A few days ago, the Court gave an opinion on whether a State program of capital punishment was unconstitutionally cruel and unusual. Prior to that, the Court listened to arguments about a District’s gun regulations that may, or may not, run afoul of the second amendment. I thought it’d be fun to think aloud about how two amendments written specifically about the Federal government came to be relevant to state governments.
The Constitution demands that states can’t inflict cruel and unusual punishment. I only know that, of course, through the hearsay of the Court’s telling me what the Constitution says (which is fine, being that the Constitution is happily not a precise instrument). The Constitution unambiguously tells the Federal government to stay away from cruel and unusual punishment. It ambiguously tells the states to respect the basic rights of all citizens, to refrain from arbitrary deprivations, and apply laws equally. So:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
and that
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Before that 14th amendment, the latter here, a person had no reason to talk about the former 8th amendment unless it was the federal Congress, to whom the words were addressed, doing the inflicting, imposing, or requiring. The first ten amendments, limiting he power of the new federal government, were ratified in 1791. Three score and seventeen years later, our Congress brought forth some hefty structural changes to the Constitution, with the proposition that those amendments could limit state powers.
