The Eight Amendment of the USA Constitution forbids the imposition of "cruel and unusual punishment".

Can Congress enact a statute which says "The death penalty is cruel and unusual"?

Would that statute be a binding interpretation of the federal constitution, which is the supreme law of the land?

Would that statute make States statutes and States Constitutions that allows the death penalty null and void as infringing on the Federal Constitution, as interpreted by this new Congress's statute?

2 Answers 2


To answer the question that you asked, no, Congress cannot pass a law declaring what the interpretation of the US Constitution is. Only the US Supreme Court can give a definitive interpretation of the Constitution. Congress can play a role in passing a constitutional amendment that nails down the interpretation of the US Constitution. It can also change federal statutes that allow the death penalty in federal cases, irrespective of the 8th Amendment. Congress could experiment with purse-string control over states ("any state that receives federal money shall do X"), but it is most likely that SCOTUS would strike down such a law as unconstitutional.

  • 1
    SCOTUS didn’t strike down tying federal road funding to raising the drinking age
    – Dale M
    Nov 25, 2020 at 19:53
  • Because they found that it was not coercive: that is how Congress could experiment, to decide what level of funding constitutes commanding the states.
    – user6726
    Nov 25, 2020 at 20:44
  • 1
    Lower courts can also provide binding interpretations of the constitution subject only to review by higher courts that are binding in their jurisdictions.
    – ohwilleke
    Nov 25, 2020 at 22:48

Congress can change or outlaw any punishment for any law it enacts.

In fact, Congress has stricken several forms of corporal punishment already by statute, which had been all common when the constitution was adopted.

The process is to simply remove the relevant article that allows a punishment from the statutes. Judical Corporal Punishment - flogging - had been deemed appropriate by the founding fathers: Washington requested to be allowed to flog soldiers 500 times because the next step after 100 was putting them to death and Jefferson had proposed to castrate rapists. In fact, better read all of Thomas Jefferson: *A Bill for Proportioning Crimes and Punishments (1778) - the guy had some ideas that nowadays are seen very cruel and unusual, among them death by hanging and poisoning poisoners.

It's attested that both Lincoln and Roosevelt did advocate to flog men who beat their wives, and Georgia had flogging in the early 1950s. But do we find that punishment in the books still? No, it has been stricken from the books, piece by piece: Delaware used to have it quite long. A 1964 NYT article describes that flogging seems to be "at an end":

It now seems probable that, like the pillory, which went out of style here [Delaware] in 1905, the whipping post will be banished by the courts before further sentences can be carried out.


The legislative mood [in support of flogging] was reflected in 1961 when the General Assembly voted to repeal its own 1958 law abolishing capital punishment [including flogging], and then overrode Gov. Elbert N. Carvel's veto of the reinstatement measure.

However, it took till 1972 to actually get whipping abolished, as Delaware Times reports by replacing large swaths of the criminal code:

The 1971-72 legislature saw the birth of the Coastal Zone Act and the death after 350-plus years of the Delaware whipping post.


One major accomplishment of the 1972 second session stands firm: a new criminal code for Delaware. It’s almost exactly 45 years since Peterson signed the code into law at Buena Vista at 9 a. m. July 1, 1972. The code became effective a year later and meant the end of Delaware’s infamous whipping post.

  • But congress cannot enforce an interpretation of "cruel and unusual" on the states.
    – phoog
    Dec 3, 2020 at 1:24

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