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Gray & Olive on Graham v. Florida, Moral Realism, and Originalism

By Lawrence Solum

David C. Gray and Jessica M Olive (University of Maryland - School of Law and University of Maryland School of Law) have posted A Modest Appeal for Decent Respect (Federal Sentencing Reporter, Vol. 23, No. 1, p. 72, October 2010) on SSRN. Here is the abstract:

In Graham v. Florida, the Supreme Court held that the Eighth Amendment prohibits imposing a sentence of life in prison without the possibility of release for nonhomicide crimes if the perpetrator was under the age of eighteen at the time of his offense. In so holding, Justice Kennedy cited foreign and international law to confirm the Court?s independent judgment. In his dissent, Justice Thomas recited now-familiar objections to the Court?s reliance on these sources. Those objections are grounded in his originalist jurisprudence. In this short invited essay, which expands on prior work, we argue that Justice Thomas should abandon these objections. That is because the Eighth Amendment?s prohibition on cruel and unusual punishment incorporates objective moral constraints rather than common public views held by Americans in 1792. While we acknowledge that courts asked to determine these objective constraints face a significant epistemic challenge. However, we suggest that the most reliable approach lies not with historical inquiry but with a method akin to that endorsed by Jürgen Habermas?s discourse ethics. In particular, to the extent that foreign, transnational, and international law addressing the cruelty of various punishment practices is the result of an inclusive process of open debate among those with an interest in the answer, we think that domestic courts are well-advised to follow Justice Kennedy?s example.

And from the paper:

Late-eighteenth- century Americans were moral realists and believers in the natural law for whom these aspirations were attached to fixed goals in the form of objective moral truths.9

Although much of the Constitution is devoted to archi- tectural or utilitarian tasks, at several crucial points the Framers referenced objective moral constraints. Among these constraints is the Eighth Amendment?s prohibition on cruel and unusual punishment. Read for its original public meaning, that phrase excludes from public policy punishments that are cruel and unusual. Those who lived in the United States in 1792 surely had views on such mat- ters. However, if the originalists? commitment to read the text for its original public meaning is taken seriously, then it would be a mistake to promote their views to the status of objective truth.10 At best, investigating their views might show what the drafters of the text intended to pro- hibit. However, for originalists, original meaning, not original intent, is the proper object of judicial inquiry.11

Regardless of their personal views on moral matters, be they Platonists or Rortian ironists, judges who read the Constitution for its original public meaning are committed to the view that the Eighth Amendment, read for its original public meaning, requires them to declare unconstitutional punishments that are cruel and unusual.

A very interesting & very short paper. Recommended.

If I might make a comment, as I read the paper is at least one gap in the argument.  First, accepting the premise, that moral realism prevailed at the time the cruel and unusual punishment clause was adopted, the question remains whether it is true.  If the clause attempts to refer to real moral kinds, but then the approach that Gray and Olive recommend (to identify those punishments that can be subsumed under the relevant moral kinds) is simply impossible.  But moral realism is controversial.  I suspect that some originalists may reject moral realism in any form and other originalists may be some species of moral realist but reject the idea that there are moral or functional kinds.

Full post as published by Legal Theory Blog on October 01, 2010 (boomark / email).