Time for a common-person approach to the Eighth Amendment

It’s sentencing day over at The Volokh Conspiracy: Eugene Volokh riffs here on the extreme sodomy sentence in Georgia (discussed here and with comments ablazehere on Judge Fogel’s ruling essentially declaring California’s administration of lethal injection unconstitutional (discussed here and here).  Both posts make great reads, and they spotlight the ugliness of modern terribly Eighth Amendment doctrine.

The Eighth Amendment is one of the very hardest of constitutional provisions to operationalize no matter what interpretive theory one embraces.  Justice Scalia’s purported originalism often breaks down when asked about severe physical punishments common at the Founding; but fans of a living Constitution like Justices Brennan and Marshall seemed most like philosopher kings when when opining on the limits imposed by the Eighth Amendment.

Here is the full text of the Eighth Amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

I am not sure I have a fully evolved and sound-tight approach to this provision.  But I think a common-person test ought to be of some use.  And I have to think common persons would surely view imprisoning a Georgia teenager for 10 years for consensual oral sex as far more “cruel and unusual” than imperfectly administering a lethal injection to a condemned murderer in California. 

Sadly, common persons do not interpret the Eighth Amendment, lawyers and judges do.  Today that means the Georgia teenager must spend a decade behind bars, while California murderers get an indefinite lease on life (to be served on death row).  Maybe my old law-school classmate Adrian Vermeule is on to something when advocating for lay Justices.