Neither Cruel nor Unusual

A friend suggested today that slavery is unconstitutional because it is a cruel and unusual punishment as prohibited by the Eighth Amendment which reads:

Amendment VIII

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

This claim is clearly false on two counts.

First, if slavery were both cruel and unusual, neither the thirteenth Amendment nor the Emancipation Proclamation (issued on January 1, 1863) would have been necessary to ban slavery within the US (except as a punishment for a crime). By the very existence of these two documents, the eighth Amendment is insufficient to ban slavery.

Second, Constitutional Amendments are interpreted in reverse chronological order, the most recent Amendments trumping their predecessors. If this were not true, the eighteenth Amendment establishing prohibition would be in direct conflict with the twenty first Amendment repealing the eighteenth. Similarly, the twenty-second Amendment would conflict with both Article I Section 4 of the Constitution and with the twelfth Amendment. As such, the text of the thirteenth amendment trumps that of the eighth Amendment.

Therefore, slavery is neither cruel nor unusual. It is, however, unconstitutional except as a punishment for a crime as stated in the thirteenth Amendment (see earlier post).

Q.E.D.