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0 pointsrayiner9y ago0 comments

If you're reading Darwin's work, you don't look at a 20th century dictionary to figure out what he meant. The question is, what would the phrase "cruel and unusual punishment" have meant to people when those words were written?

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lmm9y ago· 4 in thread

Do you also take the position that the second amendment applies only to arms that were available at the time?

A constitution is not a codification of objective facts but of principles and processes for resolving disputes between people. To my mind it seems more likely that "cruel and unusual punishment" means "any punishment cruel and unusual according to community standards" than "this specific list of punishments".

rayinerOP9y ago

> Do you also take the position that the second amendment applies only to arms that were available at the time?

No, but I also don't think a textualist interpretation of the 8th amendment proscribes only a fixed set of punishments that existed in 1789. Words like "arms" and "punishments" denote categories--kinds of things grouped by shared characteristics. Someone in 1789 would be amazed by the technology of a modern shotgun, but would perceive it shared all the characteristics of what they thought of as "arms."

Likewise, hydraulic presses did not exist in 1789, but someone from the time would have recognized putting a convict's appendages in such a machine as sharing the characteristics of what they thought of as "cruel and unusual punishment."

But the death penalty did exist in 1789, and it wasn't considered a cruel and unusual punishment. So you're not just talking about fitting new things into existing definitions, but changing the definitions themselves to include things that were previously excluded.

dragonwriter9y ago

The ordinary definition of "unusual" refers to frequency in the current environment; there is nothing inconsistent with textualism to understanding that the use of that word in the 8th Amendment very much meant exactly that the frequency of practice of particular punishments in some context (whether global, or among "civilized nations", or whatever) would be relevant in determining whether or not it was "unusual".

Its not a changing definition when the ordinary definition of a word refers to circumstances which are subject to change.

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tptacek9y ago

It more or less does apply only to arms that were available at the time. Is there a type of weapon available to the armies of the founders that was not available to individuals at the time of the founders? Because there are all sorts of weapons available to our armies that aren't available to individuals, despite 2A.

AnimalMuppet9y ago

Some private ships had cannons, at least by the time of the War of 1812. I don't think there was anything bigger than cannons at the time. So, yes, private individuals (at least ones wealthy enough to own ships) had access to all the weapons of the day.

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SmellTheGlove9y ago

This is the law, though, not scientific research. Getting it wrong on reading Darwin is relatively inconsequential. Getting the law wrong impacts peoples' lives. That is why you have different theories of constitutional interpretation. It's more than what it means or what it meant, some will delve into should it mean what it meant.

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6 comments · 2 top-level

lmm9y ago· 4 in thread

Do you also take the position that the second amendment applies only to arms that were available at the time?

rayinerOP9y ago

> Do you also take the position that the second amendment applies only to arms that were available at the time?

dragonwriter9y ago

Its not a changing definition when the ordinary definition of a word refers to circumstances which are subject to change.

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tptacek9y ago

AnimalMuppet9y ago

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SmellTheGlove9y ago

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