Ok, got your point now - the constitution actually refers to death as a possible penalty.
It’s already been banned on those grounds by the SCOTUS. That ban didn’t last. It wasn’t the end of it.
No. Furman was the unusual case in which none of the five justices constituting the majority joined in the opinion of any other. And it was also an Eighth Amendment case (in addition to other arguments). So it was pretty vulnerable, and as we know, four years later it was essentially overruled.
McCleskey, by contrast, has a pretty clear and pretty clearly wrong rationale, and one that can be severed entirely from the Eighth Amendment. Because of that and the wider racial context, I expect that when McCleskey is overruled that it will last.
ISTM that those who are attempting to argue that the term “arms” means (to a textualist) only such arms as were in existence at the time the Constitution was written are making a completey specious point. The fact that those weapons were not in existance at the time does not mean that they did not fit the meaning of arms as understood by writers and speakers at that time.
Re “cruel and unusual”, I for one don’t have any difficulty with the notion that the meaning of that term can evolve over time. It’s an inherently subjective term. The problem I do have is with a small number of people deciding to give legal standing to their own view of what’s cruel and unusual. If the vast majority of society came to the position that the death penalty is cruel and unusual, then I would think it would be illegal under the constitution (though possibly something of a moot point). But as long as this is not conventionally accepted by society, then I don’t see why the sensibilities of a small number of judges should count for anything more than anyone else’s.
I find it superbly ironic that some opponents of the Citizens United decision resort to ridiculous textualist (if that’s the right word for it) interpretations of “speech” to mean only a human actually using his/her vocal cords to speak.
Ummmm, because they’re justices on the Supreme Court and that’s how the Constitution works. It’s their power, and duty, to interpret the Constitution (including the words “cruel and unusual”), and to determine if any laws violate it. Saying that the judiciary shouldn’t have the power to do its job and to act as a check and balance on the power of the majority ignores the very system of government the Constitution created.
The Constitution, and specifically the Bill of Rights, protects us from abuses of human rights, even when they are supported by a “vast majority of society.” In fact, it’s common for a majority of society to support something that it then elects representatives to enact in Congress that is then struck down as unconstitutional by a few judges.
Not so. You’re conflating the power to interpret the Constitution with the basis for their interpretation.
Their “power and duty to interpret the Constitution” would be to interpret the meaning of this subjective concept according to the evolving meaning of that concept. But the basis for that interpretation needs to be (their interpretation of) what that concept has come to mean to society at large, as opposed to what they personally think it should mean.
That’s possible if there is a clear and unambiguous violation of the Constitution. But if the basis for declaring something to be a violation is the notion that a term in the Constitution has taken on a new meaning, then the new meaning needs to be one that has been accepted by society and not imposed by the judges.
I see your point now.
And they ignore the word “press.”
Oh, yeah, that too - “the press” clearly refers only to words put on paper using a Gutenberg-style printing press.
Oh, and what was that about the founding father intending that only people have rights, not corporations? I wonder how the press fit into that idea.
It’s been almost a century, so- no.
And the only Freedom of the Press is only for things printed on a 18th century Printing press? :rolleyes:
The Freedom of Religion only to faiths in existence then? :dubious:
No, not weapons - ARMS. Two of them, each with an elbow and a hand. It’s right there in black and white.
I’ve posted the following in so many threads related to guns and the constitution I’m amazed I still have to reiterate it: the phrase “well-regulated” as used in the late-18th century meant something rather different than we take it for today. “Well-regulated” did not mean “under strict government control”; it meant something more like functional, practiced, in good working order, able to perform. A clock that kept time accurately or a coach line that ran dependably was “well-regulated”. The phrase “disciplined” was used to mean what we now take regulated to mean, under tight control and supervision.
The Second Amendment, like the rest of the Bill Of Rights, has to be taken in the context of the debate over the ratification of the new federal Constitution. The anti-Federalists were deeply suspicious of any expansion of central power, and in the case of the militia feared that any federal control over the armed citizenry could be used either to regiment the populace under permanent military discipline, or alternatively the federal government could simply order the populace to “stand down” forever and turn in their arms. Paraphrased into modern English, the proponents of the Second Amendment were saying that a theoretical, on-paper-only militia wasn’t good enough; that it was necessary to have people who actually owned guns and were familiar with them and their use.
Cite? Well for starters there are the Federalist and Anti-Federalist papers, which document the public debate over ratifying the new Constitution, and which unfailingly use the language I’ve described above. If you want a specific example, try the Federalist #29 “Concerning The Militia”, where Alexander Hamilton (probably the most big-government, central control fan of the entire Founding Fathers) explicitly defines “well-regulated”, and uses it to argue against the notion that armed citizens would be subject to tight regimentation by the federal government.
I didn’t post about “suffer the little children” or “creature” just to be facetious; the common meaning of words and phrases does shift over time. We already need a reference manual to understand half of Shakespeare, and a lot of his puns and double-entendres sail over modern readers heads. The English of the 18th century is already stilted and may sink into near-incomprehensibility in another century or two.
Bricker (or anybody else), would you mind giving an explanation for the SCOTUS decisions in the 1970’s regarding hanging as a form of capitol punishment? IIUIC SCOTUS ruled that hanging was cruel and unusual despite evidence that the framers used hanging (and thus didn’t consider it C&U). It was then overruled somehow a few years later by SCOTUS. What happened there?
I have my own originalist question, and it applies to segregated schools. Pretty much everybody today, originalist and non-originalist alike, agrees that Brown vs Board of Ed was rightly decided, and that segregated schools violate the 14th amendment. The 14th amendment was passed by the 39th Congress in 1866, and then ratified by the states not too long after. If I’m correct, and I think I am, the 39th Congress also passed the law setting up public schools in Washington, DC, and, of course, those schools were racially segregated. If the same Congress that passes the 14th amendment also sets up segregated schools, that suggests that they don’t consider segregated schools to violate the 14th amendment.
I’m not sure I know.
I think you might be confusing some issues.
So far as I know, the Supreme Court never ruled that hanging was cruel and unusual. The last execution by hanging was in Delaware in 1996. Delaware had previously, legislatively, removed hanging as a possible method of execution, but the accused was “grandfathered,” in and chose hanging over lethal injection. Two states today retain hanging as a possible method.
The Supreme Court did, in 1972, rule that the death penalty as then used violated the ban on cruel and unusual punishment, but this was not related to hanging. In fact, the Court didn’t actually express a coherent, unified rationale. Three of the five in the majority wrote that the death penalty was applied unfairly; two others felt that the penalty itself was unconstitutional. So the holding was: no death penalty, but the narrowest plurality opinion was related to process and application.
States undertook to revise their death penalty statutes to address the concerns, and in 1976 the Court upheld death sentence procedures in several states as meeting the requirements of the Constitution. Again, this was not in any way specific to hanging.
I can give more detail, but I want to narrow down if it’s hanging or trial and penalty processes that interest you. The gallows or the bifurcated trial?
That’s a good example of the distinction between textualism and original intent. A textualist looks at the text of the 14th amendment. Legislation about DC schools is not part of the 14th amendment.
You are correct. I thought the 1972 SCOTUS decision was just re: hanging and was based on violating “C&U” but I was off base. Thanks for the explanation!