Well, there’s the 8th Amendment itself, isn’t there? If they did not disapprove and/or abhor cruelty, why forbid its application as punishment? Not making a whole lot of sense here, John.
Oh, elucidator, almost forgot: one more tiny point, just for your consideration.
What’s the TITLE of the Eighth Amendment?
Once again, this is not something they created. This was, to the phrase, a part of English Common Law at the time. Yes, they were against cruelty, but no more so than any Englishman of the era. So there is no evidence, in that phrase alone, that they were introducing some newer, higher standard. Had they used some other, more restrictive phrasing, perhaps you’d have a point. But they didn’t. You’ve given us no reason to interpret that phrase any differently than it was interpreted in Colonial times or in England.
So they abhorred cruelty as punishment for crimes, but that abhorrence did not prevent them from allowing public flogging, the lopping off of ears, and traffic in human slavery. Not only allowing that last practice but participating in it. You don’t know them by their “works”, you know them by their deeds.
I haven’t the slightest idea what your point is here. How about you just tell me? Best I can tell, the title is “Eighth Amendment - Cruel and Unusual Punishment”. Do I get a cookie?
I said it was? Cite, please.
OK doke.
Ding! Ding! Ding! Do you accept Cookie Pal?
How does my argument fail if this attitude is not an original and brand spanking new development? I said it was because they were Enlightenment gentlemen, you say it was because it was a commonly held opinion. OK, so what, either way?
What are you talking about? Now, not only do I have to prove it more original, but more restrictive? To what end? Why? How does that even* remotely * impact my argument?
Is this your first experience with human hypocrisy?
Uh, John? That’s what the word means. “Deeds” = “works”, at least in the Sunday School I went to. Standard, white bread Methodist, almost generic.
“Article the Eighth”?
Damn! Look, I was just going to say that. On the tip of my, ah, keyboard. Oh, OK, give mlees the cookie.
No fair!
Nope. No cookie for me either.
Just says “Amendment VIII” here…
Bricker raises a fine point. We are arguing over what the Constitution says and not what the law says - when the law is what will govern police and government behavior, and the Constitution the ultimate composition of that law.
So the correct answer is Title 42.
Is that it, Bricker? Its a Douglas Adams riff?
I’m sorry. Disregard this brilliant observation of mine.
I read commentary about the original draft of the amendment’s language, and I completely missed that the title didn’t end up saying something about criminal cases. Belay my last.
Can I get a token cookie? How 'bout an animal cracker?
Why is anyone bothering to continue the discussion with elucidator? The assertion of that poster is unsupported by any evidence whatsoever. elucidator assumes certain facts not in evidence, uses these assumptions to reach a determination about the purpose of the amendment which it has never been found to have, and then defies everyone to contradict his conclusion (which, of course, can’t be contradicted because you can’t attack the fundamental underpinnings of the conclusion, since the assumptions upon which it is based come out of his/her mind entirely).
Unless and until elucidator can support the quaint notion that the people who wrote up and put into effect the Bill of Rights of 1791 (of which the Eighth Amendment is a part; please note that this means discussing the Enlightenment of the Constitutional Convention is irrelevant - we need to discuss the Enlightenment of the Congress of 1791 which passed the amendment, and the Englightenment of the various state legislatures of 1791 which ratified it) intended by the Eighth Amendment to cover all forms of torture because of their advanced notions of how society should behave, then the assertions elucidator makes should elicit nothing more than a simple, “yeah, whatever.” I mean, I can make things up, too; they shouldn’t result in any more attention. 
Whoa, big horse. I don’t claim to expand the Amendment beyond its clear purpose, only that the effort to make such an Amendment reveals the mindset of the Founders. i.e., a clear aversion to cruelty. An aversion so marked that the go the extra step and deny its application as punishment.
If they will forbid its appication to the least worthy of us (criiminals), we may fairly assume that they were more or less generally opposed to cruelty and torture as an instrument of governance.
If you have evidence to the contrary, bring. Failing that, you are equally free to cast vague aspersions on my character and posting style. If you have nothing better to do.
Well, it’s “clear purpose” is to limit the punishment given to convicted criminals. Unless, of course, you choose to ignore the historical context of that phrase, when it’s history is well documented. It’s one thing to be ignorant of that context, it’s another to continue to ignore it once it has been explained.
Being as how you’re big on admonishing people for trying to read the minds of others, why are you trying to do that here? It isn’t necessary to read anyone’s mind when we know that the self incrimination clause in the 5th is meant to prevent the torturing of the accused.
Clearly there are some here who don’t know how torture works.
It is not punishment for not answering questions. It’s about reward for answering them.
Of course thats its “clear purpose”, where have I disagreed? Hell, I’ve had to state my agreement with that about 10 times already! You keep coming back at me as though I disagreed, and then proceed to attack the supposed reasons for a non-existent disagreement. And on that non-existent basis, you then proceed to accuse me of stubborn ignorance for holding much the same opinion on that as you do! Seriously, WTF?
