No Sense of Decency

Abstract: For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen as a lightning rod over constitutional interpretation, as its very language embodies living constitutionalism and seems to reject originalism.

Now an evaluation of the possible replacements for the “evolving standards of decency” test takes on greater urgency. Appellate court judges have begun to press the Court to replace or reconsider the test. Three Justices have signaled their willingness to overrule the test, and at least two more are likely to join them. Given that stare decisis does not appear to be a formidable constraint on the current Court, the time has come to grapple with a new reality for the Eighth Amendment.

This Article begins with a comprehensive evaluation of the tests that both originalist and non-originalist scholars have proposed as replacements. It contends that none of the proposed tests eliminate the shortcomings of the evolving standards of decency test, then concludes that originalism is an unsuitable methodology for interpreting the Eighth Amendment. The Article then proposes a new test—grounded in the structural harms of the modern criminal punishment system—that constrains judicial discretion in line with the constitutional values of antisubordination and human dignity. This new test addresses the flaws of the evolving standards of decency test without rendering Eighth Amendment jurisprudence a dead letter.

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen as a lightning rod over constitutional interpretation, as its very language embodies living constitutionalism and seems to reject originalism.

Now an evaluation of the possible replacements for the “evolving standards of decency” test takes on greater urgency. Appellate court judges have begun to press the Court to replace or reconsider the test. Three Justices have signaled their willingness to overrule the test, and at least two more are likely to join them. Given that stare decisis does not appear to be a formidable constraint on the current Court, the time has come to grapple with a new reality for the Eighth Amendment.

This Article begins with a comprehensive evaluation of the tests that both originalist and non-originalist scholars have proposed as replacements. It contends that none of the proposed tests eliminate the shortcomings of the evolving standards of decency test, then concludes that originalism is an unsuitable methodology for interpreting the Eighth Amendment. The Article then proposes a new test—grounded in the structural harms of the modern criminal punishment system—that constrains judicial discretion in line with the constitutional values of antisubordination and human dignity. This new test addresses the flaws of the evolving standards of decency test without rendering Eighth Amendment jurisprudence a dead letter.