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It's because Europe doesn't interpret the 8th Amendment, the US Supreme Court does. And here, there's a really high bar for cruel and unusual. To the point wh

It's because Europe doesn't interpret the 8th Amendment, the US Supreme Court does. And here, there's a really high bar for cruel and unusual. To the point where as long as it takes place in a prison, it seems to be okay. I don't like or agree with it, but the legal meaning of the 8th Amendment is not obvious from its text. That might be the first sign that we're getting it wrong, actually.

rayiner 10y ago
The meaning is pretty obvious considering that the folks who wrote the damn thing had capital punishment for numerous crimes and still practiced branding, public whipping, etc. as punishments. We just don't like the implications of the real meaning and look for ways around it.
- SmellTheGlove 10y ago
  The text reads >Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. What you're referring to is the original meaning. There are other principles of interpretation in the US judiciary. The Supreme Court has shifted from the original meaning, given that there are some restrictions on capital punishment (mostly based on age and mental handicap). Most of that development has been from the mid-80's to today. However, to further address your point, I don't think the meaning is obvious from the text. In particular, the word "cruel" in relationship to "punishment" is not obvious to a layman.
  - rayiner 10y ago
    If you're reading Darwin's work, you don't look at a 20th century dictionary to figure out what he meant. The question is, what would the phrase "cruel and unusual punishment" have meant to people when those words were written?
    - SmellTheGlove 10y ago
      This is the law, though, not scientific research. Getting it wrong on reading Darwin is relatively inconsequential. Getting the law wrong impacts peoples' lives. That is why you have different theories of constitutional interpretation. It's more than what it means or what it meant, some will delve into should it mean what it meant.
    - lmm 10y ago
      Do you also take the position that the second amendment applies only to arms that were available at the time? A constitution is not a codification of objective facts but of principles and processes for resolving disputes between people. To my mind it seems more likely that "cruel and unusual punishment" means "any punishment cruel and unusual according to community standards" than "this specific list of punishments".
      - tptacek 10y ago
        It more or less does apply only to arms that were available at the time. Is there a type of weapon available to the armies of the founders that was not available to individuals at the time of the founders? Because there are all sorts of weapons available to our armies that aren't available to individuals, despite 2A.
        AnimalMuppet 10y ago
        Some private ships had cannons, at least by the time of the War of 1812. I don't think there was anything bigger than cannons at the time. So, yes, private individuals (at least ones wealthy enough to own ships) had access to all the weapons of the day.
        tptacek 10y ago
        To me, it follows that we already accept the notion of 2A applying only to the kinds of weapons known to the founders. We might make exceptions for some weapons, but for the most part, weapons entirely alien to the founders are illegal today despite 2A.
  - wahern 10y ago
    I think you may be conflating original intent and original meaning. Original intent is historically how the constitution has been been interpreted by courts, at least once ambiguity in the plaintext has been found. Original meaning is a modern approach propounded most famously by Justice Scalia. The difference is that original meaning focuses on the definition of words and phrases as understood at the time of drafting or ratification, and in the relevant context in which they're used, regardless of intent or purpose. It's like an abstract version of plaintext but which is supposed to overcome (with a suitable amount of handwaving) the deficiencies of a plaintext, literalist approach. Original intent, by contrast, focuses on what the drafters or legislatures thought the law would accomplish. The literal meaning and the original meaning are both strong evidence and often dispositive, but they're hardly exclusive. Original meaning is supposed to be a more concrete examination, less susceptible to contemporary political prejudices and likely to be more consistent over time. But I think in actuality that has proven false. Language is far more flexible than Scalia and similarly-minded jurists believe. Lawmakers regularly write statutes that either rely on judicial precedent, or that put the onus on courts to decide material issues, especially when ambiguity and plausible deniability is politically expedient. Certainly there are indisputable examples of this in the constitution. For these and many more reasons, the functions of a judge simply cannot be reduced to such mechanical approaches. And they probably shouldn't be. Many of the drafters of the constitution were lawyers. Most were versed, more or less, in the common law. The drafters used common law phrases; many of which had _already_ undergone an evolution in their meaning and application; many of which were de novo inventions of English courts altogether. They clearly used ambiguity to their advantage when reaching consensus on clearer language was difficult or inconvenient. So we'd be naive to think that their view of the common law was of a static, unchanging approach, or that they didn't expect courts to take license. Scalia would probably admit much of that. (He certainly admitted some of that in his many essays on the subject.) But in his view even if the drafters wanted courts to use traditional approaches to statutory interpretation, that's been a failed experiment. In his view, preservation of the higher ideals of the constitution, like separation of powers and democracy, demand that courts use original meaning, even if it subverts original intent in the particular. I disagree with Scalia roundly. But whether you agree or disagree or fall somewhere in the middle, the fact of the matter is that original meaning is a very modern approach. By contrast, only extreme proponents of thea "living constitution" can be considered wholly modern; in some understandings "living constitution" is just a recognition and embrace of the reality of constitutional interpretation and application. Scalia's application of original meaning changed so much over the decades that he's a prime example of the inherently dynamic nature of the business and the rules it produces. Nonetheless, I suppose we could say that his arguments have effectively shifted the "Overton window". Scalia managed to convince even ardent liberals like Ginsburg that traditional approaches to constitutional interpretation used during the 18th, 19th, and much of the 20th centuries were inappropriate. That there was a need to "return to the text", as-if courts somehow had ever ceased doing that. Scalia often made unfounded or poorly researched historical claims, and most jurists have already internalized much of it. Scalia is hardly unique in having that effect; I spent half of law school using Google Scholar and other historical databases disproving various historical claims in legal decisions and treatises. Most people don't even realize that there were multiple transcriptions of old decisions, and sometimes they conflicted. Which one was put into a legal treatise was sometimes the real inflection point in the law, not the legal opinion itself. But his effect is unique, I think, in shifting the entire judiciary to the right. Usually such things are a mixed bag from a political perspective.
