Most people in the West agree that a human should not be subject to cruel and unusual punishment, as maintained by our eighth amendment and supported by an overwhelming number of Americans. But is it possible that the process of defining “cruel and unusual” has done Americans more harm than good? To understand whether or not this is the case, it is imperative to consider the concept of war, the purpose of law, and then eventually examine the unalienable rights which all human beings possess.
John Locke once described man’s natural rights as being the right to work for his food, to enjoy the products of his labor, and to live within the positive laws of Scripture (Second Treatise, sects 135 and 136). But since man cannot survive without the right to property and to secure the benefits of his labor, an assault on these rights is an assault on survival, an act Locke recognized as a declaration of war. He wrote of the matter,
he who attempts to get another man into his absolute power, does thereby put himself into a state of war with him; it being to be understood as a declaration of a design upon his life: for I have reason to conclude, that he who would get me into his power without my consent, would use me as he pleased when he had got me there, and destroy me too when he had a fancy to it
And in defense of every man’s God given rights,
one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion; because such men are not under the ties of the commonlaw of reason, have no other rule, but that of force and violence, and so may be treated as beasts of prey.
Human liberty and peace, then, are concepts enshrined in nothing less noble than the spilled blood of policemen, of soldiers, of heroes, of martyrs, of sons for fathers and fathers for sons, and of all those who actively seek to thwart the vilest human endeavors. Yet today, little such language exists in our political sphere, denoting a particularly bankrupt misconception about government: that it exists not primarily for the legitimate dispensation of war, not for bringing justice to the transgressor and establishing civilization with the sword, but rather for the promotion of comfort.
Behind this illusion of goodwill lies an abominable ideology of surrender, that the rights we sacrifice to place government in authority should still remain forfeited, but that no actual justice be taken against our enemies. This cruel and unusual ideology demands that our border remain open, though we know foreign sex offenders, gang members, kidnappers, drug smugglers, and Hezbollah creep through it. It demands that Americans try terrorists in civilian courts, that certain races not be prosecuted, and that perverse ideologies be publicly recognized as equal, valuable, and legitimate. It demands that we further victimize those harmed by evil, by allowing rapists, murderers, child molesters, and kidnappers to live on their victims’ and their victims’ families’ purses, and in many cases to go free after short sentences. But why?
It could be argued that a disinclination toward state violence simply acknowledges that governments are run by flawed men, and that war — the intended disregard of natural rights — is oftentimes also waged by the state upon the individual (Second Treatise, sect 20). And in this ability for the state to wage war lies a threat far greater than from any individual, as the individual citizen does not possess the state’s monopoly on violence. But since government must necessarily be espoused with violence, we must determine the boundaries within which forceful coercion takes place: first in what circumstances, second to what extent.
In response to the latter question, to what extent violence is legitimate, our eighth amendment plainly states that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” But as James Madison complained in Federalist Paper #84, ambiguous terms provide no real safety for the American populace. For instance, what is excessive? What is cruel? And what is unusual? And most importantly, who determines what they mean?
It could be argued that this ambiguity necessarily favors a more lenient approach to interpretation, and that if we err in interpretation, it is more acceptable to err in favor of liberty than cruelty. For instance, the eighth amendment grants the right to sue because a citizen believes a punishment to be too harsh, not because they believe it to be too light. But if this is the case, “cruel and unusual” is defined by those on the most lenient end of the judicial spectrum, almost inescapably placing justice into the hands of those neither wise enough to understand the condition of man, nor noble enough to properly confront it.
But could it not also be argued that despite lax treatment toward the violent offender, that the law still serves its purpose: to address infringements upon natural rights? This is partially true, as thieves, rapists, and murderers are still apprehended by our system of justice, and oftentimes serve sentences. But addressing infringements is not necessarily justice if the punishment does not adequately fit the crime. If simple address were sufficient, then rapists and murderers could pay fines and be on their way, and few would wince.
Therefore, the dispensation of punishment must exist within particular boundaries, since granting the weakest portions of humanity control of the extent of punishment is neither just nor safe. In response to the eighth amendment’s inevitable trajectory toward weakness we find the indispensability of a clearly defined, objective standard by which we seek retribution, the very standard by which we determine the pursuit of justice to itself be just.
The answer to this question is controversial as all other moral truths, but it leaves little room for perversion. In a righteous society, physical justice is to be limited by whatever the violent crime was. If a man attacks his neighbor with a baseball bat and breaks an arm, the neighbor is entitled to lost wages resulting from the broken appendage, and the offender will be punished with a broken arm (although this may be waived by the victim).
But supposing an offender were to engage in something so despicable, that sentencing an equal punishment would debase society at large (such as rape), the death penalty should be imposed as both a deterrent and a form of retribution. Within this standard, execution would be moral in specific circumstances — premeditated murder, kidnapping, rape, and child molestation — so as not to defile our land with injustice. And in protection of the defendants, anyone who fabricates evidence should be given the exact punishment they sought for those on trial.
In conclusion, the state of man is abominable, the state of war inevitable, and the sword when properly wielded, noble. But if we permit the least principled to dictate our terms of justice, then the war for civilization is over, and the barbarian has won. The limits of physical retribution have been listed above, in entirely Biblical terms. I dare the reader to think of better.