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Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.Eighth Amendment to the Constitution

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The Constitution speaks in a very clear voice on some matters. For example, it says that the United States House of Representatives shall be apportioned according to the population in the states, or that the Senate shall be composed of two senators per state. But other clauses are not so clear. For example, what is meant by the 8th Amendment’s prohibition of cruel and unusual punishment, the 2nd Amendment’s reference to the right to bear arms, or the 4th Amendment that deals with unreasonable searches and seizures? Does the 8th Amendment, for example, allow the government to execute people for certain crimes? Does the 2nd Amendment allow people to own guns? Does the 4th Amendment allow the state to search your home without a warrant? These and many other issues are open to interpretation due to the words in the Constitution.

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Two Supreme Court justices, Scalia and Breyer,  discussed two different ways of viewing the Constitution–the “original meaning” of the document and the “living Constitution.” For example, the “originalists” (Scalia) argue that the 8th Amendment’s prohibition against cruel and unusual does not prohibit the death penalty.  Those who support the “living Constitution” argument (Breyer) say that the Constitution should reflect new circumstances and “evolving standards of decency.” 

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Please view the videos on the Constitution. Focus on the different ways that Justices Breyer and Scalia interpret the Constitution. 

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1. Original Intent and the Living Constitution  start 12 minutes into the video

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2. The Constitutional Role of Judges  from 1:09 into video to 1:15. Then 2:04 to 2:10. 

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We will focus on the Eighth Amendment to the Constitution for our discussion this week 

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The Eighth  Amendment to the Constitution says the following:

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

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Your question for the week: Does the United States Constitution prohibit or allow the use of the death penalty in the United States? 

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You must make your argument from the “originalist” or “living Constitution” perspective.  Do not just state your personal opinion. Use arguments from Scalia (originalist) or Breyer (living Constitution) to support your argument.

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