Has Scalia Evolved on the Eighth?


Occasional reason contributor Steven Kurtz says why yes he has.

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  1. Wow.

    You know, despite what many on the matter, there is no mandated method for interpreting the Constitution, nor do even two who interpret it similarly come out with the same outcome. I happen to be a textualist myself like Scalia, but I am well aware of the fact that when passed by the Congress, numerous Congressmen commented on the fluidity and subjectivity of the Eighth Amendment.

  2. To me it says that punishment can be cruel, or it can be unusual. It is only punishment that is both cruel AND unusual that is forbidden.

    That’s the way uh huh, uh huh, I like it…

  3. Is punishment itself not cruel? If the original text is not the guide and goal, we await shifting standards to overtake the majority and vote/legislate that murderers need love rather than imprisonment.

  4. I believe that the cruel/unusual punishment mentioned in the constitution has to do with being forced to listen to preachers on Sunday, putting fornicators and mastubators in stocks,and forcing elderly white men to listen to rap music when they are stopped at a traffic light. I doubt that it had much to do with offing juvinile murderers. How ever, I do believe in the constitution and the findings of the court-every time they change their mind i STILL obey. To that end I hereby promise that I will not personally execute a juvinile murderer although I will kill the bastard if he tries to harm me and mine.

  5. To me it says that punishment can be cruel, or it can be unusual. It is only punishment that is both cruel AND unusual that is forbidden.

    Interesting semantic argument! I see Texas is doing its part to circumvent this rule by making the death penalty as usual as possible.

  6. Scalia may not be 100% consistent, but he’s by far the most consistent justice. Considering the system is built on precedent, I find that somewhat important.

  7. William Saletan had a nice piece which addresses Scalia’s inconsistency on the Eighth. This just seems to reflect the natural difficulty the Eighth poses for someone who wants to be an originalist, I think. I cannot see how “cruel and unusual” can help but be an evolving standard.


  8. Evolve?!? Evolve?!? I’ll have you know, Republicans do not “evolve”. Nor does anything else, ever. Not even a teeny bit.

    Someone needs to spend some time in the re-education camps — uh, I mean, church.

  9. By original intent standards, wouldn’t electrocution and lethal injection be unconstitutional? They would have been very unusual by 1791 standards.

  10. Yes! Electrocution would have been an unusual punishment. Can’t you just see it now? Well, looks like a storm coming up. Ben? Think you can get that kite with the wire line going up there so we can get some of that electricity stuff? We’re gonna have a key to stick up this murderers ass too. Betcha that’ll fry his balls, huh?

    Outside the slammer walls standing in the rain is a bunch of bleeding hearts praying and crying and carrying signs reading ” STOP THIS CRUEL AND UNUSUAL PUNISHMENT” The poor bastard with the key up his ass has a lawyer that is working pro bono ( a singer was later named in his honor ) trying to get Judge Long hand to stop the madness. In the meantime a strike of lightning and a clap of thunder and damn if it didn’t fry the poor bastards balls. The press could see the burnt balls and smell the chared scotum and immediately sent a dispatch by carrier pigeon to their respective editors ( who they didn’t respective worth a damn) pointing out that this was cruel punishment for someoine who had only killed his mother, raped Martha Washington, and stole two pigs. It was only becuse he was raised by an English couple that he had commited these crimes and didn’t deserve such a fate. He should have been burnt at the stake as they do up in Boston.

  11. Oh, man. I just can’t get past that disturbing visual of the guy with a key up his ass. I’ll never enjoy a trip to the Franklin Institute again.

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