From a Reuters report:
A federal appeals court judge on Wednesday argued that the conservative-majority U.S. Supreme Court would have grounds to revisit its interpretation of the U.S. Constitution's prohibition on cruel and unusual punishment and "return to the text and original meaning of the 8th Amendment."
In a speech delivered at Harvard Law School, U.S. Circuit Judge Thomas Hardiman, an appointee of Republican former President George W. Bush on the 3rd U.S. Circuit Court of Appeals, argued that the high court should abandon a decades-old legal test for deciding if a punishment was unconstitutional.
The Supreme Court in a series of cases starting in 1952 interpreted the 8th Amendment's prohibition on cruel and unusual punishment based on what opinions described as the "evolving standards of decency that mark the progress of a maturing society."
But Hardiman told the Harvard chapter of the conservative Federalist Society that the standard is a "contrived ratchet" that has fueled a "runaway train of elastic constitutionalism" giving judges too much power to invalidate laws in favor of defendants.
"Its inscrutable standards require judges to ignore the law as written in favor of their own moral sentiments," he said. "The only constant is that more and more laws adopted by the people's representatives have been nullified." …
Agreed. Or at least, those precedents should not be extended. I'm not entirely sure what cruel and unusual originally meant (originalist scholars in the field have some varying views) but I'm confident it wasn't what the Supreme Court has said it means.
(Via How Appealing.)
Posted at 6:40 AM