn’t particularly care because he wanted to see the death penalty gotten rid of. The thing is, no textualists are really “plain meaning textualists” anymore. Textualism has moved beyond that, and most textualists look at what the language of the law meant at the time the law was written. ---
**Author:** ![jackdavinci](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jackdavinci/32/3259_2.png) [@jackdavinci](https://boards.straightdope.com/u/jackdavinci)\ **Post date:** [April 17, 2009, 12:57pm UTC](https://boards.straightdope.com/t/death-penalty-and-the-eighth-amendment/493253/10 "2009-04-17T12:57:14Z")
> [@Richard\_Parker](#): > > The double jeopardy clause contemplates the taking of limbs! We certainly understand the Eighth Amendment to forbid amputation as criminal punishment. In what way do we understand the Eight Amendment to forbid amputation? Textually I can see where it seems to allow it. But I’m not seeing the part where it seems to disallow it, causing your alleged contradiction. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 17, 2009, 2:00pm UTC](https://boards.straightdope.com/t/death-penalty-and-the-eighth-amendment/493253/11 "2009-04-17T14:00:08Z")
> [@](#): > > In what way do we understand the Eight Amendment to forbid amputation? Textually I can see where it seems to allow it. But I’m not seeing the part where it seems to disallow it, causing your alleged contradiction. If I’m understanding his point, he’s saying that we don’t recognize chopping off limbs as an acceptable form of punishment even though the possibility of it is mentioned in the Eighth Amendment. So the argument that capital punishment is constitutional because it’s also mentioned as a possibility doesn’t hold any weight either. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 17, 2009, 3:13pm UTC](https://boards.straightdope.com/t/death-penalty-and-the-eighth-amendment/493253/12 "2009-04-17T15:13:11Z")
Correct. The argument is merely that if we follow the same logic, amputation is constitutional. If we reject that conclusion, we must modify the other argument. As I note in the OP, **jackdavinci** , one way around the argument is simply to argue that amputation is constitutional. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 17, 2009, 3:26pm UTC](https://boards.straightdope.com/t/death-penalty-and-the-eighth-amendment/493253/13 "2009-04-17T15:26:01Z")
Is this “debate” an attempt at actual enlightenment about a real issue, or is it just word-sparring for the fun of it? ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 17, 2009, 3:35pm UTC](https://boards.straightdope.com/t/death-penalty-and-the-eighth-amendment/493253/14 "2009-04-17T15:35:40Z")
The Constitution is conveyed to us in words. So debate about what words mean, and what we look to in order to find that meaning, is pretty much the whole ball of wax. I personally would have preferred pictures if for no other reason than it would make interpretation more fun. But if I tell you that it’s “word-sparring for the fun of it” will you move along? ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [April 17, 2009, 3:50pm UTC](https://boards.straightdope.com/t/death-penalty-and-the-eighth-amendment/493253/15 "2009-04-17T15:50:26Z")
> [@](#): > > Correct. The argument is merely that if we follow the same logic, amputation is constitutional. If we reject that conclusion, we must modify the other argument. As I note in the OP, jackdavinci, one way around the argument is simply to argue that amputation is constitutional. I understand what you’ve said but it seems to me to be a pretty convaluted way to establish a fairly minor point. The best conclusion that I think can be reached by this argument is that the Constitution doesn’t mandate capital punishment - which is an argument I don’t think many people are making. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 17, 2009, 4:07pm UTC](https://boards.straightdope.com/t/death-penalty-and-the-eighth-amendment/493253/16 "2009-04-17T16:07:59Z")
> [@Little\_Nemo](#): > > I understand what you’ve said but it seems to me to be a pretty convaluted way to establish a fairly minor point. The best conclusion that I think can be reached by this argument is that the Constitution doesn’t mandate capital punishment - which is an argument I don’t think many people are making. No, that’s not quite right. The proponents of the death penalty argue, among other things, that the presence of the word “life” in the due process clause means that capital punishment is allowed until there is a constitutional amendment. As I said, people on this board as well as Supreme Court justices have made that same argument. The exact parallel is that the presence of “limb” in double jeopardy means means that amputation is allowed until there is a constitutional amendment. Since the argument is about what the Constitution allows, you’re wrong to characterize the conclusion as being about what the Constitution mandates. And it isn’t convoluted at all. It’s quite elegant, actually. In fact, it is the only _textualist_ way to challenge the pro-DP due process argument. That alone makes it worthy of consideration, at least, before rejecting it. As I acknowledge in the OP, a textualist can (and most do) take the next step of asking whether “life and limb” is meant literally, but once we venture into historical understanding of the term, we’re already in murkier waters than the proponents of the due process argument like to concede. Obviously, this is one battle among a dozen or more over the constitutionality of the death penalty. But it is not as insignificant as the gut reactions of some of the posters here would suggest. ---
**Author:** ![mangeorge](https://avatars.discourse-cdn.com/v4/letter/m/d78d45/32.png) [@mangeorge](https://boards.straightdope.com/u/mangeorge)\ **Post date:** [April 17, 2009, 4:12pm UTC](https://boards.straightdope.com/t/death-penalty-and-the-eighth-amendment/493253/17 "2009-04-17T16:12:54Z")
From a purely grammatical POV, doesn’t the “or” apply the same jeopardy to both? It does in other parts of the amendment. Did The Writers consider lopping off a thumb to be more barbaric than taking a life, thinking people would assume they meant something less than “take” for the “limb” part? Peace, mangeorge ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 17, 2009, 4:30pm UTC](https://boards.straightdope.com/t/death-penalty-and-the-eighth-amendment/493253/18 "2009-04-17T16:30:10Z")
> [@mangeorge](#): > > From a purely grammatical POV, doesn’t the “or” apply the same jeopardy to both? It does in other parts of the amendment. Did The Writers consider lopping off a thumb to be more barbaric than taking a life, thinking people would assume they meant something less than “take” for the “limb” part? > Peace, > mangeorge The work that Captain Amazing cites a few posts back is mostly [available](http://books.google.com/books?id=ce5zWEHGCS0C&pg=PA120&lpg=PA120&dq=The+earliest+recorded+use+of+%22life+or+limb%22+applies+in+the+Magna+Carta,+where+it+described+trial+by+battle&source=bl&ots=srSos7oeKo&sig=dymPFWBeAtworOwtVI36jWndTlY&hl=en&ei=7q3oSZyGN-PmnQez3oCdBw&sa=X&oi=book_result&ct=result&resnum=1) on Google books. It has a pretty interesting discussion of the legislative history of using the term “life or limb.” Since I can’t easily quote the PDF, I’ll let you read for yourself. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [April 17, 2009, 8:33pm UTC](https://boards.straightdope.com/t/death-penalty-and-the-eighth-amendment/493253/19 "2009-04-17T20:33:32Z")
> [@Richard\_Parker](#): > > So debate about what words mean, and what we look to in order to find that meaning, is pretty much the whole ball of wax. Ever hear of context? :dubious: ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [April 17, 2009, 8:35pm UTC](https://boards.straightdope.com/t/death-penalty-and-the-eighth-amendment/493253/20 "2009-04-17T20:35:03Z")
> [@ElvisL1ves](#): > > Ever hear of context? :dubious: If I didn’t make clear earlier, I have little interest in playing this game of responding to your shallow, dismissive comments that deliberately misconstrue my points. Perhaps you can find someone else to toy with. [Next page](https://boards.straightdope.com/t/death-penalty-and-the-eighth-amendment/493253.md?page=2)