Death, desuetude, and original meaning.

AuthorStinneford, John F.
PositionIntroduction through I. The Death Penalty Debate, p. 531-559

ABSTRACT

One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual Punishments Clause. As I have shown in prior articles, the original meaning of "cruel and unusual" is "cruel and contrary to long usage, " or "cruel and new. " The primary purpose of the Cruel and Unusual Punishments Clause is to prevent legislatures and courts from imposing new punishments that are unduly harsh in light of the long usage of the common law. This Article demonstrates that the Clause also incorporates the common law doctrine of desuetude, which holds that a once traditional punishment can become "unusual" if it falls out of usage long enough to show a stable multigenerational consensus against it. State courts and the Supreme Court of the United States employed this doctrine in decisions prior to 1958 to determine whether punishments such as ducking of a common scold, execution accompanied by torture, and imprisonment at hard labor for a minor offense were cruel and unusual. Under the original meaning of the Cruel and Unusual Punishments Clause, the death penalty could become unconstitutional if it fell out of usage long enough to show a stable, multigenerational consensus against it. This process already occurred with respect to flogging, branding, and execution for relatively minor crimes like theft, and under the constitutions of states that abolished the death penalty several generations ago.

TABLE OF CONTENTS INTRODUCTION I. THE DEATH PENALTY DEBATE A. The Death Penalty and Justice Scalia's Originalism 1. The Substance of Justice Scalia's Claim 2. Evidence Supporting the Correctness of Justice Scalia's Claim 3. Standards of Adjudication Implied by Justice Scalia's Claim 4. Benefits of Justice Scalia's Approach 5. Detriments of Justice Scalia's Approach B. The Death Penalty and "Living Originalism" 1. The Substance of the Living Originalist Claim 2. Evidence Supporting the Correctness of the Living Originalist Claim 3. Standards of Adjudication Implied by the Living Originalist Claim 4. Benefits of the Living Originalist Approach 5. Detriments of the Living Originalist Approach C. What Is Needed II. DESUETUDE AND ORIGINAL MEANING A. Common Law, Custom, and Long Usage B. Desuetude and Long Usage 1. The Normative Basis for Desuetude 2. Conditions Necessary for Desuetude 3. Desuetude and Absolute Sovereignty C. Desuetude and the Cruel and Unusual Punishments Clause 1. Ducking and Desuetude: The Treatment of Once Traditional Punishments in State Courts 2. Painful Death and Desuetude: The Treatment of Once Traditional Punishments in the Supreme Court of the United States, Part 1 3. Excessive Punishments and Desuetude: The Treatment of Once Traditional Punishments in the Supreme Court of the United States, Part 2 4. Denationalization and Evolving Standards of Decency: The Death of Desuetude in the Supreme Court of the United States III. IMPLICATIONS OF DESUETUDE AS A CONSTITUTIONAL Standard A. Standards of Adjudication B. Benefits of This Approach C. Detriments of This Approach D. The Constitutionality of the Death Penalty CONCLUSION "[I]n nothing is the gradual change of the common law more apparent, and in nothing does it accommodate itself more to the change of manners and effect of education, than in the silent and gradual disuse of barbarous criminal punishments." (1)

"The [Cruel and Unusual Punishments Clause] ... may be therefore progressive, and is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice." (2)

INTRODUCTION

One of the primary objections to originalist constitutional interpretation is that this approach renders the Constitution obsolete and inflexible, incapable of dealing with societal change over time. (3) The Cruel and Unusual Punishments Clause is one of the most-cited examples of originalism's claimed unworkability, thanks in part to the extremely narrow "originalist" reading Justice Scalia and others have given the Clause. (4) This Article serves as a challenge both to Justice Scalia's reading of the Cruel and Unusual Punishments Clause and to the anti-originalist objections to which it has given rise.

To frame the issue, this Article asks whether the death penalty could ever become unconstitutional, consistent with the original meaning of the Cruel and Unusual Punishments Clause. The current debate boils down to two positions: Justice Scalia's claim that the death penalty could not be declared unconstitutional because the Eighth Amendment was meant to embody the moral perceptions of the late eighteenth century, a time when society widely accepted the death penalty; (5) and the "living originalist" claim (articulated by scholars such as Ronald Dworkin, Jack Balkin, and Michael Perry) that the death penalty could be declared unconstitutional because the Eighth Amendment embodies an abstract moral prohibition of cruelty, and it is up to each generation to decide for itself which practices violate that principle. (6) This debate is part of a larger debate about whether the Constitution is meant to embody natural principles of justice, and if so, how those principles can be applied in a way that is stable and reliable, but also sensitive to cultural change. (7)

This Article will argue that the word "unusual" resolves the death penalty debate. As I have shown in previous articles, the word "unusual" in the Cruel and Unusual Punishments Clause means "contrary to long usage." (8) At the time the Eighth Amendment was adopted, the common law was regarded as the law of "custom and long usage." (9) If a given practice was "used" over a long period of time, this was powerful evidence that it comported with principles of justice and that it enjoyed the consent of the people. A new practice enjoyed no such presumption. When the state tried to introduce a new punishment practice, the new practice was judged against the traditional practices it replaced. If a new punishment practice was too harsh in light of the preceding tradition, it would be judged "unusual" because it was new, and "cruel" because it was harsher than the tradition would permit. (10)

This Article contributes further to our understanding of the original meaning of the Cruel and Unusual Punishments Clause by demonstrating that it incorporates the doctrine of "desuetude." (11) Desuetude is the idea that a legally authorized practice loses its authority when it falls out of usage long enough that a "negative custom" of non-usage has replaced it. (12) Like long usage, long non-usage was thought to have great normative significance, for it tended to show that the practice had either become obsolete or that it was never truly reasonable in the first place. (13) This is not to say that there was no controversy concerning desuetude in the seventeenth and eighteenth centuries. Proponents of the absolute sovereignty of parliament argued that neither a positive custom, such as a common law right, nor a negative custom (desuetude) could invalidate a statute because statutes represent sovereign will. (14) Nonetheless, it was recognized that a showing of contrary custom could negate statutes that were declaratory of the common law. (15) Because a declaratory statute did not purport to represent the will of the sovereign, but the actual practice of the common law, a showing that a statute misrepresented the custom would negate the statute. (16)

The Cruel and Unusual Punishments Clause makes statutes authorizing punishment for crime analogous to statutes that are declaratory of the common law. (17) Although punishment statutes do not purport to "declare" custom, they are explicitly bound to custom by the Cruel and Unusual Punishments Clause. If they are harsher than custom (positive or negative) will permit, they are cruel and unusual. (18) Thus, for example, the Pennsylvania Supreme Court declared in 1825 that the once traditional practice of subjecting a woman...

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