You seem to agree that the language of the Constitution should be interpreted in terms of contemporary values, so that what the words "cruel and unusual punishment" include should change over time.
My argument is that the principle directly stated in the Constitution is that cruel and unusual punishment should not be allowed. But the Constitution does not state what cruel and unusual punishment is. Any such phrase is left open to interpretation. Other cases where interpretation has changed over time are not left so open, because the words of the Constitution are more specific. For example the 2nd amendment. - "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." - The right of the people...shall not be infringed". That is very direct. It states that the people have a right to keep and bear arms
and that this right shall not be infringed. Yes there is a phrase about "a well regulated militia" which effectively serves as a reason or argument for not infringing on the right to keep and bear arms, but the active clause of that statement that actually sets a specific mandate, is about the right of the people. It never says the "right of the militia".
Words have certain meanings. Usage does change over time, but I am not aware of any major controversy about the Constitution that is the result of a change in definition of a specific word. The words cruel, unusual and punishment mean the same things now that they did in 1776. The combined phrase would also have the same definition, and that definition should be applied. What has changed is not the meanings of the words but opinion of the punishments. Punishments that are considered "unusual" are almost certainly going to be different, because if people start frequently being punished a certain way it is no longer unusual by definition.
As far as the equal protection clause, I just looked it up and it is very specific. Anyone who is a person and a citizen of the United States is entitled to equal protection of the law. Unless you can argue that women were not persons or citizens they not only are now, but where then constitutionally entitled to equal protection of the law. In general I think the constitution was more strictly followed in the 19th century then today, but this is one case where I think it is being followed now and when it was violated regularly then. One problem with this clause
however it is probably too universal. Children are persons and citizens too but following the words of this clause they would also have full and equal rights under the law. That children would not have the same full rights of adults was most likely taken for granted by the writers of this clause to the extent that no one thought of actually writing it down. An attempt could be made to finesse this by looking at the "person" not in the current moment but over the whole of thier life span and saying that all persons shall have x rights when they are currently a child and x+y rights when they are currently and adult; but this strikes me as a bit like Bill Clinton's "that depends on what the definition of is is".
The problem is that few if any Supreme Court jurists say that they are adding flexibility that is not in the document; they will say they are just finding the flexibility that is in there that is responsive to societal changes.
My answer to that is simple. They are wrong. Of course since they have the power in these situations the practical effect is the same as if they were right.
That said, I personally agree that the court has gone too far in many cases. Whatever one things of abortion, Roe v. Wade is a very badly reasoned decision.
Agreed.
My problem is that once you accept the concept of flexibility, you open a door, and it is very difficult to present any reasoned argument for how far the door should open and how far is too far.
In some cases the door is open all ready by the fact that some constitutional amendment or clause is unclear in its meaning. In other cases (like "cruel and unusual punishment") the words have a clear meaning, and that meaning should be followed, but how certain actions fit in to the meanings can be changing or unclear. What is unusual in one time and place is not unusual in another even without a new interpretation of the word. "Cruel" is a bit less flexible but deciding if something is cruel or not can not help but be a matter of opinion or interpretation, because it is not spelled out in the Constitution.
Tim |
