Fox News: Cruel and Unusual

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

As we approached the moment for the confirmation of Judge Gorsuch, a Fox News correspondent (didn't catch the name) discussed that Justice Antonin Scalia, like Gorsuch, supported the idea that the original language of the U.S. Constitution, and the original meanings of that language, is what should be followed, and that most judges do not agree with that idea.  He then, to prove his point that originalism is silly, said, "What they thought was cruel and unusual in 1791 may not be thought to be cruel and unusual today."

Immediately, I realized, the reporter had no idea what he was talking about.

In today's vernacular, "cruel and unusual" is thought to be defined based on degrees.  What is the degree of how cruel the item is?  Using that definition, the reporter was right.  Waterboarding would definitely not be considered a cruel form of torture back during the days of the Founding Fathers when people were sometimes drawn and quartered. Today, the Democrats believe waterboarding to be extremely cruel.

The constitutional definition of cruel and unusual, however, has nothing to do with "degrees" and everything to do with how "usual" the item may be.

Let's read the entire amendment to create context.

Amendment VIII: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

Notice that the part of the amendment prior to the words "cruel and unusual" center around excessive bail or fines.  The term "excessive" means "more than usual."  It is a term of comparison.  If prisoner (a) and prisoner (b) paid a $400 fine for a petty crime, should prisoner (c) be required to pay $18,000 for that same crime?  No.  Compared to the usual fine or bail, the latter amount is excessive.

The same thing goes for the phrase "cruel and unusual."

Detainee (a) for a particular crime is given 30 days in jail and six months community service.  Detainee (b) is given 15 days in jail, plus time served which is 10 days, and will participate in six months community service.  Then, detainee (c) gets 90 days in a county jail, two years in a State institution, then three years community service after he gets out.  The third punishment is unusual, and a greater punishment than is normally given for the particular crime, making it cruel and unusual.

Cruel and unusual, from the Framer's point of view, had nothing to do with degree, and everything to do with how typical the punishment may be for the corresponding crime.

-- Political Pistachio Conservative News and Commentary