Our Progressively Brutal Constitution: A Legal Expressivist Account of the Excessive Force Doctrine

The Constitution forbids some forms of physical violence. However, the scope of its protection depends on the legal status of the person subjected to the violence. The Fourth Amendment protects a person outside the criminal legal system from a state actor’s “objectively unreasonable” force. A pre-trial detainee has a similar, though weaker, right under the Due Process Clause.

But after conviction, a person’s right of protection from state violence has nearly vanished: the Eighth Amendment prohibits only force applied “maliciously and sadistically for the very purpose of causing harm.” Rather than meaningfully limiting state violence, this doctrine constructs a constitutional framework where legal protections diminish as a person moves deeper into the criminal legal system. In doing so, it exposes a progressive brutality embedded in our constitutional order. This Article makes two primary contributions. First, it reconceptualizes the constitutional doctrine governing state violence not as a series of single- Amendment-focused decisions but as one interconnected doctrine.

This doctrine is inextricably intertwined with the criminal legal system, operating within what I call the “policing-punishment pathway”—the continuum of state violence from initial police contact to post-conviction imprisonment. Second, this Article is the first to examine the force doctrine through a legal expressivist lens. In doing so, it contends that the law of force not only reflects but also reinforces a social hierarchy of bodily worth. Though framed as a safeguard for individual rights, the constitutional force doctrine rationalizes and entrenches the danger and dehumanization at the core of the criminal legal system.

This Article calls for either an honest reckoning of the structural violence embedded in our constitutional framework—or a radical reimagining of the doctrine to reject its brutal logics.