Griswold v. Connecticut, 381 U.S. 479 (1965) (USSC+)

Russell Turpin deafbox@hotmail.com
Thu, 06 Mar 2003 13:51:47 +0000


John Hall:
>It means that nothing which would not have been considered cruel and 
>unusual then (like, for example, the death penalty) should [be] questioned 
>now.

That makes no sense to me. "Unusual" is
inherently and deeply context-sensitive in its
ordinary meaning. To determine what is unusual,
one has to look around. Far from declaring a
fixed, immutable standard, it is a term that
precisely calls for awareness of current
conditions.

You seem to be saying we should interpret
the proscription as "unusual for the late 18th
century." But that's NOT what the eighth
amendment says, and there is no more reason to
think that that is what its authors intended,
than there is to think that its reference to
"excessive bail" must be interpreted in terms
of the 18th century economy! If that was what
they intended, they should have written
something like: "nor punishment inflicted
which is cruel and other than what is NOW
customary." But that's not how it reads, and
there is nothing in the plain language of the
eighth amendment that suggests we should read
it in such fashion. For whatever reason, the
authors of this amendment used terms that are
replete loaded with nuance, relativity, and
awareness of circumstance. "Excessive."
"Unusual."

The mistake in the seventh amendment shows
that the authors were quite capable of using
absolute terms when they wanted. Perhaps the
wiser heads, recognizing that mistake in
constraining civil law, decided not to make
a similar mistake in constraining criminal
law.



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