Hamm v. Smith · ¶108

Supporters of the Eighth Amendment were concerned that Congress, like Parliament before it, might enhance punishments with cruelty that had by the founding fallen into disuse. See id., at 97–98. One speaker at the Massachusetts ratifying convention complained that the original Constitution “nowhere restrained” Congress “from inventing the most cruel and unheard-of punishments,” leaving “racks and gibbets” as “amongst the most mild instruments of their discipline. 2 Debates on the Constitution 111 (J. Elliot ed., 2d ed. 1891). And Patrick Henry complained that, without a Bill of Rights, Congress could infict “tortures, or cruel and barbarous punishment[s].” 3 id., at 447–448.

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