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March 04, 2021, 01:07:02 AM

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  Constitution and Law (Moderator: True Federalist (진정한 연방 주의자))
  13A slavery as punishment and 8A
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Author Topic: 13A slavery as punishment and 8A  (Read 441 times)
Geoffrey Howe admirer
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« on: February 22, 2021, 05:48:00 PM »

The Thirteenth Amendment provides in part that

Ďneither slavery nor involuntary servitude shall except as a punishment for crime...shall exist in the United Statesí

Does this, in your opinion, preclude any Eighth Amendment (cruel and unusual punishment) finding that slavery is unconstitutional punishment?

After all, some have argued that the mention of capital crimes in, e.g. Fifth Amendment, precludes any Eighth Amendment finding that capital punishment is per se unconstitutional.

Against this proposition I suppose it could be argued that this caveat only applies as a limit to the Thirteenth (and the enforcement power of Congress, ß2), and does not rule out that it could be otherwise unconstitutional; i.e. it isnít an explicit exception to any other part of the Constitution.
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True Federalist (진정한 연방 주의자)
Ernest
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« Reply #1 on: February 22, 2021, 08:39:51 PM »

Before, the Court began misapplying the Eighth, this couldn't have really been a question for the court unless some long neglected statute was used by an overly ambitious prosecutor.
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Geoffrey Howe admirer
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« Reply #2 on: February 23, 2021, 03:29:27 AM »

Before, the Court began misapplying the Eighth, this couldn't have really been a question for the court unless some long neglected statute was used by an overly ambitious prosecutor.
But you have had some, e.g. Byron White, Warren Burger, and, if Iím not mistaken, Neil Gorsuch recently, who donít quite interpret the Eighth as I think you suggest, but do apply  a similar idea to capital crimes in the Fifth.

Now I wouldnít be surprised if they, especially Burger/White, not originalists, found slavery to be cruel and unusual. Applying the standard 8A jurisprudence we have nowadays - i.e. evolving standards of decency to strike down legislatively authorised punishments, though deferential, do you think 13A would preclude this finding?
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TheReckoning
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« Reply #3 on: February 23, 2021, 06:11:04 PM »

Iím fine with prison labor, as long as theyíre paid something and itís done outside the context of private prisons.
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NYDem
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« Reply #4 on: February 23, 2021, 08:15:04 PM »

Slavery as punishment for a crime is permissible per the 13th Amendment. The 13th Amendment comes after the 8th Amendment, so the 13th Amendment takes precedent in a conflict. The 8th Amendment couldn't be used to end slavery as punishment as far as I see it.
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Geoffrey Howe admirer
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« Reply #5 on: February 24, 2021, 03:51:05 AM »

Slavery as punishment for a crime is permissible per the 13th Amendment. The 13th Amendment comes after the 8th Amendment, so the 13th Amendment takes precedent in a conflict. The 8th Amendment couldn't be used to end slavery as punishment as far as I see it.

It seems to me that a better reading is to preclude a 13A finding of unconstitutionality, but not 8A; i.e. to read it as narrowing the scope only of 13A, not anything else. Of course it settles the matter if you are an originalist.
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True Federalist (진정한 연방 주의자)
Ernest
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« Reply #6 on: February 24, 2021, 09:17:29 PM »

Before, the Court began misapplying the Eighth, this couldn't have really been a question for the court unless some long neglected statute was used by an overly ambitious prosecutor.
But you have had some, e.g. Byron White, Warren Burger, and, if Iím not mistaken, Neil Gorsuch recently, who donít quite interpret the Eighth as I think you suggest, but do apply  a similar idea to capital crimes in the Fifth.

Now I wouldnít be surprised if they, especially Burger/White, not originalists, found slavery to be cruel and unusual. Applying the standard 8A jurisprudence we have nowadays - i.e. evolving standards of decency to strike down legislatively authorised punishments, though deferential, do you think 13A would preclude this finding?

Why bother with an Amendment when you can use the original Construction itself?

Quote from: Article IV, Section 2, Clause 3
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

All the Thirteenth does is limit how a Person might come to be held to Service or Labor.
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