Podcasts | Constitutionally Speaking

Episode 40: The Eighth Amendment: A Cruel and Unusual Episode

(Rick Wilking/Reuters)

This week the guys dig into the Eight Amendment’s prohibitions on excessive fines and bail, and on cruel or unusual punishments.

Cribbed largely from the English Bill of Rights, the structure and language of the amendment internally differs somewhat from that of other amendments, in large part due to its distinctive origins. While several other passages of the Bill of Rights derive clearly from their English forebears, none does so quite so directly as the Eighth. Nonetheless, the Eight Amendment fits well within the overall trajectory of the jury amendments, especially in terms of preventing the criminalizing of normal politics.

Jay and Luke talk about what the Framers would have understood these passages to mean, especially with respect to the all-important underlying ideas of republicanism at work in post-Revolutionary America.

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