Originalism and the Common Law Infancy Defense
67 Am. U. L. Rev. 1577 (2018).
*Professor of Law, Antonin Scalia Law School, George Mason University. The author thanks Renée Lerner, Nelson Lund, and participants at Anatomy of Justice: An Honest Conversation on the Criminal Justice System, a symposium held at the American University Washington College of Law on November 10, 2017.
Justice Thomas and the late Justice Scalia consistently argued that the original meaning of the Eighth Amendment was to foreclose only those modes or acts of punishment that were considered cruel and unusual at the time the Bill of Rights was adopted. With respect to juvenile criminal responsibility, this would mean that the Constitution contemplated an infancy defense no broader than what existed in 1791. Yet the common law infancy defense, as sketched by originalist judges, seems barbaric. It treated all fourteen-year-olds as adults, and it permitted the imposition of punishment—even capital punishment—on offenders as young as seven.
This Article argues that the common law infancy defense was more nuanced than modern observers often recognize. With respect to misdemeanors, the defense was more broadly applicable than is typical today. Even with respect to felonies, offenders under the age of fourteen could be found liable only after an individualized inquiry as to their capacity to distinguish right from wrong. The eighteenth century culture and common law had higher expectations of juvenile abilities than prevail today; and not surprisingly, young people proved more mature than modern adolescents, who are told repeatedly that they are frail and vulnerable. This Article speculates on how the original meaning of the Eighth Amendment, assuming it incorporates the common law approach to juvenile responsibility, might be applied to modern conditions, given the diminished maturity of young people. However, the Article questions whether young people today are as immature as advertised; indeed, the study of the common law infancy defense could prompt a reconsideration of contemporary attitudes about the capacities of young people.