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William C. Altreuter
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Thursday, July 09, 2015

I really ought to delve into Eighth Amendment jurisprudence some time. It seems to me that its wording is an implicit recognition that the Bill of Rights specifically, and the Constitution as a whole were intended to be understood as the foundation for an evolving jurisprudence-- but let's face it, the concept of an evolving constitutional jurisprudence isn't particularly new. Marshall got it, and so did Holmes. Strict textual ism is a comparatively new form of reactionary legal thought. The most recent death penalty case is pretty ugly stuff. Justice Alito has announced, more or less out of nowhere, that if someone wants to argue that a particular form of execution is "cruel and unusual" than it is necessary to propose an alternative. Don't wanna be locked in a room with a live tiger? Well, what do  you want to be killed by. The reasoning is that since capital punishment is presumptively constitutional something something.... Petition Denied. It really would be refreshing if we had Supreme Court Justices whose thought processes had evolved past late-night dorm room debates.

In any event, I was pleased to learn today that whenever a death sentence is commuted or a death-row inmate is released anywhere in the world, the Colosseum’s nighttime illumination is changed from white to gold. Way to go Italians! I look forward to the day when the United States joins the rest of the civilized world and leaves the executions to the Saudi Arabians and the North Koreans.

| Comments:
Yes, I see that, I think: what is "excessive", whether in bail or in punishment, but especially in regard to "cruel and unusual" as a modifier? Whereas having your head cut off might now be excessive or unusual, is it also cruel, and do all these things together form something we can reliably bar from consideration? Is the death penalty in and of itself now sufficiently cruel and unusual both and also thereby excessive; is it simply excessive to whatever crime?

The idea of requiring an alternative proposal, regardless of how one come down on the analysis of the punishment, by whatever means, is simply an abandonment of jurisprudence, and this condemns the majority of the Supremes as having reneged on their commitment to the job they've been appointed to - for life - which must surely constitute cause for their removal, if such a provision existed, but certainly cause to shame them for all time.
 

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