Death, desuetude, and original meaning.

• Author: Stinneford, John F.
• Position: II. Desuetude and original meaning through Conclusion, with footnotes, p. 559-595

2. DESUETUDE AND ORIGINAL MEANING

   Scalia-type originalism and living originalism both tend to ignore the word "unusual" in the Cruel and Unusual Punishments Clause, treating the Clause as a bare prohibition of cruel punishments. (137) The reason for this is fairly obvious: there is no clear connection between a punishment's rarity and its cruelty. A law mandating the public torture of all sex offenders, for example, would seem crueler than a law calling upon courts to impose torture only on rare occasions. Given the lack of an intuitive connection between rarity and cruelty, it is natural and predictable that courts and commentators would largely ignore the word "unusual." (138)

   This understandable neglect is based on an interpretive error. As I have shown in previous articles, the word "unusual" in the Cruel and Unusual Punishments Clause does not mean "rare," but "new." (139) More specifically, it means "contrary to the long usage of the common law." (140) The Cruel and Unusual Punishments Clause forbids punishments that are cruel in light of longstanding practice.

   1. Common Law, Custom, and Long Usage

      As described in Part I.A.4, above, Justice Scalia presents two views of the common law in his account of constitutional interpretation. He claims that at the time the Constitution came into being, the common law was falsely seen as "a preexisting body of rules, uniform throughout the nation." (141) Justice Scalia argues that the Legal Realists debunked this view, showing that the common law is nothing more than judges making up law as they go, based on their view of "the most desirable resolution of [any given] case." (142) Although this narrative is widely shared among lawyers and academics today, it is false.

      At the time the Constitution was adopted (and for centuries prior to that time), the common law was not seen as the product of judges exercising a "legislative function," (143) nor was it seen as the series of fixed, transcendent rules Justice Holmes mockingly described as a "brooding omnipresence in the sky." (144) Rather, the common law was considered to be a kind of customary law--the law of "custom" and "long usage." (145) The basic idea was that a practice that enjoyed long usage throughout the jurisdiction obtained the force of law, despite the fact that it had never been mandated by king or parliament. (146) Such laws were considered normatively superior to laws imposed by the sovereign because long usage guaranteed that they were reasonable and that they enjoyed the consent of the people. These ideas were stated succinctly in 1612 by Sir John Davies, Attorney General for Ireland, in the Dedication to his Irish Reports:

      For the Common lawe of England is nothing else but the Common custome of the Realme:.... For a Custome taketh beginning & groweth to perfection in this manner. When a reasonable act once done, is found to bee good & beneficiall to the people, & agreeable to theire nature & disposition, then do they use it, & practise it, againe, & againe, & so by often iteration & multiplication of the act, it becometh a Custome, & being continued without interruption time out of minde, it obtaineth the force of a lawe. And this Customary lawe is the most perfect, & most excellent, and without comparison the best, to make & preserve a commonwealth, for the written lawes which are made either by the edicts of Princes, or by Counselles of estate, are imposed uppon the subject before any Triall or Probation made, whether the same bee fitt & agreeable to the nature & disposition of the people, or whether they will breed any inconvenience or no. But a Custome doth never become a lawe to binde the people, untill it hath bin tried & approved time out of minde, during all which time there did thereby arise no inconvenience, for if it had beene found inconvenient at any time, it had been used no longer, but had beene interrupted, & consequently it had lost the vertue & force of a lawe. (147) These ideas--that the common law is the law of custom and long usage; that long usage demonstrates that a law is "fit and agreeable" to the people it governs; and that long usage makes the common law normatively superior to law imposed by the sovereign--were often repeated by English and American legal and political thinkers ranging from Edward Coke and William Blackstone to John Adams and James Wilson. (148)

      These ideas were important because they gave rise to the English, and later the American, conception of rights enforceable against the sovereign. (149) Throughout the seventeenth and eighteenth centuries, two views of governmental power struggled for dominance. Proponents of absolute sovereignty argued that the sovereign was the source of all law and therefore could not be constrained by law. (150) In contrast, common law thinkers argued that sovereign power was limited by the fundamental principles and practices of the common law. (151) They argued that the common law predated the sovereign and gave the sovereign its authority, and that the common law better reflected natural principles of justice than could any exercise of sovereign will. (152)

