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.
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.
As I have shown in previous articles, the word "unusual" in the Cruel and Unusual Punishments Clause means "contrary to long usage.
The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
34) It seems that the Framers imported the language of the Amendment from the 1776 Virginia Declaration of Rights, which similarly provides "[t]hat excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
N]or cruel and unusual punishments inflicted" (223) could be interpreted to mean that only punishments that are both cruel and unusual are prohibited or that both cruel punishments as well as unusual punishments are proscribed.
Among these was the assertion "[t]hat excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted.
The Eighth Amendment's history invites inquiry as to what its language of excessive bail, excessive fines, and cruel and unusual punishments meant to the English.
The historic prohibition of cruel and unusual punishments never invited a general inquiry into how governments around the globe were treating people.
That the electric chair employed by the state of Florida malfunctions so badly, resulting in several "botched executions," that in and of itself, its use is a violation of the Eighth Amendment's prohibition against cruel and unusual punishment
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.
Desuetude and the Cruel and Unusual Punishments Clause
no cruel and unusual punishments shall be inflicted; therefore, torture
address how the Cruel and Unusual Punishments Clause operated in
399 (1986), in which he describes essentially universal agreement "that the Eighth Amendment's ban on cruel and unusual punishment
embraces, at a minimum, those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted.