Death, Desuetude, and Original Meaning

65 Pages Posted: 19 Nov 2014

See all articles by John F. Stinneford

John F. Stinneford

University of Florida - Levin College of Law

Date Written: November 17, 2014

Abstract

One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual Punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to long usage,” or “cruel and new.” The primary purpose of the Cruel and Unusual Punishments Clause is to prevent legislatures and courts from imposing new punishments that are unduly harsh in light of the long usage of the common law. This Article demonstrates that the Clause also incorporates the common law doctrine of desuetude, which holds that a once traditional punishment can become “unusual” if it falls out of usage long enough to show a stable multigenerational consensus against it. State courts and the Supreme Court of the United States employed this doctrine in decisions prior to 1958 to determine whether punishments such as ducking of a common scold, execution accompanied by torture, and imprisonment at hard labor for a minor offense were cruel and unusual. Under the original meaning of the Cruel and Unusual Punishments Clause, the death penalty could become unconstitutional if it fell out of usage long enough to show a stable, multigenerational consensus against it. This process already occurred with respect to flogging, branding, and execution for relatively minor crimes like theft, and under the constitutions of states that abolished the death penalty several generations ago.

Keywords: Death Penalty, Cruel and Unusual Punishments, Originalism, Original Meaning, Desuetude, Common Law, Individual Rights, Punishment, Sentencing

Suggested Citation

Stinneford, John F., Death, Desuetude, and Original Meaning (November 17, 2014). William & Mary Law Review, Vol. 56, 2014. Available at SSRN: https://ssrn.com/abstract=2526229

John F. Stinneford (Contact Author)

University of Florida - Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States

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