05 August, 2008

The Candidates and the Eighth Amendment

This is the ninth post in an ongoing series regarding the major Presidential candidates and their views on civil liberties.

This post is about Senator John McCain's (R-AZ) and Senator Barack Obama's (D-IL) views pertaining to the Eighth Amendment of the Bill of Rights. This amendment follows up on the Fifth, Sixth, and Seventh Amendment protections regarding courts of law and details protections dealing with punishments and incarcerations.

Here's the text:

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

Unlike many others, this one is nice and short and to the point. However, what constitutes "excessive"? What constitutes "cruel and unusual"? Without giving specifics, our founders left that (unintentionally, I believe) for the courts to decide.

So, before we can begin, we should look at defining some of these terms. Many of all political persuasions regard capital punishment as "cruel and unusual", and there's no doubt that one civil liberty is being revoked by capital punishment, the right to live. However, in over two centuries of cases, the U.S. Supreme Court has continually regarded this belief as inaccurate. Also, given that capital punishment is specifically mentioned in the Fifth Amendment, it's hard to believe that the founding fathers felt that capital punishment would constitute cruel and unusual.

It seems safe to say that torture would be classified as "cruel and unusual".

But, what about "excessive" fines and/or bail? How shall we define that? I don't know the answer to that. The only thing I can say as an absolute is that if you're in favor of "no limits" on fines and/or bail, then that seems to be allowing "excessive" ones as well.

Armed with our definitions, let's look at the candidates.

As usual, we'll start with Barack Obama.

The only thing I can find regarding excessive fines and/or bail is his support for the trial lawyers in civil cases. Since the Eighth Amendment is not specific as to whether it's discussing criminal or civil trials, I have to conclude that it applies to both. So, he appears to be opposed to "tort reform" and limiting the size of civil lawsuits.

Regarding, cruel and unusual punishment, he did come out opposed to the Supreme Court's ruling in Kennedy v. Louisiana, which stated that child rapists may not be executed in cases where the victim survives. While this has brought out angry criticism from the left, and many point to the Eighth Amendment, it fails the smell test for me. If the founders had wanted to deny capital punishment, they would've spelled it out.

In 2006, he opposed S. 3930, which approved US torture of detainees. However, this appears to be his only statement on the subject.

That's all I've got. So, let's look at John McCain.

I'm in a similar position regarding excessive fines and/or bail with McCain. In contrast, he has usually supported "tort reform", but not always.

He also opposed the decision in Kennedy v. Louisiana, but again, I question the relevance.

And he's been an outspoken critic of torture during his entire Senate career, with few compromises (not none) on this stance.

So, what do we have? Limited exposure from either camp, except for McCain on torture. But, there's enough there to drop both grades a little.


Obama: C. I can't give him any higher because of his few statements, and his stances on "tort reform"

McCain: B. Without his flip earlier this year with regard to torture and the CIA, this would've been a B+. He gets high marks (generally) on limiting fines and on torture. His transgressions here are enough to keep his grade down somewhat.

Eighth Amendment: Advantage McCain

Results so far:

Obama McCain
First Amendment* F
Second Amendment D- C-
Third Amendment B B
Fourth Amendment D+ D+
Fifth Amendment D+ B-
Sixth Amendment B B
Seventh Amendment C C
Eighth Amendment C B

* Obama's First Amendment grade lowered as documented in this post.

UPDATE: Obama's First Amendment grade lowered to F as documented in this post.

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