Faculty Journal Articles and Book Chapters
ORCID (Links to author’s additional scholarship at ORCID.org)
Abstract
The Eighth Amendment Punishments Clause is in jeopardy. The constitutionality of punishments is usually judged according to the “evolving standards of decency that mark the progress of a maturing society.” And in evaluating these standards, the Court has traditionally looked to changing societal views on punishment. This is a living constitution approach to interpretation, and the Eighth Amendment is the only area of law in which the Court has consistently and explicitly ap-plied such an approach. But a living constitution approach is diametrically opposed to the current Court’s focus on originalism. This is the first originalist Court in history, and the Court has not been shy about wielding its originalist wand. Further, the current Court is quite willing to set aside decades worth of entrenched precedent, as it did in Dobbs—its recent abortion decision. The Court’s originalist approach, paired with its disrespect for precedent, puts the Eighth Amendment living constitution approach examining the evolving standards of decency on very shaky ground. Even though the Court has long adhered to this test, a willingness to set aside precedent and put an originalist approach in its place seems to be in the works. Such a turn toward originalism would push us back to the barbaric punishments available at the time of the Founding and reverse current Eighth Amendment bans that prevent states from executing juveniles and intellectually disabled people. Such a death of the evolving standards of decency would also render the Eighth Amendment a dead letter.
Publication Title
Florida State University Law Review
Document Type
Article
Keywords
Eighth Amendment, cruel and unusual, punishment, originalism, precedent, stare decisis, Supreme Court, torture
Recommended Citation
Meghan J. Ryan, The Death of the Evolving Standards of Decency, 51 Fla. St. U. L. Rev. 255 (2024)
Included in
Constitutional Law Commons, Criminal Law Commons, Criminal Procedure Commons, State and Local Government Law Commons
