The Bill of Rights is the foundation upon which personal rights are asserted, defended, retained, and constructed (or “reclaimed,” depending on the angle of one’s ontological parallax with respect to rights and legal realism). For better or worse, centuries of intimate lawmaking rests on compounding layers of linguistic interpretation. The outer limits of what constitutes “constitutionality” expand and contract for functional and normative reasons.

Functionally, technological and infrastructural innovation necessitate defining updates from the highest court in the land. For example, though the core values at the heart of the idea of a racially restrictive covenant in a housing development have existed forever, housing developments could not exist in such a fashion without the popularization of the railroad at the end of the nineteenth century and the postwar economic and social restructuring of American life that championed the “suburbs” in the middle of the twentieth century. As such, 1948 seems to be an anthropologically “appropriate” backdrop for Shelley v. Kramer.

Normatively, because these amendments are written with adjectives (what is a well regulated militia, an otherwise infamous crime?) and reflect our most basic assumptions about humanity, we ought to regularly mindfully reorganize the parameters we have set for ourselves so as to reflect the development of our most important zeitgeists. Consider Shelley yet again. A hypothetical United States in 1789 featuring railroads, suburbs, and economic surplus would not concern itself with the questions raised in the landmark housing case. Roughly halfway in time from ratification to Shelley, the United States began in earnest an ongoing protracted confrontation with its origins as a nation built on slavery. In this sense, the “frontier” of constitutional law necessitates both a contextual need for lawmaking and at least a semi-firm footing on which to take a moral stand. Except for a handful of special instances, the unchanging words of the Constitution have been and will remain the bedrock upon which debaters build up and rework our collective foundation.

At just sixteen words, the Eighth Amendment is the shortest of all twenty-seven amendments:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Cruel and unusual punishment represents one of the most subjective ideas at issue in the Constitution. The Eighth Amendment did not enumerate a list of then-outdated medieval forms of chastisement. Merriam-Webster defines “usual” as “accordant with use, custom, or habit.” Indeed, the concept of “unusual” entails necessarily the existence of some typical and ordinary context.

Constitutional ideals, particularly those as fundamental as “the scope of acceptable human punishment,” need the sort of latitude afforded by subjective verbiage in order to function as vehicles for benchmarking the decency of (our) humanity. The Constitution works best in this prismatic way when courts filter circumstances and attitudes through it to elicit hard rules, like “no racially restrictive covenants.” But punting from one philosophical conceit to another is unproductive. Consider Rochin v. California (1952), in which the Supreme Court held 8-0 that police violate suspects’ substantive due process rights inasmuch as their conduct “shocks the conscience.”

Herein lies the problem with prisons and the Eighth Amendment. In Turner v. Safley (1987), the Supreme Court established a four-factor test to determine the constitutionality of prison regulations:

(1) whether the regulation is rationally related to a legitimate and neutral governmental objective; (2) whether there are alternative avenues that remain open to the inmates to exercise the right; (3) the impact that accommodating the asserted right will have on other guards and prisoners, and on the allocation of prison resources; and (4) whether the existence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison officials.

Turner, 482 U.S. at 89-90, 107 S Ct. 2254. The test is, in practice, a balancing of a prisoner’s constitutional rights against the practical constraints of running a prison and “valid penological interests.”

The three philosophical underpinnings for punishment are retribution, deterrence, and rehabilitation. Traditional deterrence theory has been steadily rebuked by decades of criminological studies (https://nij.gov/five-things/pages/deterrence.aspx); while the prospect of “Prison” might be said to deter crime as a threshold matter, the types of regulations at issue in a Turner analysis cannot be said to move the needle one way or the other. Modern criminologists are more concerned with deterrence as it relates to recidivism—this connection is bound up in the cradle of rehabilitation.

In May 2011, the United Nations declared that internet access had become a fundamental human right (http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf). For 21st Century America, the U.N. Human Rights Council should be a moral barometer; there should be few clearer signals as to the temporal intersection of normative and technological advancement. Yet only four states allow even limited internet access in prisons (https://www.washingtonpost.com/news/the-intersect/wp/2015/02/09/the-case-for-internet-access-in-prisons/?noredirect=on&utm_term=.0d71a80f8566). Prisons are similar to most administrative agencies with respect to rulemaking: lawmakers create baseline parameters for which prison officials propagate regulations and directives with extensive latitude so as to account for the wild variance in circumstances from one facility to the next. Prison officials are reluctant to introduce new communication outlets; they cite the potential threatening or harassment of victims, the arrangement for deliveries of contraband, and the potential for fresh criminal conspiracy as penological justifications for keeping prisoners off the web (https://www.theguardian.com/us-news/2016/oct/03/prison-internet-access-tablets-edovo-jpay).

However, anyone who used a computer in middle school understands that these are easily curable concerns. Delaware has begun issuing tablet computers with limited internet access to prisoners as a part of a pilot program that has so far proven to be a success (https://delawarestatenews.net/news/prison-inmates-access-to-tablet-computers-to-be-expanded/). Knowing that lack of family communication and difficulty in securing employment are the two main causes of recidivism in the United States (https://delawarestatenews.net/news/prison-inmates-access-to-tablet-computers-to-be-expanded/), bringing prisoners up to date with modern standards of personal and professional human interaction should be a consensus decision. But for all our emphasis on evidence based policies and practices in the name of both deterrence and rehabilitation, we have a tough time shaking the apathetic malaise that lingers blindly in the wake of indignant retribution.