Discourse.net

At first blush, the proposal at davidshcess.com [seen via Ascription is an Anathema to any Enthusiasm] sounds so sensible: Tired of originalists like Justice Scalia going on about how the Eighth Amendment only prohibits punishments that were cruel and unusual in 1791, and hence the death penalty (and maybe chopping off ears, and certainly stockading) are constitutional today? Want to do something about them? Just introduce a new constitutional amendment re-enacting the Eighth. No one would dare vote against it (are you for cruel and unusual punishment?) and it would re-set the clock to modern times (are you for cutting off ears?).

But in fact, it’s a rotten idea. It surrenders a key point of principle. I am, in the main, relatively sympathetic to at least a weak form of originalism. If words don’t have meanings that we can collectively ascribe to them, with some consistency over time, then constitutional government is a bit of a farce. I’d like to avoid that, for all that Senators Frist and Santorum are determined to make it difficult.

But in the originalist constitution I read, there’s not only play in the joints, but in some cases an invitation to evolve. It’s not everywhere. The requirement that the President be 35 isn’t a requirement that s/he have the relative wisdom and maturity of a 35 year old in 1783, or have lived an equivalent fraction of the average life expectancy. It’s that the person be 35. On the other hand, some parts of the Constitution do read like invitations to change with the times. (‘It is a Constitution we are expounding here’ after all.) And the cruel and unusual clause is definitely one of them. So there’s no need to re-set the clock on cruelty — it’s always ticking. And it would be wrong to provide such luscious ammunition to those who suggest otherwise.