Devolving Standards of Responsibility that Mark the Collapse of a Decaying Society

Third Circuit Judge Tom Hardiman debunks a favorite liberal shibboleth.

It was a 65 years ago that the Left, courtesy of Chief Justice Earl Warren (as it often was), introduced one of the hallmark phrases — wonderfully high-minded to listen to but full of mischief — that liberal jurists would use for the next two generations to augment their power, shrink the power of the democratically-responsible branches, and shove the law into liberal precincts that it never would have reached had the will of the electorate, rather than the willfulness of judges, taken center stage.

It probably seemed harmless enough at the time. In Trop v. Dulles, decided in 1958, the Supreme Court established a remarkably fluid view of the Eighth Amendment’s ban on cruel and unusual punishment. Under Trop’s holding, punishments previously deemed perfectly acceptable could be abolished by judicial fiat. In that case, the Court analyzed the propriety of Albert Trop, an Army private who deserted his post in Morocco during World War II, being barred from receiving a passport because he was deemed to have forfeited his citizenship under the Nationality Act of 1940.

The specific question before the Court was whether terminating Trop’s citizenship was cruel and unusual within the meaning of the Eighth Amendment. In the majority opinion, Warren ruled in favor of Trop, claiming that the Court had never before found an apt opportunity to define “cruel and unusual punishments” — but was now up to the task. He argued that “the basic concept underlying the Eighth Amendment is the dignity of man” and that “the Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” The term “evolving standards of decency” has been with us ever since as the norm for determining whether a punishment is “cruel and unusual.”

Well, sure, who but an oaf would argue that the law should not be guided by “evolving standards of decency.” We all want to get better and be decent, right? But the nasty question, as is so often the case in law, is who gets to decide what “decency” actually means. To the Trop majority and its eager followers, the answer was simple: The courts.

The other nasty question was what standard the courts should be using to decide the issue. No one important enough to count noticed that the Eighth Amendment itself says not one word about “evolving standards of decency,” and still less does it contain language empowering judges rather than legislatures to decide what those standards should be even if the Framers had included a reference to them in the original language. Only judges plucked for the elites of Yale and Stanford, blah, blah, blah, could be entrusted with telling the rest of us what’s decent. Those wahoo voters out there would need to learn — not to put too fine a point on it — to shut up and listen.

It will come as no surprise to Ringside readers that, over the last six decades or so, “evolving standards of decency” has turned out to mean “whatever the liberal agenda du jour prefers.” It has zip to do with decency. It has everything to do with simply reversing liberal losses in the legislatures (about who might be subject to the death penalty, for example) into victories for killers — this in the name of “decency,” mind you. It is in part for this reason that the number of death sentences and actual executions has been in sharp decline for at least a generation (although this trend has somewhat stabilized over the last several years, as illustrated here).

But help might be on the way. Someone has noticed what a shell game “evolving standards of decency” has become, and, perhaps more importantly, how much it’s anchored, not in any serious understanding of the Constitution, but simply in Leftist doctrine masquerading as devotion to “decency” (while tut-tutting everyone else). Hence I bring you this article in Reuters about a recent address by Judge Tom Hardiman of the Third Circuit. Judge Hardiman was an appointee of President George W. Bush and reportedly on the short list for the Supreme Court seat that went to Brett Kavanaugh.

A federal appeals court judge on Wednesday argued that the conservative-majority U.S. Supreme Court would have grounds to revisit its interpretation of the U.S. Constitution's prohibition on cruel and unusual punishment and "return to the text and original meaning of the 8th Amendment."  In a speech delivered at Harvard Law School, U.S. Circuit Judge Thomas Hardiman…argued that the high court should abandon a decades-old legal test for deciding if a punishment was unconstitutional.

The Supreme Court in a series of cases starting in 1952 interpreted the 8th Amendment's prohibition on cruel and unusual punishment based on what opinions described as the "evolving standards of decency that mark the progress of a maturing society." But Hardiman told the Harvard chapter of the conservative Federalist Society that the standard is a "contrived ratchet" that has fueled a "runaway train of elastic constitutionalism" giving judges too much power to invalidate laws in favor of defendants. "Its inscrutable standards require judges to ignore the law as written in favor of their own moral sentiments," he said. "The only constant is that more and more laws adopted by the people's representatives have been nullified."

Supreme Court rulings that have relied on that standard include one in 2005 barring capital punishment for offenders who were under 18 when they committed crimes and a 2008 decision striking down a Louisiana law allowing the death penalty for the rape of a child when the victim did not die. The court also relied on that standard in a 5-4 decision in 2012 that declared unconstitutional mandatory sentences of life in prison without the possibility of parole for people under age 18 convicted of murder....

The ideological split among justices has since changed, and thanks to three of Republican former President Donald Trump's appointments the court.... That newly constituted court in 2021 put an end to the court's run of decisions that put limits on life sentences without parole for juvenile offenders, making it easier for states to impose such sentences.

The court did so without mentioning the "evolving standards of decency" test, Hardiman said. He questioned whether the court would now "return to the text and original meaning of the 8th Amendment" as it has done in other areas, like the 2nd Amendment. He pointed to last year's Supreme Court ruling in New York State Rifle & Pistol Association v. Bruen, which set a new test for assessing firearms laws, saying restrictions must be "consistent with this nation's historical tradition of firearm regulation."

Thank you, Judge Hardiman. We can only hope the current SCOTUS takes note.