- coldtea 10y ago
  >We just don't like the implications of the real meaning and look for ways around it. Or, you know, the real meaning has not stood the test of time, and we should not hold centuries old texts as holy scriptures, like fundamentalists who try to hold close to the "original" intent? Those guys (always guys) also had slaves and did "cruel and unusual punishments" to them on a whim, for another example...
  - rayiner 10y ago
    You've got it backwards. It's the folks opposing the death penalty,[1] that are arguing the words on the page are so sanctified they empower the unelected judiciary to overturn the results of the democratic process. Given that, it's kinda relevant what those words on the page actually mean. What did people agree to when they committed to letting these words on a page curtail their democratic prerogatives? [1] I oppose the death penalty as it is used today. Making an example of psycho serial murderers is pointless, because it's not like that conduct can be deterred.
    - SmellTheGlove 10y ago
      Are you American? Just curious on your perspective. Those "arguing the words on the page are so sanctified" I take for you to mean are originalists/textualists. Most people in that camp are not against the death penalty. Bigger picture, the words on the page DO overturn the results of the democratic process. The US holds the Constitution as its highest law, and any law implemented (democratic process) cannot conflict. If it does, meaning the (unelected) judiciary interprets the law that way, then it is invalid. But that's viewing checks and balances only one way. The executive and legislature (both democratically elected) also check the judiciary - they appoint the Federal judiciary and confirm, respectively. Those appointed judges may choose to interpret the Constitution in a more modern context, while others may stick to originalist thought. What I think you're missing is that it is the prerogative of the judiciary to choose how to interpret. There is nothing in the Constitution itself that mandates originalism, pragmatism, or anything in between, and given our system of government the only place to specify such a thing would be in the Constitution itself. It wasn't there in the beginning and we've made no such amendment. And we probably wouldn't, because judicial independence is a very important principle.
coldtea 10y ago
>I don't like or agree with it, but the legal meaning of the 8th Amendment is not obvious from its text. That might be the first sign that we're getting it wrong, actually. Exactly. Old those BS "needs to be interpreted" Amendments and old laws are really problematic (including the "well-armed militia thing"). Law should be clear, not some divine (or "founding father") decree that gets interpreted according to the whims of those in power.
- SmellTheGlove 10y ago
  It's bigger than that, though. Me (or you) disagreeing doesn't make us right. A lot of the stability and rule of law in the US is attributed to having a stable constitution that has stood the test of time. On certain issues, its immutability has been bad or inefficient, but in the long run it's helped with our stability. For all of the shit our courts take, we have the most stable, transparent and probably fair (meaning impartial) judiciary in the entire world. A lot of that is driven by the originalist/textualist/pragmatists/intentionalist debate. None of them are entirely right, either. That's the nature of law and trying to achieve the "right" outcome.
- soylentcola 10y ago
  But as a counterpoint, that room for interpretation, while allowing room for "bad" readings of law is also what allows some space for the same law to be adapted to changing circumstance rather than thrown out entirely. In only a few generations the world (and US society specifically in this case) has changed quite a bit from when this stuff was set down. If it was very specific but tied to the prevailing attitudes and situations of the 1700s or 1800s, it would be like a "lite version" of the folks arguing that we should be following biblical law or sharia law as written hundreds or thousands of years ago. There needs to be at least some room for interpretation and adaptation in order to avoid a system of law that does not reflect the actual people subject to it.
jomamaxx 10y ago
Europeans have put a man who mass murdered 90 teenagers in cold blood, in a hotel. He has great meals, internet access, healthcare, video games, internet, porn, he can marry. A music room. Scandinavian justice is a failure. I was at a dinner in Denmark, speaking to this guy next to me for a while. My brother later pointed out this guy had murdered someone just a couple of years ago, served a light sentence and was now in a half-way house. I was revolted. I'd suggest that in many cases - criminals can be readily reintroduced into society without much intervention. Some therapy, the fact they know they are being watched, blocking them from triggers etc. - and they likely won't rescind ... But is it moral to allow someone who murdered your children on the streets without punishment because Scientifically we can establish that they are highly unlikely to kill again? Europe is in some ways morally corrupt, as America is in others. Anders Brevik should be executed, it is the moral thing to do. I would not advocate torture, but if found out someone were torturing him, I would have no sympathy. Contrast that to the American system wherein a lot of people are executed and we know that many of them were innocent. It seems basic justice is difficult to hand out ... As far as 'trial by jury' - I'd rather a trial by a judge - ore better - a panel of judges... because one of them always has an agenda.
- kiba 10y ago
  Anders Brevik should be executed, it is the moral thing to do. You say Scandinavian justice is morally corrupt. How? Why do I care about a person who's not going to kill someone in the future? If anything, I care about intervening before someone commit a crime so that it won't be too little too late. There are thousand of things to focus our attention and time on that has nothing to do with criminal intent. Cancer and heart attack will cause harm and kill you without any moral intention. These are worth spending money and time on, not some harmless humans. If all humans can be rendered 'scientifically' unable to murder even a fly without attendant system of prison and punishment, why do we care about revenge so much?
- tim333 10y ago
  You seem upset by the Norwegians treatment of murderers. I see the US murder rate is about 6 times that in Norway. I'm not sure that fits with the US system being better.

