HKB
The ban against "cruel and unusual punishment" has received somewhat greater attention. In Wilkerson v. Utah[10] the Court observed that: "Difficulty would attend the effort to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted, but it is safe to affirm that punishments of torture, ... and all others in the same line of unnecessary cruelty, are forbidden by that Amendment to the Constitution."[11] Shooting as a mode of executing the death penalty was sustained over the objection that it was cruel and unusual.
A partially successful effort has been made to enlarge the concept of unusual punishment to cover penalties which shock the sense of justice by their absolute or relative severity. Justice Field pointed the way for this development in his dissenting opinion in O'Neil v. Vermont,[12] wherein the majority refused to apply the Eighth Amendment to a State. With the concurrence of two other Justices he wrote that the amendment was directed "against all punishments which by their excessive length or severity are greatly disproportioned to the offenses charged."[13] Eighteen years later a divided Court condemned a Philippine statute prescribing fine and imprisonment of from twelve to twenty years for entry of a known false statement in a public record, on the ground that the gross disparity between this punishment and that imposed for other more serious fines made it cruel and unusual, and as such, repugnant to the Bill of Rights.[14] No constitutional infirmity was discovered in a measure punishing as a separate offense each act of placing a letter in the mails in pursuance of a single scheme to defraud.[15]
Notes
[1] 1 Annals of Congress 754 (1791).
[2] Ibid.
[3] 18 U.S.C. Sec. 371, 2385.
[4] Stack v. Boyle, 342 U.S. 1 (1951).
[5] 8 U.S.C.A. Sec. 156 (a) (1); 64 Stat. 1011.
[6] Carlson v. Landon, 342 U.S. 524 (1952).
[7] Ex parte Watkins, 7 Pet. 568, 574 (1833).
[8] 255 U.S. 407 (1921).
[9] Ibid. 435.
[10] 99 U.S. 130 (1879).
[11] Ibid. 135.
[12] 144 U.S. 323 (1892).
[13] Ibid. 339, 340.
[14] Weems v. United States, 217 U.S. 349, 371, 382 (1910).
[15] Badders v. United States, 240 U.S. 391 (1916). Cf. Donaldson v. Read Magazine, 333 U.S. 178, 191 (1948).
AMENDMENT 9
RIGHTS RETAINED BY THE PEOPLE
Amendment 9
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The only right which the Supreme Court has explicitly acknowledged as protected by this amendment is the right to engage in political activity. That recognition was accorded by way of dictum in United Public Workers v. Mitchell, where the powers of Congress to restrict the political activities of federal employees was sustained.[1] An argument that the competition of the TVA in selling electricity at rates lower than those previously charged by private companies serving the area amounted to an indirect regulation of the rates of those companies and a destruction of the liberty said to be guaranteed by the Ninth Amendment to the people of the States to acquire property and employ it in a lawful business, was summarily rejected.[2] Previously the Court had upheld the right of the TVA to sell electricity, saying that the Ninth Amendment did not withdraw the right expressly granted by section 3 of article IV to dispose of property belonging to the United States.[3]
Notes
[1] 330 U.S. 75, 94 (1947).
[2] Tennessee Electric Power Co. v. T.V.A., 306 U.S. 118, 143, 144 (1939).
[3] Ashwander v. T.V.A., 297 U.S. 288, 330, 331 (1936). See also the language of Justice Chase in Calder v. Bull, 3 Dall. 386, 388 (1798); and of Justice Miller for the Court in Loan Asso. v. Topeka, 20 Wall. 655, 662-663 (1874).
AMENDMENT 10
RESERVED STATE POWERS
Page Scope and purpose 915 The taxing power 916 The commerce power 917 Police power 918 State activities and instrumentalities 919
RESERVED STATE POWERS
Amendment 10