48 CHAPTER 2|THE CONSTITUTION AND THE FOUNDING
death penalty) and freedom of speech. When the Constitution
was written, capital punishment was broadly accepted, even for
horse thieves. Therefore, the prohibition in the Eighth Amend-
ment against “cruel and unusual punishment” certainly did not
mean to the framers that the death penalty was unconstitutional.
However, in 1972 the Supreme Court struck down capital pun-
ishment as unconstitutional because it was being applied arbi-
trarily.^13 Subsequently, after procedural changes were made, the
Court once again upheld the practice. However, the Court has
since decided that capital punishment for a mentally retarded
man and minors constituted cruel and unusual punishment—a
decision that refl ects modern sensibilities but not the framers’
thinking.^14 Similarly, the text of the First Amendment protections
for freedom of speech has never changed, but the Supreme Court
has been willing to uphold signifi cant limitations on free speech,
especially in wartime. When external threats are less severe, the
Court has been more tolerant of controversial speech.
The line between a new interpretation of the Constitu-
tion and constitutional change is diffi cult to defi ne. Clearly,
not every new direction taken by the Court or new interpre-
tation of the constitutional roles of the president or Congress
is comparable to a constitutional amendment. In one respect
a constitutional amendment is much more permanent than a
new interpretation. For example, the Supreme Court could not
unilaterally decide that 18- to 20-year-olds, women, and Afri-
can Americans no longer have the right to vote. Constitutional
amendments expanded the right to vote to include these groups,
and only further amendments could either expand or restrict
the right to vote. However, gradual changes in constitutional interpretation are
probably just as important as the amending process in explaining the Constitu-
tion’s ability to keep pace with the times.Conclusion
The debate between Tea Party supporters and opponents outlined in this chap-
ter’s introduction illustrates many of the chapter’s themes: the confl ictual nature
of politics established by the Constitution, multiple interpreters, and ambigu-
ous language. The separation of powers and the system of checks and balances
in our political system divide power to protect against majority tyranny. To Tea
Party supporters, we have strayed too far from the limited government roots of
the founding. Tea Party opponents claim that the Constitution centralized power
in the national government, while moving away from the state-centered Articles
of Confederation. Which side is right? The rather unsatisfying answer is: both
are correct. The Founders did create a system of limited government that was
intended to protect individual liberty from government tyranny, but at the same
time the Founders wanted a strong and eff ective government that could overcome
the limitations of state-centered government.THE EIGHTH AMENDMENT’S BAN
on “cruel and unusual
punishment” is generally viewed
as excluding capital punishment,
but the execution of juveniles
and the mentally retarded has
been found unconstitutional. This
picture shows the electric chair
in the Southern Ohio Correctional
Facility in Lucasville, Ohio.