The First Freedoms
The Privacy Amendments
The 5th Amendment
The 6th Amendment
Civil Trials
The Interpretive Rules

8th Amendment

The Addition of the 8th Amendment into the Bill of Rights

Ratifying Debates

It is likely that the 8th Amendment’s prohibition of “cruel and unusual punishments” was originally intended to restrict all three branches of government from inflicting either arbitrary or sadistic punishments. The need for this provision came up in the ratifying debates in both Massachusetts and Virginia, and in both cases the Congress was singled out as the body that most needed to be restrained, and in both cases certain punishments were deemed beyond the pale. Such restraint had already been imposed on some state legislatures. Patrick Henry praised the authors of Virginia’s Declaration of Rights because “they would not admit of tortures.” George Mason concurred, saying that Virginia’s “bill of rights provided that no cruel and unusual punishments shall be inflicted; therefore, torture was included in the prohibition.” And later, Joseph Story, writing his Commentaries on the Constitution in 1833, explained that “the clause holds out a wise admonition to all departments of the National Government, to warn them against such violent proceedings, and to instruct them in the duties of clemency and moderation. A barrier is thus interposed against the use of those vindictive and atrocious punishments.”

Three states had recommended adding what would become the 8th Amendment, each one adopting the language from the English Bill of Rights. Madison changed the weaker “ought not” to an authoritative “shall not,” but otherwise the language went unchanged throughout the process of amendment. 

There are several key questions to be addressed surrounding the application and interpretation of the 8th Amendment. For example, to what standard should Congress be held when determining when a punishment was “cruel and unusual”? And when assessing “excessive bail,” is this clause only meant to restrict what judges can assess as bail in individual cases (which would require them to abide by standards that Congress set)? Or was it also meant to limit congressional acts regulating which suspects can be released on bail (which would require judges to set limits to what Congress can do)? Moreover, who are to be the judges of these clauses? Since judges normally set the amount of bail, who polices whom? These are the sorts of questions that would plague the interpretations of this clause throughout its history.