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

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