rayiner 10y ago

The meaning is pretty obvious considering that the folks who wrote the damn thing had capital punishment for numerous crimes and still practiced branding, public whipping, etc. as punishments. We just don't like the implications of the real meaning and look for ways around it.

SmellTheGlove 10y ago
The text reads >Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. What you're referring to is the original meaning. There are other principles of interpretation in the US judiciary. The Supreme Court has shifted from the original meaning, given that there are some restrictions on capital punishment (mostly based on age and mental handicap). Most of that development has been from the mid-80's to today. However, to further address your point, I don't think the meaning is obvious from the text. In particular, the word "cruel" in relationship to "punishment" is not obvious to a layman.
- rayiner 10y ago
  If you're reading Darwin's work, you don't look at a 20th century dictionary to figure out what he meant. The question is, what would the phrase "cruel and unusual punishment" have meant to people when those words were written?
  - SmellTheGlove 10y ago
    This is the law, though, not scientific research. Getting it wrong on reading Darwin is relatively inconsequential. Getting the law wrong impacts peoples' lives. That is why you have different theories of constitutional interpretation. It's more than what it means or what it meant, some will delve into should it mean what it meant.
  - lmm 10y ago
    Do you also take the position that the second amendment applies only to arms that were available at the time? A constitution is not a codification of objective facts but of principles and processes for resolving disputes between people. To my mind it seems more likely that "cruel and unusual punishment" means "any punishment cruel and unusual according to community standards" than "this specific list of punishments".
    - tptacek 10y ago
      It more or less does apply only to arms that were available at the time. Is there a type of weapon available to the armies of the founders that was not available to individuals at the time of the founders? Because there are all sorts of weapons available to our armies that aren't available to individuals, despite 2A.
      - AnimalMuppet 10y ago
        Some private ships had cannons, at least by the time of the War of 1812. I don't think there was anything bigger than cannons at the time. So, yes, private individuals (at least ones wealthy enough to own ships) had access to all the weapons of the day.
        tptacek 10y ago
        To me, it follows that we already accept the notion of 2A applying only to the kinds of weapons known to the founders. We might make exceptions for some weapons, but for the most part, weapons entirely alien to the founders are illegal today despite 2A.
- wahern 10y ago
  I think you may be conflating original intent and original meaning. Original intent is historically how the constitution has been been interpreted by courts, at least once ambiguity in the plaintext has been found. Original meaning is a modern approach propounded most famously by Justice Scalia. The difference is that original meaning focuses on the definition of words and phrases as understood at the time of drafting or ratification, and in the relevant context in which they're used, regardless of intent or purpose. It's like an abstract version of plaintext but which is supposed to overcome (with a suitable amount of handwaving) the deficiencies of a plaintext, literalist approach. Original intent, by contrast, focuses on what the drafters or legislatures thought the law would accomplish. The literal meaning and the original meaning are both strong evidence and often dispositive, but they're hardly exclusive. Original meaning is supposed to be a more concrete examination, less susceptible to contemporary political prejudices and likely to be more consistent over time. But I think in actuality that has proven false. Language is far more flexible than Scalia and similarly-minded jurists believe. Lawmakers regularly write statutes that either rely on judicial precedent, or that put the onus on courts to decide material issues, especially when ambiguity and plausible deniability is politically expedient. Certainly there are indisputable examples of this in the constitution. For these and many more reasons, the functions of a judge simply cannot be reduced to such mechanical approaches. And they probably shouldn't be. Many of the drafters of the constitution were lawyers. Most were versed, more or less, in the common law. The drafters used common law phrases; many of which had _already_ undergone an evolution in their meaning and application; many of which were de novo inventions of English