9 ms·

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 th

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.
        lmm 10y ago
        Fully automatic weapons were unknown in the founders' time but it's possible (if difficult) for private individuals to own them. Whereas private individuals can no longer own even historically-accurate warships armed with cannons. There are all sorts of restriction that intrude on the natural interpretation of 2A (at least if we ignore the "being" clause, which the courts don't seem to interpret in the natural way at all), but I don't see a particular correlation with when a weapon was invented.
  - rayiner 10y ago
    > Do you also take the position that the second amendment applies only to arms that were available at the time? No, but I also don't think a textualist interpretation of the 8th amendment proscribes only a fixed set of punishments that existed in 1789. Words like "arms" and "punishments" denote categories--kinds of things grouped by shared characteristics. Someone in 1789 would be amazed by the technology of a modern shotgun, but would perceive it shared all the characteristics of what they thought of as "arms." Likewise, hydraulic presses did not exist in 1789, but someone from the time would have recognized putting a convict's appendages in such a machine as sharing the characteristics of what they thought of as "cruel and unusual punishment." But the death penalty did exist in 1789, and it wasn't considered a cruel and unusual punishment. So you're not just talking about fitting new things into existing definitions, but changing the definitions themselves to include things that were previously excluded.
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.

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.
      - lmm 10y ago
        Fully automatic weapons were unknown in the founders' time but it's possible (if difficult) for private individuals to own them. Whereas private individuals can no longer own even historically-accurate warships armed with cannons. There are all sorts of restriction that intrude on the natural interpretation of 2A (at least if we ignore the "being" clause, which the courts don't seem to interpret in the natural way at all), but I don't see a particular correlation with when a weapon was invented.
- rayiner 10y ago
  > Do you also take the position that the second amendment applies only to arms that were available at the time? No, but I also don't think a textualist interpretation of the 8th amendment proscribes only a fixed set of punishments that existed in 1789. Words like "arms" and "punishments" denote categories--kinds of things grouped by shared characteristics. Someone in 1789 would be amazed by the technology of a modern shotgun, but would perceive it shared all the characteristics of what they thought of as "arms." Likewise, hydraulic presses did not exist in 1789, but someone from the time would have recognized putting a convict's appendages in such a machine as sharing the characteristics of what they thought of as "cruel and unusual punishment." But the death penalty did exist in 1789, and it wasn't considered a cruel and unusual punishment. So you're not just talking about fitting new things into existing definitions, but changing the definitions themselves to include things that were previously excluded.

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.