Originalism's Perseverance: The Implications of a Faint-Hearted Exception to the Cruel and Unusual Punishments Clause

32 Pages Posted: 23 Jun 2010

See all articles by Richard E. Nowak

Richard E. Nowak

University of Illinois College of Law

Date Written: May 15, 2010

Abstract

When Justice Scalia admitted that given the right set of circumstances he would potentially prove to be a "faint-hearted" originalist, he set off another wave of criticism asserting that originalism is an unprincipled theory of constitutional interpretation and construction. Despite the legitimacy to the argument that any theory of interpretation permitting judges to decide cases based on their own preferences is unprincipled, this Paper argues that a limited exception to the Cruel and Unusual Punishments Clause would not undermine the orginalist rule. Instead, this Paper argues . . . .

Keywords: Originalism, Original Public Meaning, Original Intentions, Cruel and Unusual Punishments, Constitutional Interpretation and Construction, Faint Hearted

Suggested Citation

Nowak, Richard E., Originalism's Perseverance: The Implications of a Faint-Hearted Exception to the Cruel and Unusual Punishments Clause (May 15, 2010). Available at SSRN: https://ssrn.com/abstract=1628923 or http://dx.doi.org/10.2139/ssrn.1628923

Richard E. Nowak (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

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