      The great battles of English and early American constitutional history all involved a contest between claims of absolute sovereign power and claims that such power was limited by the common law. When English kings and queens used the rack against suspected enemies, common lawyers argued that such practices were illegal because torture was contrary to long usage. (153) During the back-and-forth struggles between king and parliament throughout the seventeenth century, the holder of state power, whether king or parliament, frequently claimed absolute sovereignty unconstrained by law, (154) whereas the power-holder's opponents claimed that the common law limited sovereign authority. (155) The American Revolution itself was justified as a struggle to preserve the common law rights of American colonists (156) against a British parliament that claimed absolute power to make law governing the American colonies. (157)

   2. Desuetude and Long Usage

      Desuetude is the idea that if a law is left unenforced for a long time despite numerous enforcement opportunities, it may lose all legal force because a negative custom has grown up against it. (158) The doctrine of desuetude is an ancient one, dating back at least to Roman law. (159) It has been recognized more or less continuously throughout Western history, albeit with significant controversy since the rise of the nation-state and the idea of absolute sovereignty. (160)

      1. The Normative Basis for Desuetude

         Desuetude has received attention in recent decades from constitutional law scholars such as Alexander Bickel and Cass Sunstein, who argue that desuete statutes raise due process issues similar to those arising from unconstitutionally vague statutes. (161) When a law is not enforced for decades despite numerous open violations, this nonenforcement creates the risk that the public will be lulled into believing that the law no longer exists. If a prosecutor chooses to revive the law and prosecute individuals for violating it, such individuals might be caught off guard because they reasonably believed the conduct was no longer illegal. The continued existence of such laws also creates the risk that law enforcement will revive them for improper, discriminatory reasons. Alexander Bickel argues that these notice and discrimination issues were the true problem with the anti-contraception statutes at issue in Poe v. Ullman. (162) Similarly, Cass Sunstein suggests that the sodomy statutes struck down in Lawrence v. Texas may have been unconstitutional primarily because their long nonenforcement created unacceptable fair notice and discriminatory enforcement problems. (163)

         Although courts and commentators have occasionally focused on the fair notice issues arising from long dormant laws, (164) this has not historically been the primary justification for the doctrine of desuetude. (165) Instead, long nonenforcement of a law has been thought to show that the law is substantively unreasonable (166) and that it does not enjoy the consent of the people. (167) These arguments have predominated because desuetude is the mirror image of "long usage." Just as long usage tends to show that a practice is reasonable and enjoys public acceptance, long non-usage tends to show the opposite.

         The idea of desuetude has always been bound together with the idea of long usage. The great common law thinker Edward Coke compared the long usage of the common law to the refinement of gold in a fire. He asserted that as cases get decided "by many successions of ages," the common law is "fined and refined" until it reaches greater perfection than any lawmaker or group of lawmakers could provide. (168) This analogy implies both continuity and loss. As the refinement continues over time, the true "gold" of the law remains, while the dross falls away. Common law thinkers considered the "gold" of the law to include the common law rights that developed and persisted over time, such as the right to due process of law, (169) indictment by grand jury, (170) habeas corpus, (171) the right not to be subjected to double jeopardy, (172) the right to taxation only with the consent of parliament, (173) and the right not to be subjected to cruel and unusual punishments. (174)

         The dross of the law, on the other hand, included those once traditional practices that fell away because they turned out to be unreasonable or no longer fit the needs of society, and thus lost the consent of the people. Edward Coke wrote that "Custome ... lose[s its] being, if usage faile." (175) Similarly, Sir John Davies maintained that if a traditional legal practice has "been found inconvenient" it is "used no longer" and thus "los[es] the virtue and force of a lawe." (176) James Wilson, one of the most important drafters of the U.S. Constitution, argued that the interplay between long usage and...