04/23/2008 02:00 pm ET Updated May 25, 2011

Cruel and Unusual Originalism

Could Alabama bring back the whipping post or brand the skin of a thief with a scarlet T, and not run afoul of the Eighth Amendment's prohibition against cruel and unusual punishment? Such a proposition may seem outlandish, but it is what opinions signed last week by Justices Antonin Scalia and Clarence Thomas in Baze v. Rees would seem to sanction.

These opinions haven't gotten much attention, but they illustrate everything that is wrong about originalism as it is practiced by Justices Scalia and Thomas. Too often, these justices manipulate text, speculate wildly about the intentions of the Framers, and end up far from the letter and spirit of the Constitution. Recognizing the weakness of the conservative arguments about what the Constitution says and compels would help progressives immeasurably in responding to the rise of the conservative legal movement.

In Baze, seven members of the Supreme Court (including Scalia and Thomas) voted to uphold procedures used in lethal injections in Kentucky against the claim that these processes could result in horrific pain, constituting cruel and unusual punishment. Justice John Paul Stevens voted with Thomas and Scalia on the merits in Baze, dutifully following his interpretation of the Supreme Court's prior decisions. Stevens wrote separately to say that, after reviewing death penalty appeals for more than 30 years on the Court, he had concluded that the death penalty consists of "pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes" and, as a result, runs afoul of the Eighth amendment.

Stevens' thoughtful, measured opinion enraged Justice Scalia, who thundered that "[p]urer expression cannot be found of the principle of rule by judicial fiat." Scalia accused Stevens of refusing to follow the plain text of the Constitution. Scalia notes two parts of the Constitution's Fifth Amendment mention the possibility that "life" would be taken away, and he concludes from this that the Framers favored the death penalty. It is "no business of unelected judges," Scalia asserts, to find unconstitutional a "mode of punishment that is explicitly sanctioned by the Constitution."

This sounds pretty convincing until you consider the Double Jeopardy Clause, which sits right between the two portions of the Fifth Amendment Scalia cites, and prohibits criminals from being "twice put in jeopardy of life and limb." As the Supreme Court recognized in 1873 in Ex Parte Lange, this "life and limb" formulation dates from a period in England when "almost every offence was punished with death or other punishment touching the person." This Clause reinforces Scalia's point, by again mentioning the possibility that a criminal could be in jeopardy of losing "life," but it presents a much larger problem for him: by the terms of Scalia's argument the Framers also appear to have "expressly sanctioned" maiming as punishment for criminal behavior. Does the Framers' recognition of the historic fact that punishments "touching the person" were frequently used also give constitutional protection to this form of punishment?

The answer is no. The text does not "sanction" either death or dismemberment at the hands of the state. Rather, the Fifth Amendment imposes limits on these penalties if the state tries to use them. The Fifth Amendment tells us nothing important about whether these forms of punishment are good or bad, cruel or unusual.

Even more remarkably, Justice Scalia himself has declared that flogging, branding and similar forms of punishment are so abhorrent that they should be considered cruel and unusual no matter what the Framers' view of the matter. Calling himself a "faint-hearted originalist," Scalia asserts in his 1989 article Originalism: The Lesser Evil, "I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging." Given this admission, how can Scalia possibly justify the bitter words he directs at Justice Stevens in Baze? Is flogging really that much more abhorrent than death?

A separate concurring opinion by Justice Thomas' (Thomas and Scalia each joined each other's opinions) is equally flawed. Thomas endorses Justice Scalia's reading of the Fifth Amendment, and then adds the argument that the Eighth Amendment cannot be held to prohibit the death penalty because of "the ubiquity of the death penalty in the founding era." This is interesting history, but it is largely irrelevant. Some punishments that have always been cruel - flogging, for example - may have been cruel and ubiquitous at the time of the founding, but cruel and vanishingly rare now. Cruel is only one part of a two-part test. The word unusual, then and now, requires a court to look around and say whether or not a form of punishment is common. For this reason, the commonness of a form of punishment at the time the Constitution was drafted, and the Framers' expectations about whether a particular form of punishment would be considered "cruel and unusual," are entitled to almost no weight.

Frustratingly, no other justice in Baze responded in any detail to the sloppy account of text and history offered by Scalia and Thomas. One can understand the desire of the other justices not to get dragged down into debates about long settled points of law, but this has an important downside: it leaves the reader with the distinct impression that Scalia and Thomas are correct about the Constitution's text. This feeds into the right's claim that the Supreme Court is being activist in even considering whether the death penalty and its application can be cruel and unusual punishment.

Progressives opposed to the vision of the Constitution being advanced by Justices Scalia and Thomas under the label of originalism need to take the arguments like those made in Baze far more seriously, not because they are right about text and history, but precisely because so often they are so wrong. This yields a corresponding question: if Scalia and Thomas so frequently have to push the envelope on text and history to reach conservative results, why aren't progressives using these sources more to support the results they seek in the courts?

(This piece will be cross-posted at the blog of the American Constitution Society