982 chancellor kent in a paragraph of his

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*982 Chancellor Kent, in a paragraph of his Commentaries arguing that capital punishment “ought to be confined to the few cases of the most atrocious character,” does not suggest that the “Cruel and Unusual Punishments” **2695 Clauses of State or Federal Constitutions require such proportionality—even though
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Harmelin v. Michigan, 501 U.S. 957 (1991) 111 S.Ct. 2680, 115 L.Ed.2d 836, 59 USLW 4839 © 2016 Thomson Reuters. No claim to original U.S. Government Works. 13 the very paragraph in question begins with the statement that “cruel and unusual punishments are universally condemned.” 2 J. Kent, Commentaries on American Law 10–11 (1827). And Justice Story had this to say: “The provision [the Eighth Amendment] would seem wholly unnecessary in a free government, since it is scarcely possible, that any department of such a government should authorize, or justify such atrocious conduct. It was, however, adopted as an admonition to all departments of the national government, to warn them against such violent proceedings, as had taken place in England in the arbitrary reigns of some of the Stuarts.” 3 J. Story, Commentaries on the Constitution of the United States § 1896 (1833). Many other Americans apparently agreed that the Clause only outlawed certain modes of punishment: During the 19th century several States ratified constitutions that prohibited “cruel and unusual,” “cruel or unusual,” or simply “cruel” punishments and required all punishments to be proportioned to the offense. Ohio Const., Art. VIII, §§ 13 , 14 (1802) ; Ind. Const., Art. I, §§ 15 16 (1816) ; Me. Const., Art. I, § 9 (1819); R.I. Const., Art. I, § 8 (1842); W.Va. Const., Art. II, § 2 (1861–1863); Ga. Const., Art. I, §§ 16, 21 (1868). Perhaps the most persuasive evidence of what “cruel and unusual” meant, however, is found in early judicial constructions of the Eighth Amendment and its state counterparts. An early (perhaps the earliest) judicial construction of the federal provision is illustrative. In Barker v. People, 20 Johns. *457 (N.Y.Sup.Ct.1823) , aff'd, 3 Cow. 686 (N.Y.1824) , the defendant, upon conviction of challenging another to a duel, had been disenfranchised. Chief Justice Spencer *983 assumed that the Eighth Amendment applied to the States, and in finding that it had not been violated considered the proportionality of the punishment irrelevant. “The disenfranchisement of a citizen,” he said, “is not an unusual punishment; it was the consequence of treason, and of infamous crimes, and it was altogether discretionary in the legislature to extend that punishment to other offences.” Barker v. People, supra, at *459. Throughout the 19th century, state courts interpreting state constitutional provisions with identical or more expansive wording ( i.e., “cruel or unusual”) concluded that these provisions did not proscribe disproportionality but only certain modes of punishment. For example, in Aldridge v. Commonwealth, 4 Va. 447 (1824) , the General Court of Virginia had occasion to interpret the cruel and unusual punishments clause that was the direct ancestor of our federal provision, see supra, at 2686. In rejecting the
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  • Thomson Reuters, Eighth Amendment to the United States Constitution, Ronald Allen HARMELIN

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