Harmelin's Faulty Originalism

In Harmelin v. Michigan, in 1991, Justice Scalia, writing only for himself and Chief Justice Rehnquist, set forth the claim that the Cruel and Unusual Punishments Clause, as understood in 1791, did not require proportionality in sentencing. Instead, he argued, it was understood at that time as addressing only certain methods of punishment. Twenty-one years later, the plurality opinion in Harmelin remains the foundation for conservative originalist arguments against the notion that the Clause forbids disproportionate punishment. It has continued to be cited by its adherents, Justices Scalia and Thomas, as recently as the last week of the October 2011 Term.Building on the contributions of others, but with the addition of new insights, this Essay contains a point-by-point refutation of the arguments made by Justice Scalia in Harmelin. It demonstrates that the original understanding of the Cruel and Unusual Punishments Clause is not nearly as clear as the Harmelin plurality opinion pretends. To the extent that there was any consensus in 1791, it appears that the framers and ratifiers of the Clause contemplated that it encompassed some requirement of proportionality. The notion that the Clause was clearly understood as forbidding only certain methods of punishment is demonstrably false. Indeed, the use of the term “cruel or unusual” to constrain Congress’ power to punish violators of confederal customs laws under the Articles of Confederation strongly suggests that the term encompassed a proportionality component.