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INTRODUCTION
Morality in Eighth Amendment jurisprudence is but one aspect of a more general topic: the use of moral reasoning by judges in American constitutional interpretation. seeing the role of moral reasoning through the prism of the Eighth Amendment may help shed light on the more general topic because of three facts: a clear historical record about the Amendment, its frequent invocation in theoretical debates about morality and jurisprudence, and the way it has forced the Supreme Court to address morality directly in its opinions.
We know a great deal about the history of the Eighth Amendment. We know precisely what kind of debate surrounded the provisions that ultimately led to the adoption of the Cruel and Unusual Punishment Clause.1 We also have a fairly specific understanding of what penalties were thought to be acceptable under the Clause at the time of its adoption. A sufficient historical record is thus available to interpret the Clause for those who choose to do so because they adhere to a narrow intentionalist theory of constitutional interpretation (as did the Justice Department under Ed Meese2). We know, for example, that the application of the death penalty to juveniles-the issue considered in Roper v. Simmons3-was considered acceptable so long as the defendants were at least seven years old.4 If original intent and history are important to a judge, a thorough record is available for use.
In part because of the extensive historical record, the Eighth Amendment has opened the door to extensive debate over socalled "interpretive intent," drawing in such theorists as Paul Brest,5 Ronald Dworkin,6 Raoul Berger,7 and H. Jefferson Powell.8 These scholars often refer to the Cruel and Unusual Punishment Clause because the debates at the time of adoption allow competing sides to make arguments about whether the Framers intended the clauses of the Constitution to be interpreted by their own intentions. As a result, Eighth Amendment jurisprudence is comparatively well theorized.
Finally, throughout Supreme Court opinions interpreting the Clause-from Weems v. United States,9 to Justice Stewarfs opinion in Gregg v. Georgia,10 to Justice Kennedy's opinion in Roper11-one finds Justices who are self-conscious about their use of moral reasoning in their jurisprudence. The Court's Eighth Amendment opinions, like those under the Due Process Clause of the Fourteenth Amendment,...