Analysis of information sources in references of the Wikipedia article "Eighth Amendment to the United States Constitution" in English language version.
{{cite web}}: CS1 maint: multiple names: authors list (link)In response to the non-originalist approach to the Constitution, some judges and scholars – most prominently Justices Scalia and Thomas – have argued for a very narrow approach to original meaning that is almost willfully indifferent to current societal needs. ... My own research into the original meaning of the Cruel and Unusual Punishments Clause shows that Justice Scalia's and Thomas's approach has a fatal flaw: It ignores the meaning of the word "unusual". ... [T]he word "unusual" in the Eighth Amendment did not originally mean "rare"– it meant "contrary to long usage", or "new". A punishment is cruel and unusual if it is "cruel in light of long usage" – that is, cruel in comparison to longstanding prior practice or tradition.
[E]ven if one stacked up all of Oates's punishments together—the fine, the whippings, the imprisonment, the pillorying, and the defrockment—their cumulative effect was less harsh as an absolute matter than some punishments considered acceptable at the time, such as drawing and quartering or burning at the stake. If the punishments inflicted on Oates were unacceptably cruel, this could only be because they were disproportionate to the crime of perjury.
But, says Stinneford, punishment is unacceptable only if it is "both cruel and 'contrary to long usage'". Id. at 977 (emphasis added).
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