Talk:Eighth Amendment to the United States Constitution
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[edit] Punishments completely forbidden
There is a segment here that reads:
- "Because it is the needless infliction of pain, torture is prohibited by the Eighth Amendment.[citation needed]"
This is a hard one to edit, but also hard to remove. My best attempt at an idea was to change "Because it is" to "If it were legally shown to be" or something indicating the need for a Judicial test-case relevant here..., but that sounded as if it would lack neutrality, somehow suggesting that the Eighth is ineffectual prohibit torture, or suggesting some non-neutral view of the Eight as facilitating torture somehow.
Although it does not literally prohibit torture outright, one might assume that the spirit of the amendment targets torture-like behaviour. However, like most constitutional law, it is open to interpretation and/or change in interpretation, something that many supreme courts, including the US supreme court, can do.
This is highlighted with Antonin Scalia's recent TV interview, where he illustrates that the general or majority view (elementary school teaching, for instance) that the spirit enshrined in the Eighth prohibits torture is, unfortunately, irrelevant to the Judicial interpretation of the Eighth. His point appears to be that "punishment" may not necessarily be torture, not because of any pain/psychological harm/etc.etc. involved in torture, but because punishment as it is often understood, suggests a Lawful Judgment that calls for a Punishment, i.e. the law cannot punish you in a cruel or unusual way. Although punishment has been understood by previous US supreme courts in previous cases to be far wider an encompassing term than Scalia's particular opinion, his views do suggest that a Bill specifying the fact outright may be appropriate, as a conservative supreme Judiciary would be unlikely to choose (it is their choice to hear cases, after all) to touch this issue with a 10' or more pole, so to speak.
Given the temporal flexibility of definition and interpretation of this amendment, and given that (to the best of my knowledge, feel free to enlighten me) the interpretation of this amendment in circumstances particular to torture by/through US citizens and/or agents of state has yet to be clearly defined, .....
....how are we to rewrite the original sentence without suggesting one way or the other as to it's applicability in cases of torture? We can't really say that it _does_ prohibit torture, but neither can we really say that it _does not_ prohibit torture. And when (as I have tried) we attempt to write it as an "IF", it unnecessarily becomes a "suspicious" sentence, indicating some subversive intent of the editor, one way or the other...
Can someone clear this up? It doesn't require constitutional interpretation, just a good linguistic understanding of how to properly reform this sentence to make it more ambiguous.
In this case, the ambiguous needs to be... well... ambiguous, really... In any case, the current sentence really needs work.
'nuff said. I write too much. Wernhervonbraun (talk) 14:50, 4 May 2008 (UTC)
[edit] Capital punishment suspension time
I noticed that this page says capital punishment was "effectively suspended" between 1967 and 1976. From what I gather it was actually from 1973 (or 1972, after Furman v. Georgia) but I'm not an expert on this. Is a change warranted? (I did a change but reverted since I wasn't sure.)
Why no history on the amendment itself? Who wrote it? What previous law(s) was it based on? What were the arguments surrounding its passage? More info would be nice.Tubbyty 19:48, 1 March 2006 (UTC)
- Check the United States Bill of Rights article. James Madison drafted the article that was adopted as the Eighth Amendment. It was ratified in 1791 with the rest of the Bill of Rights, and so has been part of the US Constitution for all but the first few years of its existence. Schoop 19:46, 27 September 2007 (UTC)
[edit] Excessive fines
Has any case ever dealt with the "excessive fines" clause? -- 85.179.164.64 (talk) 00:09, 8 January 2008 (UTC)