courts altogether. They clearly used ambiguity to their advantage when reaching consensus on clearer language was difficult or inconvenient. So we'd be naive to think that their view of the common law was of a static, unchanging approach, or that they didn't expect courts to take license. Scalia would probably admit much of that. (He certainly admitted some of that in his many essays on the subject.) But in his view even if the drafters wanted courts to use traditional approaches to statutory interpretation, that's been a failed experiment. In his view, preservation of the higher ideals of the constitution, like separation of powers and democracy, demand that courts use original meaning, even if it subverts original intent in the particular. I disagree with Scalia roundly. But whether you agree or disagree or fall somewhere in the middle, the fact of the matter is that original meaning is a very modern approach. By contrast, only extreme proponents of thea "living constitution" can be considered wholly modern; in some understandings "living constitution" is just a recognition and embrace of the reality of constitutional interpretation and application. Scalia's application of original meaning changed so much over the decades that he's a prime example of the inherently dynamic nature of the business and the rules it produces. Nonetheless, I suppose we could say that his arguments have effectively shifted the "Overton window". Scalia managed to convince even ardent liberals like Ginsburg that traditional approaches to constitutional interpretation used during the 18th, 19th, and much of the 20th centuries were inappropriate. That there was a need to "return to the text", as-if courts somehow had ever ceased doing that. Scalia often made unfounded or poorly researched historical claims, and most jurists have already internalized much of it. Scalia is hardly unique in having that effect; I spent half of law school using Google Scholar and other historical databases disproving various historical claims in legal decisions and treatises. Most people don't even realize that there were multiple transcriptions of old decisions, and sometimes they conflicted. Which one was put into a legal treatise was sometimes the real inflection point in the law, not the legal opinion itself. But his effect is unique, I think, in shifting the entire judiciary to the right. Usually such things are a mixed bag from a political perspective.
coldtea 10y ago
>We just don't like the implications of the real meaning and look for ways around it. Or, you know, the real meaning has not stood the test of time, and we should not hold centuries old texts as holy scriptures, like fundamentalists who try to hold close to the "original" intent? Those guys (always guys) also had slaves and did "cruel and unusual punishments" to them on a whim, for another example...
- rayiner 10y ago
  You've got it backwards. It's the folks opposing the death penalty,[1] that are arguing the words on the page are so sanctified they empower the unelected judiciary to overturn the results of the democratic process. Given that, it's kinda relevant what those words on the page actually mean. What did people agree to when they committed to letting these words on a page curtail their democratic prerogatives? [1] I oppose the death penalty as it is used today. Making an example of psycho serial murderers is pointless, because it's not like that conduct can be deterred.
  - SmellTheGlove 10y ago
    Are you American? Just curious on your perspective. Those "arguing the words on the page are so sanctified" I take for you to mean are originalists/textualists. Most people in that camp are not against the death penalty. Bigger picture, the words on the page DO overturn the results of the democratic process. The US holds the Constitution as its highest law, and any law implemented (democratic process) cannot conflict. If it does, meaning the (unelected) judiciary interprets the law that way, then it is invalid. But that's viewing checks and balances only one way. The executive and legislature (both democratically elected) also check the judiciary - they appoint the Federal judiciary and confirm, respectively. Those appointed judges may choose to interpret the Constitution in a more modern context, while others may stick to originalist thought. What I think you're missing is that it is the prerogative of the judiciary to choose how to interpret. There is nothing in the Constitution itself that mandates originalism, pragmatism, or anything in between, and given our system of government the only place to specify such a thing would be in the Constitution itself. It wasn't there in the beginning and we've made no such amendment. And we probably wouldn't, because judicial independence is a very important principle.

