The Bill of Rights: Articles VII and VIII

Before we get started on our discussion of the Seventh and Eighth Amendments to the Constitution, we should note a recent US district court decision that has great interest to our discussion of the Fourth (no unreasonable searches) and Fifth (no self-incrimination) Amendments.

In his decision in the case of US v. Fricosu (Criminal Case No. 10-cr-00509-REB-02), a Colorado District Court judge ordered defendant Ramona Fricosu to provide the government an unencrypted copy of the hard drive of her laptop computer as part of an investigation of a financial fraud case. The case, summarized in this article, is interesting because it concerns several of the rights we've been talking about over the past few days. Take a few minutes to read the article and the decision (particularly part 2, "Conclusions of Law," beginning on page 5), and we'll come back and revisit the story in a few days.

Today, we look at the Seventh and Eighth Amendments:

Amendment VII: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

and,

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

The Seventh Amendment amplifies the Sixth, guaranteeing the right to a jury trial in ordinary lawsuits involving sums above $20 - which isn't much now, but was quite a respectable sum in the Founders' day. It also provides some basic insurance against nuisance lawsuits being filed repeatedly, other than in accordance with prevailing law.

The Eighth Amendment is more interesting, and is much in the news lately. The issues often raised in conjunction with this amendment are usually based on its use of modifiers: how much bail or how large a fine is excessive? And, more important, what makes a punishment cruel and unusual (as opposed to kind and usual)?

When the Founders wrote the Constitution and the Bill of Rights, they'd had recent experience of a government that was able arbitrarily to impose cruel punishments of various kinds ... the sorts of things we today, in a more enlightened era, would consider under the general heading of torture. They wanted to ensure that the rights of the citizens of the United States to be free of such punishments (but not from legitimate, legally-imposed punishment per se) was maintained.

Today, of course, we have a more liberal view of what constitutes cruel and unusual in the imposition of punishments. Is waterboarding considered torture and, therefore, cruel and unusual? How about solitary confinement? Is it considered cruel and unusual to fail to provide a prisoner with meals consistent with the requirements of his (or her) religious faith?

Is the death penalty cruel and unusual? It wasn't in the Founders' time, unless it was applied in a particularly cruel method (such as the practice of drawing and quartering). According to many people today, though, it is ... no matter how it's applied.

So ...

The Seventh and Eighth Amendments, particularly the Eighth, provide key rights that we as citizens enjoy and need to understand and protect. Read them, think about them, and remember that there are those out there who would restrict them in the interest of an imagined greater good.

Don't let them.

Have a good day. More thoughts tomorrow.

Bilbo