Cruel and Usual Punishment: Transcendental Nonsense and the Functional Approach at the Same Time

Not a good citation form. It does not uniquely identify a case.

basing its decision on some transcendental nonsense. Interestingly, the decision is criticized most often not for its legal reasoning, but for its use of foreign sources to support its conclusion.

Not a good form of reference either. "Since 1958" would work if all that matters is the year, but if "a case" is needed, as it is here, then "Trop v. Dulles (1958)" takes but one additional word.

Such a definition falls into what Cohen called a vicious cycle. Court decisions are always part of the evolution of social standards; sometimes they lead the evolution. The fact that the Court ruled executing a juvenile unconstitutional made the execution a violation of “the evolving standards.” (Although I don’t have any empirical evidence on this specific question, my reasoning here is based on other countries’ experience in the abolition of death penalty. Opposition to the death penalty appears to grow the longer the country has been without the punishment.) So it is putting the cart before the horse for the Court to regard “the evolving standards” as a reason for declaring the execution unconstitutional.

This is non-sequitur. The Court can perceive that banishment, or executing children, are no longer actions tolerable under the society's prevailing standards of decency without having previously ruled that the actions are unconstitutional, just as the Convention Parliament could perceive that James II's use of whipping and aggression against habeas corpus went too far.

Also inadequate.

the case overruled by Roper, another transcendental nonsense was put forward to explain the previous one: “national consensus,” which meant the execution could be abolished only when there was a national consensus that it should no longer exist. If there had been any national consensus, how could this have been hotly debated by the opponents and proponents? This requirement is a convenient tool for the conservatives to uphold the constitutionality of a punishment. However, when a decision tries to keep the national consensus requirement and abolish an existing punishment at the same time, problems will follow.

No. It was abolished because a majority of Justices abhorred the practice. Your realism is unrealistic.

This is really a fundamentally different topic. Combining the two makes more trouble for you than it sheds light.

That's a specious but meretricious argument. "Similar" experience in other places could hardly be used to displace legislation, after all. So the question is not about how to make good policy, but about the nature and extent of judicial power. The arguments made against citing foreign sources in US Constitutional cases are also meretricious, and you can confront them successfully if you try, perhaps by learning some history of the controversy over the use of English cases in the early national US courts. But confronting the arguments means not trying to hit the ball where they ain't.

Too many steps skipped. Two questions arise, after all, which would be answered separately if a foreign case (perhaps an English case from 1695, for example?) shed light on the fixed meaning of "cruel and unusual punishment" in the Bill of Rights of 1689.

But that's not the result of a dispute about the meaning of the Eighth Amendment. That's because Nino doesn't regard executing children as an abhorrent practice. (The Catholic Church has always found ways to remain unconcerned about the practice.) That was clear from his first Term on the Court.

There were not, so the liberals got what they wanted. However, they got it at a cost: the Roper decision was a mixture of the functional approach and some transcendental nonsense like “the evolving standards of decency that mark the progress of a maturing society.” The two ideas are incompatible,

Certainly not.

and the combination causes confusion and ambiguity, just as Blackstone did in throwing Hobbs and Coke together.

I think you mean Hobbes. This aside causes you way more trouble than it's worth, because you haven't got a prayer of reducing Blackstone to the sum of Hobbes and Coke, and all you do is make apparent that you haven't any significant first-hand experience of either Blackstone or Coke.

But we have to be practical here: the majority needed five votes. If they had given up the transcendental nonsense, they would not have got five votes. To get the important fifth vote, the price that had to be paid was to let him (the Roper majority was written by Justice Kennedy) include the transcendental nonsense in the opinion.

This assumes that the other judges in the majority don't believe that the Eighth Amendment's words require a contemporary assessment of what constitutes "cruelty" or "unusualness." On the basis of my limited experience of those human beings I think you're wrong in that assumption as to at least three. So what's your evidence for this proposition?

Quoting Deng Xiaoping casually in a discussion of capital punishment has a rather sinister wit about it. I would ask whether it is a good idea.

As I said above, I think the attempt to discuss two quite distinct issues in the space available acted to the detriment of the essay as to both. You need to choose which, I think, you want to write about.

So far as the Eighth Amendment jurisprudence is concerned, you need to be careful to explain your ideas not in Cohen's rhetoric, but in your own. His leads you astray, because you wind up treating any "living constitution" position as "transcendental nonsense," which is a contentious conclusion you do not establish. For me, as a historian, "original intention" is transcendental nonsense, and anything that relates contemporary constitutional decisions to contemporary political phenomena, including even the presence or absence of current political consensus, is—if not entire realism—a step in the correct direction. I may be wrong as any reader can be wrong, but you must show me why I am wrong, not try to assert your way past me.