coldtea 10y ago

>I don't like or agree with it, but the legal meaning of the 8th Amendment is not obvious from its text. That might be the first sign that we're getting it wrong, actually. Exactly. Old those BS "needs to be interpreted" Amendments and old laws are really problematic (including the "well-armed militia thing"). Law should be clear, not some divine (or "founding father") decree that gets interpreted according to the whims of those in power.

SmellTheGlove 10y ago
It's bigger than that, though. Me (or you) disagreeing doesn't make us right. A lot of the stability and rule of law in the US is attributed to having a stable constitution that has stood the test of time. On certain issues, its immutability has been bad or inefficient, but in the long run it's helped with our stability. For all of the shit our courts take, we have the most stable, transparent and probably fair (meaning impartial) judiciary in the entire world. A lot of that is driven by the originalist/textualist/pragmatists/intentionalist debate. None of them are entirely right, either. That's the nature of law and trying to achieve the "right" outcome.
soylentcola 10y ago
But as a counterpoint, that room for interpretation, while allowing room for "bad" readings of law is also what allows some space for the same law to be adapted to changing circumstance rather than thrown out entirely. In only a few generations the world (and US society specifically in this case) has changed quite a bit from when this stuff was set down. If it was very specific but tied to the prevailing attitudes and situations of the 1700s or 1800s, it would be like a "lite version" of the folks arguing that we should be following biblical law or sharia law as written hundreds or thousands of years ago. There needs to be at least some room for interpretation and adaptation in order to avoid a system of law that does not reflect the actual people subject to it.

jomamaxx 10y ago

Europeans have put a man who mass murdered 90 teenagers in cold blood, in a hotel. He has great meals, internet access, healthcare, video games, internet, porn, he can marry. A music room. Scandinavian justice is a failure. I was at a dinner in Denmark, speaking to this guy next to me for a while. My brother later pointed out this guy had murdered someone just a couple of years ago, served a light sentence and was now in a half-way house. I was revolted. I'd suggest that in many cases - criminals can be readily reintroduced into society without much intervention. Some therapy, the fact they know they are being watched, blocking them from triggers etc. - and they likely won't rescind ... But is it moral to allow someone who murdered your children on the streets without punishment because Scientifically we can establish that they are highly unlikely to kill again? Europe is in some ways morally corrupt, as America is in others. Anders Brevik should be executed, it is the moral thing to do. I would not advocate torture, but if found out someone were torturing him, I would have no sympathy. Contrast that to the American system wherein a lot of people are executed and we know that many of them were innocent. It seems basic justice is difficult to hand out ... As far as 'trial by jury' - I'd rather a trial by a judge - ore better - a panel of judges... because one of them always has an agenda.

kiba 10y ago
Anders Brevik should be executed, it is the moral thing to do. You say Scandinavian justice is morally corrupt. How? Why do I care about a person who's not going to kill someone in the future? If anything, I care about intervening before someone commit a crime so that it won't be too little too late. There are thousand of things to focus our attention and time on that has nothing to do with criminal intent. Cancer and heart attack will cause harm and kill you without any moral intention. These are worth spending money and time on, not some harmless humans. If all humans can be rendered 'scientifically' unable to murder even a fly without attendant system of prison and punishment, why do we care about revenge so much?
tim333 10y ago
You seem upset by the Norwegians treatment of murderers. I see the US murder rate is about 6 times that in Norway. I'm not sure that fits with the US system being better.