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1984 Duke L.J. 789 (1984)
Interpretation of the Eighth Amendment - Rummel, Solem, and the Venerable Case of Weems v. United States

handle is hein.journals/duklr1984 and id is 805 raw text is: INTERPRETATION OF THE EIGHTH AMENDMENT-RUMMEL, SOLEM, AND THE VENERABLE CASE OF WEEMS v. UNITED STATES In the past four years the Supreme Court twice has faced challenges to life sentences mandated under state recidivist statutes. In Rummel v. Estelle' the Court upheld a life sentence which was triggered under the Texas recidivist statute by the crime of obtaining money by false pretenses. Three years later, however, the Court in Solem v. Helm2 reversed a life sentence which was imposed under a similar South Dakota statute for the crime of passing a bad check. The Court's use of different approaches to interpretation of the eighth amendment can explain, at least in part, these disparate results. This note analyzes the proper methods of constitutional interpretation of the eighth amendment. After briefly reviewing the conflicting cases,3 it examines the main theories of constitutional interpretation.4 The note next considers the methods of interpretation employed in Rummel and Solem.5 It then examines the method of constitutional interpretation used in a 1910 case, Weems v. United States,6 and concludes that it represents a better method of realizing the intent of the adopters.7 Weems would allow courts freely to decide what is cruel and unusual, as the eighth amendment's adopters intended, without the scope of review being bound by narrow historical constraints.8 I. THE Two RECENT CASES A. Rummel v. Estelle. Rummel v. Estelle 9 dealt with an eighth amendment challenge to a life sentence under the Texas recidivist statute.10 Rummel had been 1. 445 U.S. 263 (1980). 2. 103 S. Ct. 3001 (1983). 3. See infra text accompanying notes 9-30. 4. See infra text accompanying notes 31-49. 5. See infra text accompanying notes 50-74. 6. 217 U.S. 349 (1910). 7. See infra text accompanying notes 84-108. 8. Id 9. 445 U.S. 263 (1980). 10. TEX. PENAL CODE ANN. § 12.42(d) (Vernon 1974).

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