The New Constitution: Amendment XVII – cruel and unusual punishment

The New Constitution

Amendment XVII

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


Another one today that represents no change, although I’m very open to discussion on the term “cruel and unusual punishment.” This has historically been the center of any number of debates, and it may be time to articulate the concept in less ambiguous language.



Index: The New Constitution Series

5 replies »

  1. Sam, you never answered an underlying question that Brian and I posed. Is the New Constitution intended to mesh with our existing body of law, and any conflicts between the two to be adjudicated thereafter, or are we throwing away the book and starting fresh?

    If the former then black letter law establishes the reasonable person to be the judge of what is and is not cruel and/or unusual. If the latter then it’s going to be a wild and woolly world for awhile until we set the tactical rules for implementation.

  2. Sam, here’s another assumption on my part that may be wrong. The New Constitution is actually a New Bill of Rights composed of mostly new amendments that would be adjunct to our original Constitution?

    Law is a language that our Constitution is full of. I’m all for affirming universal human rights and inventing new better laws to enforce that, but at the least we need to carry common law forward so we’ve a got foundation to stand on.

    “Starting fresh” as in throwing out the baby, the bath water, and all the law books sounds like the Bedlam Suite at the Tower of Babylon Hotel to me.

    I’m probably confused, square me away if you will.

    • The conceit is “what ought the Bill of Rights look like if we were writing it today?” Considering that some of the original amendments survive untouched and several others are retained and strengthened, I don’t see it as throwing out anything. And I see no need to start over from scratch. The founders had some damned good ideas and much of their wisdom continues to serve us well today.