Typos in the Constitution

Cruel and/or unusual punishment

The following is an excerpt from a speech I would have given to the “True Independence Day Club” on July 3, 1996 if they had asked me.

“Thank you for asking me here today, a special day in our history: the two hundredth and twentieth anniversary of the founding of our country. Those were perilous times. But the Declaration of Independence was seen even in those days to have special meaning. John Adams, who was in charge of the committee writing the Declaration, was a visionary. He said that he saw the country celebrating every year the anniversary of its founding on July third with fireworks and fairs and other celebrations. As you all know, the date was moved to the Fourth of July because of difficulties copying the manuscript. It is about such matters that I wish to talk to you today.

The Declaration, as everyone knows, was written at Adam’s request by Thomas Jefferson, with some editorial comments by Benjamin Franklin. Among other suggestions, Franklin advised Jefferson to take out some references that could be construed as referring to God– as it “smacked too much of the pulpit.” Jefferson acquiesced readily, although he was very proud of his work. He was exercised when the constitutional convention, acting as a committee of the whole, cut it into pieces, just as if they knew as much about writing as Jefferson did.

Because the Declaration was intended to be circulated throughout the colonies for political purposes,  many copies were made hurriedly; and they do not agree entirely. Of course not. There was no such thing as a copying machine in those days. People—fallible people—copied the Declaration of Independence and all those other documents of national significance which we hold sacred. And they made mistakes. Who knows how many mistakes?

I wish to draw your attention to a different document, the Constitution of the United States, which was drawn up years later because there was too much bickering under the confederacy by the representatives of the states when they entered into congress. They could not agree on simple matters, such as spending money on infrastructure or on the need to pass taxes—the kind of thing that could not happen under our current more advanced form of government.

When the Founding Fathers gathered in Philadelphia to achieve that purpose, they were all struck by the solemnity of the occasion. Benjamin Franklin, who could tolerate the heat and smells of Philadelphia better than the others—since he lived there—thought to start the convocation with a prayer, an idea he abandoned when no one was inclined to second the motion. Soon the very imposing figure of George Washington was chosen to chair the proceedings. During the days he presided, he made such a good impression on everyone that everyone realized he would be chosen for the first President. Alexander Hamilton, carried away by Washington’s regal bearing, made a motion that he be made “President for Life.”

Patrick Henry, who was no friend of the Constitution, made a speech in Virginia about this matter, declaiming, “Give him life, or give him death!” a comment that made no sense but was admired, nevertheless, because he was such a fine speaker.

That magical, but very humid, summer wore on as the congregants dealt one after the other with momentous issues. In a clever compromise, they chose to count Negro slaves as three-fifths of a person, a subtle balance between those who thought they were two-fifths of a person and a second, more conservative, faction who thought they deserved to be counted as four-fifths of a person. These weighty matters occupied them so completely that they only got around to a bill of rights a number of years later.

It is the eighth amendment to the constitution which I wish to discuss this evening. It is said to bar “cruel and unusual punishment.” And it barred torture, which is the reason why anyone inclined to torture someone nowadays is well-advised to get a prior written consent, our litigious society being what it is. Some of the copies of the Constitution are so poorly transcribed that it seems possible that what the amendment barred was “cruel or unusual punishment. At least that was what was claimed by a suspicious looking gentleman who was hawking copies of the Constitution for a half-dollar apiece. One smudged copy seemed to say “cruel and/or unusual punishment.” This is a matter of some significance since Justice Antonin Scalia has made quite a point recently of the importance of interpreting the constitution in terms of “original intent.” We can hardly follow the intent of our Founding Fathers without knowing exactly what they said.

There is an obvious difference between “cruel and unusual punishment” and “cruel or unusual punishment.” The first says that it is unconstitutional to make legal a punishment that is both cruel and unusual. The second says either cruel punishment or unusual punishment is unconstitutional. In other words, in the first formulation (“and”) there is nothing in the constitutions that forbids cruel—even extremely cruel punishment–unless it is also unusual. Somehow, the public and the media have gotten hold of one of the copies that say “cruel or unusual,” and, consequently, they think that cruelty, at least extreme cruelty—at least really crazy, wild cruelty—is forbidden by the constitution. According to the other formulation, which, unfortunately, has come into the possession of the Supreme Court, it says no such thing.

For example, suppose one of the states should pass a law saying that red-hot needles will be inserted into the abdomen of convicted shop-lifters (to teach them a lesson). That act would be considered unconstitutional only because it would be a novel and unusual punishment. If such a punishment had come into popular usage around the time of the revolution, Justice Scalia, and even some of the more liberal judges, would regard it as constitutional. Cruelty, per se, (or stupidity) is not unconstitutional. Therefore, incarcerating prisoners in solitary confinement for no good reason, for years on end, is tolerated as constitutional. Similarly, a repeat offender who has been discovered carrying around Marijuana and is, therefore, sentenced to life in prison, is serving a constitutional sentence. The cruelty inherent In working on a chain gang, year after year, in the heat and snow, is not unconstitutional.

In the matter of capital punishment, the consequences are stark. Hanging, which I think most people regard as being, in some respects at least, cruel, is constitutional. We have been hanging people for ages. Extra-judicial hangings (lynching) have never been regarded as proper—but only because it violates the “due process” clause. If a jury had been assembled to ratify the person’s guilt, that lynching would have been constitutional. Similarly, be-headings, poisonings, and death by stoning, have been around since biblical times. Electrocution and lethal injections, however, I think are suspect since they are relatively modern. But then, after some usage, they too have become “usual” punishments. I would submit that all of these have certain elements of cruelty. Even the use of the guillotine—which was invented by Dr. Guillotine precisely with the intention of causing less emotional and physical distress, is, in fact, very upsetting to the condemned criminal, as anyone with any imagination can see. For some reason, the guillotine has never gathered any popularity in this county, and for that reason may be unconstitutional.

But the Supreme Court has not always taken the phrase “cruel and unusual” to be simply and literally true. In a manner quite contrary to Justice Scalia’s idea of “original intent,” the court has decided that people of limited capacity– children and the mentally retarded–although deserving of punishment for crimes they committed, should not be subject to the death penalty. The court decided, arbitrarily perhaps, that such a practice would be “cruel and unusual.” In recent years, they have gone further and looked askance at the practice of executing criminals who are sick. If someone is depressed, for example, and, therefore, unable to appreciate his circumstances fully, he has to be made well; and then he can be executed. If the prospect of being killed depresses him once more, his execution can be put off again until he feels better. First the condemned must be made well, then they can be executed. Also some executions are botched so regularly—for example, someone who has to be hung for a half-hour or so before he dies and another person who has to be electrocuted two or three times, steaming and giving off smoke before dying—that these methods may have become “cruel and unusual.” I would argue that this is primarily an aesthetic consideration.

So, “cruel and unusual” has come to mean also, “not excessive” and “not too upsetting to watch.”

One wonders what American jurisprudence would have looked like if the Supreme Court had been handed one of the copies of the eighth amendment that said “cruel or unusual.” The consequences of their having been given the copy that said “cruel and/or unusual” are too horrible to contemplate.” (c) Fredric Neuman