34) It seems that the Framers imported the language of the Amendment from the 1776 Virginia Declaration of Rights, which similarly provides "[t]hat excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
N]or cruel and unusual punishments inflicted" (223) could be interpreted to mean that only punishments that are both cruel and unusual are prohibited or that both cruel punishments as well as unusual punishments are proscribed.
For example, while the Virginia Declaration of Rights provided "[t]hat excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted," (241) the drafters of the Maryland Constitution opted to use the term "or" instead of "and;" therefore, the corresponding Maryland edict provided "[t]hat excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted, by the Courts of Law.
The Sixth Amendment's provision is an affirmative guarantee, while the Eighth Amendment's prohibition employs a negative to limit the phrase, providing "nor cruel and unusual punishments inflicted.
Further, measuring unusualness by requiring that a punishment be usually available, even if it is not in regular use, will perhaps guard against certain defendants being treated differently for reasons unrelated to the crime for which they are being punished--perhaps one of the concerns underlying the prohibition of cruel and unusual punishments in the English Bill of Rights.
The Eighth Amendment's history invites inquiry as to what its language of excessive bail, excessive fines, and cruel and unusual punishments meant to the English.
The historic prohibition of cruel and unusual punishments never invited a general inquiry into how governments around the globe were treating people.
We may well doubt the right to establish the whipping-post and the pillory in States where they were never recognized as instruments of punishment, or in States whose constitutions, revised since public opinion had banished them, had forbidden cruel and unusual punishments.
New York's Constitution did not proscribe cruel and unusual punishments until 1846, although the proscription had been included in the state's 1787 statutory bill of rights.
address how the Cruel and Unusual Punishments Clause operated in
Yet perhaps the prohibition of cruel and unusual punishments that
punishment, however, the Cruel and Unusual Punishments Clause contains
were not required by the prohibition of cruel and unusual punishments.
prohibition of excessive fines and cruel and unusual punishments.
399 (1986), in which he describes essentially universal agreement "that the Eighth Amendment's ban on cruel and unusual punishment
embraces, at a minimum, those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted.