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Judge Patrick Bumatay on Originalism and the Eighth Amendment
Michael Ramsey

Newly appointed Ninth Circuit Judge Patrick Bumatay, dissenting from denial of rehearing en banc in Edmo v. Corizon, Inc. has this originalist overview of the Eighth Amendment (the issue in the case is whether the Eighth Amendment requires Idaho to pay for a prisoner's gender-reassignment surgery): 

In holding that Idaho violated the Eighth Amendment, the panel opined that the Constitution’s text and original meaning merited “little discussion.” See Edmo, 935 F.3d at 797 n.21. I disagree.

As inferior court judges, we are bound by Supreme Court precedent. Yet, in my view, judges also have a “duty to interpret the Constitution in light of its text, structure, and original understanding.” NLRB v. Noel Canning, 573 U.S. 513, 573 (2014)  Scalia, J., concurring). While we must faithfully follow the Court’s Eighth Amendment precedent as articulated in Estelle v. Gamble, 429 U.S. 97 (1976), and its progeny, “[w]e should resolve questions about the scope of those precedents in light of and in the direction of the constitutional text and constitutional history.” Free Enter. Fund v. Public Co. Accounting Oversight Bd., 537 F.3d 667, 698 (D.C. Cir. 2008) (Kavanaugh, J., dissenting), aff’d in part, rev’d in part and remanded, 561 U.S. 477 (2010). Accordingly, the Eighth Amendment’s history and original understanding are of vital importance to this case.


The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. Even just a cursory review of the amendment’s original meaning shows that Edmo’s claims fall far below a constitutional violation as a matter of text and original understanding. At the time of the Eighth Amendment’s ratification, “cruel” meant “[p]leased with hurting others; inhuman; hard-hearted; void of pity; wanting compassion; savage; barbarous; unrelenting.” Bucklew v. Precythe, 139 S. Ct. 1112, 1123 (2019) (citing 1 Samuel Johnson, A Dictionary of the English Language (4th ed. 1773); 1 Noah Webster, An American Dictionary of the English Language (1828) (“Disposed to give pain to others, in body or mind; willing or pleased to torment, vex or afflict; inhuman; destitute of pity, compassion or kindness.”)). Even today, “cruel” punishments have been described as “inhumane,” Farmer v. Brennan, 511 U.S. 825, 838 (1994), involving the “unnecessary and wanton infliction of pain,” Whitley v. Albers, 475 U.S. 312, 319 (1986) (emphasis added) (citations omitted), or involving the “superadd[ition] of terror, pain, or disgrace.” Bucklew, 139 S. Ct. at 1124 (emphasis added) (internal quotation marks and citations omitted).

In the 18th Century, a punishment was “unusual” if it ran contrary to longstanding usage or custom, or had long fallen out of use. Bucklew, 139 S. Ct. at 1123 (citing 4 William Blackstone, Commentaries on the Laws of England 370 (1769); Stuart Banner, The Death Penalty: An American History 76 (2002); Baze v. Rees, 553 U.S. 35, 97 (2008) (Thomas, J., concurring); John F. Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739, 1770–71, 1814 (2008)). This early understanding comports with the plain meaning of “unusual,” which has changed little from our Nation’s founding. See Harmelin v. Michigan, 501 U.S. 957, 976 (1991) (comparing Webster’s American Dictionary (1828) definition of “unusual” as that which does not “occu[r] in ordinary practice” with Webster’s Second International Dictionary 2807 (1954) as that which is not “in common use.”).

Conversely, customs enjoying a long history of usage were described as “usual” practices. Stinneford, supra, at 1770. James Wilson, a key contributor to the Constitution, stated that “long customs, approved by the consent of those who use them, acquire the qualities of a law.” 2 James Wilson, Collected Works of James Wilson 759 (Kermit L. Hall & Mark David Hall eds., Indianapolis, Liberty Fund 2007); see also Stinneford, supra, at 1769. Likewise, early American courts construing the term “cruel and unusual” (generally, as used in state constitutions) upheld punishments that were not “unusual” in light of common law usage. Stinneford, supra, at 1810–11 (citing Barker v. People, 20 Johns. 457, 459 (N.Y. Sup. Ct. 1823), aff’d, 3 Cow. 686 (N.Y. 1824); Commonwealth v. Wyatt, 27 Va. 694, 701 (Va. Gen. Ct. 1828); People v. Potter, 1 Edm. Sel. Cas. 235, 245 (N.Y. Sup. Ct. 1846)). Thus, “[u]nder the plain meaning of the term, a prison policy cannot be ‘unusual’ if it is widely practiced in prisons across the country.” Gibson v. Collier, 920 F.3d 212, 226 (5th Cir. 2019).

Finally, various views have been proposed with respect to the original meaning of “punishment” in the Eighth Amendment. Some view the word as being inapplicable to conditions of confinement. See, e.g., Farmer, 511 U.S. at 837 (“The Eighth Amendment does not outlaw cruel and unusual ‘conditions’; it outlaws cruel and unusual ‘punishments.’”) (Souter, J.). Some have even suggested  that “punishment” refers only to sentences imposed by a judge or jury. See Hudson v. McMillian, 503 U.S. 1, 18 (1992) (Thomas, J., dissenting); but see Helling v. McKinney, 509 U.S. 25, 40 (1993) (Thomas, J., dissenting) (recognizing that the “evidence is not overwhelming” on this question). Others believe the term was originally understood to encompass more than sentences called for by statute or meted out from the bench or jury box, but it required deliberate intent. See, e.g., Wilson v. Seiter, 501 U.S. 294, 300 (1991) (“The infliction of punishment is a deliberate act intended to chastise or deter. This is what the word means today; it is what it meant in the eighteenth century.”) (Scalia, J.) (quoting Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir. 1985)); see also Celia Rumann, Tortured History: Finding Our Way Back to the Lost Origins of the Eighth Amendment, 31 Pepp. L. Rev. 661, 675, 677 (2004) (presenting historical evidence that the word punishment was “understood at the time to include torturous interrogation”) (citing 4 William Blackstone,  Commentaries on the Laws of England; 3 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 447–48).

Impressive -- especially for someone appointed only a couple of months ago.  And congratulations to Professor John Stinneford for the citations (and to Judge Bumatay for recognizing Professor Stinneford as the key academic authority on the issue). 

The dissent goes on to apply Supreme Court precedent with an eye to the clause's original meaning.

(Via Josh Blackman at Volokh Conspiracy, who adds: "Judge Bumatay's opinion serves as a model of how other courts should treat similar issues.")

RELATED:  Professor Blackman also notes:

The NYU Journal of Law & Liberty has published the final version of my [i.e., Blackman's] new article, "Originalism and Stare Decisis in the Lower Courts." I hope this piece is of interest to many lower court judges who are now routinely engaging with the original meaning of the Constitution.