April 16, 2008

posted by Alice Ristroph

The question, of course, is "effective against what?" If the intention of the 8th Amendment is, as Justice Thomas claims, to prevent use of torturous punishments such as drawing and quartering, then the 8th Amendment has been rather effective.

To claim the 8th Amendment is "ineffective" is question begging, because it assumes what the Amendment is supposed to protect against, which is the crux of the issue under examination.

In general, I suspect that the Eighth Amendment will remain pretty ineffective if its protections turn on judicial constructions of the state’s punitive intent, penological purposes, and other good intentions.

This may be true, but is that necessarily a bad thing, and does that necessarily say anything about whether Justice Thomas's views are right or wrong?

We also have the Third Amendment, but the Supreme Court has thus far resisted the urge to interpret it expansively so that it continues to prohibit things that the government is actually trying to do.

Admittedly, the Third Amendment is more of a rule, while the Eighth Amendment contains a standard, but I think there is a general notion that the Eighth Amendment isn't working properly if it doesn't continue to generate friction.

You close by asking, "Why should the permissibility of state violence turn on the state’s intentions?" By asking the question in this way, you hint at your own answer--the permissibility should not turn on the state's intentions.

At first blush, your question (and implied answer) seem to contradict what Justice Thomas has written in Baze. But I think Justice Thomas's opinion is actually consistent with that answer. Justice Thomas never claims that intentions *should* justify violence. Instead, he provides his view that, for purposes of the Eighth Amendment, intentions *do* (or can) justify violence. Under Justice Thomas's reading of the Amendment, the normative/policy decision was made in 1791; regardless of whether that decision was correct or optimal, it was made, and we must live with it.

Perhaps a better challenge to Justice Thomas would be based on constitutional theory or history. One could, for example, question his underlying assumption that the framers of the Eighth Amendment bound us to their normative judgment; perhaps they envisioned that future generations would make new decisions on what forms of punishment are permissible. On this line of reasoning, Justice Thomas is not wrong for telling us that intentions should justify state violence (he does not make this claim); rather, he is incorrect for omitting that inquiry as irrelevant. Alternatively, one could challenge his historical account. Perhaps the framers envisioned the Eighth Amendment as barring some punishments that did *not* involve the intentional infliction of pain. In that case, Justice Thomas might be correct in his theory of the Eighth Amendment, but incorrect about the normative judgment that was actually made.

Moral philosophers — and many legal doctrines — tend to reject the notion that the permissibility of an act turns on the actor’s good intentions. Why should the permissibility of state violence turn on the state’s intentions?

Is the question permissibility or culpability? It seems to me that an actor's state of mind is usually the foundational question relating to her culpability. Certainly 1L criminal law classes spend more time on mens rea than any other question, generally thought to reflect the importance of state of mind.

Thanks to all for the comments. I'd still love to hear from anyone with theories as to why state intentions should matter to permissibility!

As Orin points out, it's a pretty standard view that intentions matter to assessments of culpability. But I don't think anyone views Eighth Amendment jurisprudence as an effort to judge the "culpability of the state" (if that concept even makes sense). I'm asking about permissibility -- seems to me that when a court says an act is constitutional, it's saying the act is permissible under the constitution, and when a court declares an act unconstitutional, it's saying the act is not permissible under the constitution.

Why would intention be irrelevant to permissibility? To give just a couple of basic examples, a consequentialist might say that the tangible effects of action matter, not the actor's intentions; a deontologist might say that our duties to other people are hardly satisfied simply by meaning well. (Either might also emphasize that intentions are very easily misrepresented.) For some of the classic arguments in moral philosophy, see Judith Jarvis Thomson's articles on self-defense and physician-assisted suicide, or Tim Scanlon's article "Intentions and Permissibility," or criticisms of the doctrine of double effect. In a recent paper called "Intending, Foreseeing, and the State" (published in Legal Theory), David Enoch argues that many of the reasons to think intentions are irrelevant to permissibility apply with special force in the context of state action.

Anyway, I discuss this highbrow literature in my State Intentions article, but I also like a simple lowbrow approach: why do we say "the road to hell is paved with good intentions"? Does this capture any interesting insight? Note that the phrase claims much more than that good intentions without good action are morally indifferent. My own suspicion is that we tend to emphasize good intentions precisely when our actions are most awful -- which is why good intentions pave the road to you-know-where.

I'm asking about permissibility -- seems to me that when a court says an act is constitutional, it's saying the act is permissible under the constitution, and when a court declares an act unconstitutional, it's saying the act is not permissible under the constitution.

If you cannot be held culpable for it, then it is permitted.