The Constitutional Amendment That Needs More Attention
By: Grant Piper
Tags: Politics, USA, BlackLivesMatter, Justice, Constitution

In rural Indonesia, under the heat of the waning sun, eight people were seen digging holes. Graves. The graves were to be used by people who had recently died from the ongoing coronavirus pandemic. Their crime? Being caught not wearing a mask in public.

CNN called the punishment “unique”. I called the punishment unusual.

For the first time in recent memory, I was grateful for the under appreciated words of the Eighth Amendment to the United States Constitution which protects me and millions like me, from being forced to abide by unusual punishments.

In an era of intense public shaming and amidst ongoing discussions about bail and criminal justice reform, I think many of us would benefit from relearning, absorbing and appreciating the words of the Eighth Amendment.

Our shortest right

The Bill of Rights includes the first ten amendments to the United States Constitution that were ratified after its initial passing. Of the ten amendments in the Bill of Rights, the Eighth Amendment is the shortest. It is only sixteen words long.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. — Amendment VIII, US Constitution

While other amendments such as the first, second and fourth often take up the bulk of our political and historical discourse, the Eight Amendment is extremely important and could definitely see new life in America today.

CNN seems to think that being forced to dig graves for your peers, in an era of mass death tolls and ominous government seizures of power, is simply an exercise of “empathy” and “manual labor”. I thought it to be unusual at best and cruel at worst.

In fact, being forced to dig graves has long been a punishment used in connection to psychological torture events such as mock executions. It was a favored method of punishment and torture used by ISIS in the Middle East.

Fortunately in this country, we have the sixteen words of the Eighth Amendment ensuring that something like this could not happen here.

Excessive bail and fines

Most people are taught that we are protected from cruel and unusual punishment, even if they don’t know exactly where that protection comes from. I would wager a guess that most people do not know that they should also be protected from excessive bail and fines.

What makes bail excessive? Who determines what is excessive and what isn’t?

These are questions that I have had more and more frequently as of late. Is a million dollars an excessive amount? How about being held without any bail at all? Is infinite bail excessive?

I think in an era where questions like this are moving quickly to the forefront of people’s minds there is ample room to invoke the Eighth Amendment.

As a political scientist and history writer, I fully believe that working on precedent and established documents is a much better option than trying to forge something new. At least, if the system is working properly, it should be.

Perhaps instead of launching massive anti-bail campaigns, we can open lawsuits aimed at getting a modern clarification or interpretation on what counts as excessive bail. The Constitution is clear, we are protected from having excessive bail levied against us.

So where is this protection?

Unfortunately, many jurisdictions, judges and government agencies seem completely fine with allowing massive bail numbers to be set for people. In their minds, it is not excessive. But I can promise them that someone living below the poverty line being slapped with a $500,000 bail amount is definitely going to look, sound and feel excessive.

The problem is, if you start mouthing off about your Eighth Amendment rights to a cop on the street or a judge in the courtroom you are likely to get slapped, physically or otherwise.

So what can we do?

Lawyers for civil rights groups need to start invoking the Eighth Amendment more often and more aggressively. There needs to be a public awareness campaign about your civil rights as written in the Constitution. People should start using this amendment as frequently as people bring up the first or second amendments. It often feels like once you get past the first couple of amendments, people lose interest.

The authors of the Eighth Amendment did not mince words. It says it right there in black and white. Excessive bail shall not be required. Shall not. Be. Required.

So why is that so often the case?

I think given the right amount of attention and energy, this issue could be solved. It ties in so nicely with already existing movements against cash bail, against police brutality and against institutionalized racism that it should be a slam dunk. It already says it in the Constitution and the Constitution applies to all of us. Someone just needs to remind the people in Washington and down at central that the Constitution still exists and can still be enforced.

Remember your rights

Too often I feel as though the Constitution is seen as a “right wing thing”. People on the right go to the Constitution often when it comes to gun rights and religious rights. And you know what? They win often.

That is because the Constitution protects all of us. It is a tool for all Americans.

Yet, there are many today who do not want to use the Constitution to help solve their problems.

I’m not sure why so many people seem to write off the Constitution completely. There are good things in there, things we can use today even if you disagree with parts of it, use the parts that are favorable to your advantage.

Looking at the pictures of the poor Indonesians being forced to dig graves, I am grateful for our Constitution. Then I look and see that someone caught with cash and meth is being held on $250,000 bail and I think that there is more to be done.

The Eighth Amendment deserves its time in the sun. It deserves to be appreciated and it deserves to be used as a legal cudgel to bang against the cell walls of excessive bail that is plaguing this nation.

You are allowed to plead the fourth and you are allowed to plead the fifth. Maybe someday we will be allowed to also plead the eighth.