June 2010

Terrance Jamar Ghaham was 17 years old at the time he violated his probation on an armed burglary offense. He was sentenced to life imprisonment by a trial judge who concluded that Graham was incorrigible despite recommendations of limited term sentences by the Department of Corrections and the State prosecutor. Since Florida had abolished its parole system for all crimes, the life sentence left Graham with no opportunity for release for the rest of his life barring executive clemency. Graham's Eighth Amendment challenge to his sentence was rejected on appeal to the Florida District Court of Appeal, which concluded that Graham was "incapable of rehabilitation." In an opinion by Justice Kennedy, the Supreme Court reversed, finding such sentences so disproportionate and rare that they could not bear the weight of the Eighth Amendment.

That the Eighth Amendment's ban on cruel and unusual punishments extends to prison sentences has been treated as settled law for 100 years until the appointment of the current crop of arch-conservatives to the Court, led by Scalia and Thomas, who, joined by Justice Alito, dissented in Graham. Their view is that the original meaning of the Eighth Amendment was limited to outrageous methods of punishment such as torture and did not extend to the proportionality of prison sentences, which, according to their theory, was left to the limitless discretion of State and federal legislative bodies. The majority in Graham takes a quite different approach. In a complete rejection of the dissenters' rigid and narrow reading of "cruel and unusual punishments," the Court reaffirms once again that "courts must look beyond historical conceptions to ‘the evolving standards of decency that mark the progress of a maturing society.'" Inherent in this process is an inquiry into "proportionality," which is "central to the Eighth Amendment."

David Firestone, in an op-ed for The New York Times, notes for us that the 17th Amendment was added to the Constitution in 1913 and provided "for the direct popular election" of U.S. senators. Before the amendment was adopted, state legislatures, "filled with men of property and stature," chose senators, Firestone writes.

Beyond some Tea Partiers, is there a groundswell of support for dumping the 17th Amendment and allowing state legislatures to select senators?

As Firestone notes, "A modern appreciation of democracy - not to mention a clear-eyed appraisal of today's dysfunctional state legislatures - should make the idea unthinkable. But many Tea Party members and their political candidates are thinking it anyway, convinced that returning to the pre-17th Amendment system would reduce the power of the federal government and enhance state rights."

Firestone concludes:

It may be true that appointed senators, accountable only to state legislators, would never approve of many useful federal mandates designed to put the national interest above local parochialism - including everything from the minimum wage to the new health care reform law.

Not enough Americans vote. But, fortunately, almost all like the idea that they can, a thoroughly modern sentiment that will confine this elitist notion to the fringes. That means Tea Partiers who are infuriated by the health care law and everything else now going on in Washington can no longer look to James Madison for a bailout. Their best remedy is the one they seem to spurn: a vote at the ballot box.