Jon makes a fair point about my Eighth Amendment argument this afternoon. The Supreme Court related in Ingraham v. Wright, 430 U.S. 651, 664 (1977), that “[a]n examination of the history of the [Eighth] Amendment and the decisions of this Court construing the proscription against cruel and unusual punishment confirms that it was designed to protect those convicted of crimes. We adhere to this longstanding limitation.” Terri has obviously not been convicted of a crime, even though I believe — elevating substance over form — that she has effectively been sentenced by a court to a grisly death that would not be permitted under the Eighth Amendment if a state tried to do it to a capital defendant.

Given that Terri has committed no crime at all and the findings in her civil trial were made on weaker evidentiary standards (“preponderance of” and “clear and convincing” evidence) than the “beyond a reasonable doubt” standard that capital defendants get the advantage of, it seems the height of absurdity that a criminal defendant should get the benefit of the Eighth Amendment from a court but a civil litigant such as Terri should not. But on the other hand, extending the Eighth Amendment out of the criminal context would, as Jon says, run afoul of originalist principles.

Perhaps more importantly, it would invite the extension of the Eighth Amendment to other contexts — such as custody and interrogation by the military in wartime. As I’ve argued in that other context, it is the Supreme Court’s limitation of the Eighth Amendment to criminal judicial proceedings that Congress relied on in limiting our country’s acceptance of the UN Convention Against Torture and Cruel, Inhuman and Degrading Treatment. (That is, the sub-torture hijinks that happened at Abu Ghraib do not violate the “Cruel, Inhuman and Degrading Treatment” provisions of that treaty because Congress limited U.S. application of that provision to the 5th, 8th and 14th amendments, which generally apply to criminal judicial proceedings, not military detentions).

It would have been better for me to argue that Eighth Amendment principles inform the due process analysis than to have taken the next step of claiming that the Eighth Amendment had itself been violated. This may be a distinction without much of a difference, but it would have been more accurate than what I contended.