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Separating Retribution from Proportionality: A Response to Stinneford

Professor John Stinneford follows his initial article concerning the original meaning of the Eighth Amendment with an excellent article in the Virginia Law Review, Rethinking Proportionality Under the Cruel and Unusual Punishments Clause. In this latest piece, Stinneford argues that the original meaning of the Eighth Amendment’s Cruel and Unusual Punishments Clause includes not only a prohibition against barbaric punishments (defined as ones without “long usage”), but also against excessive or “disproportionate” punishments. Stinneford then advocates rethinking the Supreme Court’s Eighth Amendment evolving standards of decency jurisprudence to center the “cruel” inquiry on whether the punishment at issue is “proportionate,” in a retributive sense, in light of prior punishment practices.

Stinneford’s article is important both in that it legitimizes, from an originalist perspective, the use of proportionality in the application of the Eighth Amendment, and in that it offers a proposal for restructuring the application of the Eighth Amendment around this principle. In doing so, Stinneford uses his historical interpretation of the Eighth Amendment to argue for a new approach to applying proportionality in a solely retributive manner.

In this brief Response, I raise two possible objections to Stinneford’s analysis. First, Stinneford insists that proportionality must be solely a retributive concept for Eighth Amendment purposes, both as a matter of original interpretation and sound application. While retribution is certainly part of the “proportionality” analysis, I believe that utilitarian justifications of punishment are also relevant to the concept of proportionality. As explained below, this is true both as a matter of original interpretation and perhaps more importantly as a reasonable basis for the Court’s current application of the Eighth Amendment.

Sosa, Federal Question Jurisdiction, and Historical Fidelity

In his paper “International Human Rights in American Courts,” Judge Fletcher concludes that Sosa v. Alvarez-Machain“has left us with more questions than answers.” Sosaattempted to adapt certain principles belonging to the “general law” to a post-Eriepositivistic conception of common law while maintaining fidelity to certain historical expectations. “[I]t would be unreasonable,” the Court thought, “to assume that the First Congress would have expected federal courts to lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism.” The Court was unwilling, however, out of concern for assuming a more expansive judicial role than the Alien Tort Statute (“ATS”) justified, to hold that federal courts may hear any claim for a violation of customary international law. In an effort to maintain fidelity to the First Congress’s expectations, the Court held in Sosa“that federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when [the ATS] was enacted”—specifically, “violation of safe conducts, infringement of the rights of ambassadors, and piracy.”

I will discuss here a problem that Judge Fletcher rightly observes Sosa did not discuss—“the subject matter jurisdiction problem.” In particular, what constitutional power does Congress have to authorize federal court jurisdiction over claims based on customary international law?

Does the Structure of the Franchise Tax Matter?

In Delaware’s Compensation, I analyzed the relationship between the structure of Delaware’s franchise tax and Delaware’s incentives for producing corporate law.

Conventional wisdom, supported by theory and evidence, has it that the franchise tax plays an important role in shaping Delaware corporate law. Under the widely held account, Delaware offers a product and charges a price, the franchise tax, which creates incentives for the state to attract incorporations. Some argue that this system results in a race to the bottom, while others argue that it results in a race to the top. But no one argues that the tax is unimportant to Delaware, and evidence demonstrates the tax’s significance. The literature, however, fails to address Delaware tax structure, and how such structure affects Delaware’s incentives. Delaware’s Compensation first submitted the view that if the tax matters, then the tax’s structure matters too.

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