Starter 2: Trop v. Dulles

In this case, the Court held that stripping someone of U.S. citizenship as a punishment for desertion was "cruel and unusual punishment" because the punishment was out of proportion to the crime. Chief Justice Warren drew attention to the flexibility of the words "cruel and unusual."

From the opinion of the Court by Chief Justice Earl Warren:

The exact scope of the constitutional phrase "cruel and unusual" has not been detailed by this Court. But the basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice. The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688, and the principle it represents can be traced back to the Magna Carta. The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect. This Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, this is not surprising. But when the Court was confronted with a punishment of twelve years in irons at hard and painful labor imposed for the crime of falsifying public records, it did not hesitate to declare that the penalty was cruel in its excessiveness and unusual in its character. Weems v. United States, 217 U.S. 349. The Court recognized in that case that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.

Focus Questions

1. When considering "evolving standards of decency" in the context of the Eighth Amendment's prohibition against cruel and unusual punishment the Supreme Court has generally looked to the trends of state legislatures and the practices of states to determine a national consensus. What are the advantages and disadvantages of considering each of these factors?

2. What other factors might we use to determine the meaning of the words "cruel and unusual punishment" today?

3. Some legal scholars and commentators disagree with the Court's framework of reviewing "the evolving standards of decency that mark the progress of a maturing society" in considering the application of the death penalty. They believe that the Constitution is static and should be interpreted in accordance with the original intent of the drafters. What arguments do you think may be made to support their position? Do you agree?