Scalia and cruel and unusual
The below is a quote from a speech given by Mr. Justice Scalia regarding the Constitution and what is cruel and unusual punishment.
“What was "cruel and unusual" and unconstitutional in 1791 remains that today. Executing someone under 18 was not unconstitutional in 1791, so it is not unconstitutional today. Now, it may be very stupid, it may be a very bad idea, just as notching ears, which was a punishment in 1791, is a very bad idea. But the people can eliminate those stupidities if and when they want. All you need is a legislature and the ballot box.”
When orginalists attempt to 'know' what the founders intended by defining language or by looking at law from 1791 alone, this is what we end up with, a form of judicial activism just as dangerous as the one Scalia denounces. How? Because it ignores the necessity of the judiciary. He is basically saying here for the most part he isn't necessary. Therefore, his form of activism is one that says Marbury v. Madison wasn't necessary, it is one that doesn't see a need to say that institutionalized racism must come to an end, and that doesn't see that children are less culpable than adults when they commit horrible crimes.
Back to the original quote though,what he forgets, I guess, is that this was a federalist system even then and laws varied from state to state. To illustrate this and the problems with originalism let's all define these words when put together: No law. Now write down your definition and put it in the comments section. No changing it when you see someone else's, that would be scandalous.
“What was "cruel and unusual" and unconstitutional in 1791 remains that today. Executing someone under 18 was not unconstitutional in 1791, so it is not unconstitutional today. Now, it may be very stupid, it may be a very bad idea, just as notching ears, which was a punishment in 1791, is a very bad idea. But the people can eliminate those stupidities if and when they want. All you need is a legislature and the ballot box.”
When orginalists attempt to 'know' what the founders intended by defining language or by looking at law from 1791 alone, this is what we end up with, a form of judicial activism just as dangerous as the one Scalia denounces. How? Because it ignores the necessity of the judiciary. He is basically saying here for the most part he isn't necessary. Therefore, his form of activism is one that says Marbury v. Madison wasn't necessary, it is one that doesn't see a need to say that institutionalized racism must come to an end, and that doesn't see that children are less culpable than adults when they commit horrible crimes.
Back to the original quote though,what he forgets, I guess, is that this was a federalist system even then and laws varied from state to state. To illustrate this and the problems with originalism let's all define these words when put together: No law. Now write down your definition and put it in the comments section. No changing it when you see someone else's, that would be scandalous.
posted by Rugo at 6:44 PM
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