Sometimes its easier than other times. Like when people make a law forbidding gay striped unicorns, I’m going to make a wild leap and assume that they are opposed to gay striped unicorns. Crazy, huh?
Now, if I were to suggest that they did so because they were closeted hippo humpers, that would be mind reading.
As to the Fifth, again, we are in accord, with this one minor proviso: that a strict literal reading of the Fifth does not explicitly support such a reading. It is an emanation, a penumbra, an interpretation. And I got no problem with that, I think our understanding of the Framers and their intent makes that a wholly justifiable inference.
One of the ways you might induce a man to testify against himself is by applying torture. But is not the only way, you can ask him a question he shouldn’t be required to answer. Or you can pull a Perry Mason on him. And, of course, the word “torture” nowhere appears therein. But we are assured that any such attempts aren’t kosher. I’m cool with that.
Put another way, of course the Fifth forbids torture to obtain confession, we can be assured of that because the Framers forbid cruelty even to the convicted! Given the other protections accorded, we are entirely safe in assuming that they intend those same protections to apply to the un-convicted as well! Tres duh, mais non?
And if an inference and interpretation can be legitimate (and we agree that it can, apparently), that means another inference, interpretation, and/or penumbra might be legitimate as well. The “right to privacy”, for instance. The right to total control over one’s own body. Stuff like that.
The snapper being: if a man of whatever scholarly credentials should state that an absence of an explicit protection means no such protection exists in the Constitution…such a man is a poopy-head. Because interpretation of umbras and emanations is a part of the accepted framework of Constitutional law, its far too late to call “Kings X”.
What part of that puts a burr under your saddle?
Post 338:
What is this “go the extra mile” stuff? Either they intended the 8th to extend beyond convicted criminals or they didn’t. Point being, that you’re not allowed to get even near “cruel and unusual” per the 5th, for those not convicted. It’s not an issue, because you can’t even lay your hands on the guy for not answering a question. (Unless you happened to have been a state cop back before the 5th and 8th were incorporated-- then you could do whatever your state allowed.)
John, I swear to you on the soul of Eugene V. Debs, I have no idea whats bugging you about that. Gaze into these big browns and behold the vast pools of innocence. I fear to explain because the explanation already offered is so flat-footed obvious I can only make it more unclear.
Lets try it this way. Lets assume the Framers (and Jefferson, by c-mail…) were of one mind on the subject of torture and cruelty, they were agin it. By “extra mile”, I mean to suggest that they went to the trouble to make it clear that such mistreatment was forbidden even to those convicted of crimes! The aforementioned “least deserving”. Even they are safe from cruelty. In addition to everybody else.
Now, it makes no sense at all to infer that they meant this as a special blessing to the convicted criminal that was otherwise unavailable. It means that the Framers despised cruelty so much that they forbade its application even to criminals. It goes the “extra mile” to include those who might otherwise not be included, having lost other civil rights as a result of their conviction of a crime: their liberty, first and foremost.
They don’t mean to extend from convicted criminals to the rest of us, they mean to extend from us to them! To include those who might otherwise not be included.
I’d like to tell you about a case called Church of the Holy Trinity v. United States.
It involved a law passed by Congress. The law said: “…it shall be unlawful for any person, company, partnership, or corporation, in any manner whatsoever, to prepay the transportation, or in any way assist or encourage the importation or migration, of any alien or aliens, any foreigner or foreigners, into the United States, its territories, or the District of Columbia under contract or agreement, parol or special, express or implied, made previous to the importation or migration of such alien or aliens, foreigner or foreigners, to perform labor or service of any kind in the United States, its territories, or the District of Columbia.” Another section of the law made some exceptions for professional actors, artists, lecturers, singers, and domestic servants. There was no exception for ministers.
Holy Trinity Church, an Episcopal Church in New York, hired one E. Walpole Warren, an Episcopal minister in England, to come to New York to serve as their rector.
In so doign an act that was plainly prohibted by law, the case against them was made, and appealed, ultimately to the Supreme Court.
The Court said that common sense must be the overriding concern of the law. The pointed out:
Good so far, right?
Then the Court says that common sense tells us that Congress could not possibly have meant to prohibit the Episcopal Church from importing an alien to serve as rector. Because:
See what they did there?
They blatantly ignored the clear text of the law Congress passed, because “this is a Christian nation” and no Christian nation could ever be imagined to intend the law that was written.
I’m assuming you don’t agree that we should judge the laws based on the fact that we’re a Christian nation?
But what they did is what you want them to do – to ignore the written text in favor of the underlying spirit… but the case of Holy Trinity Church v. US shows what can happen if the judges have different ideas about the underlying spirit than you do.