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Saturday, March 02, 2013

“Harmelin’s Faulty Originalism”

In case you missed it, John Stinneford and I have been having a lively debate in the comments section of my most recent post on my (admittedly novel) claim that the Cruel and Unusual Punishments Clause can be read in a state-specific way.  One thing I know John and I agree on is that the Clause as originally understood likely encompassed some kind of proportionality requirement.  This is in contrast to the persistent contrary view of Justices Scalia and Thomas, which can be summed up best by Justice Scalia’s comment in dissent in Atkins v. Virginia that “[t]he Eighth Amendment is addressed to always-and-everywhere `cruel’ punishments, such as the rack and the thumbscrew.”  In their view, in other words, the Clause was understood in 1791 only as forbidding certain types of punishment.  This view stems from Justice Scalia’s plurality opinion in 1991 in Harmelin v. Michigan.

In my latest piece, “Harmelin’s Faulty Originalism,” I refute each of Justice Scalia’s points in that opinion.  I won’t go through all the arguments here but I’ll provide a snippet of just one.  Justice Scalia relies in part on nineteenth-century state court cases interpreting either the Cruel and Unusual Punishments Clause or the state analogue.  However, all but one of the cases he cites is from 1855 or later.  This is a tactic of originalists (or faux originalists) that too often goes unanswered.  If we are trying to figure out what a phrase meant in 1791, why on earth would we look at what people in 1855 thought it meant?  After all, it is difficult to understand why their ability to glean the meaning of a phrase from its deep, dark past would be any better than our own.  Indeed, to the extent that technological advances help with the endeavor, arguably it is we, not they, who are better situated to grasp original understanding.  Yet few have called them out on this (Tom Davies is someone who has, and perhaps there are others).

In short, as I’ve shown in my work and John in his, the certitude that Justices Scalia and Thomas display in their reading of the Clause flies in the face of virtually all the available evidence we have on its original understanding.  The real question is not whether the Clause was meant to encompass a proportionality requirement but (1) what kind and (2) whether and to what extent the Fourteenth Amendment incorporates such a requirement.

Posted by Michael J.Z. Mannheimer on March 2, 2013 at 11:40 PM | Permalink


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I read the Patrick Henry speech you quote on page 14 to warn that legislators will urge the establishment of a court of criminal equity (a Star Chamber) empowered to extract through torture confessions to crimes that would merit punishment with "still more relentless severity."

It does not seem to me that the torture is referred to as either itself a method of punishing with more relentless severity, or a less relentlessly severe punishment than something to follow.

Posted by: JM | Mar 3, 2013 1:46:13 AM

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