New Originalism: Arizona's Founding Progressives on Extreme Punishment

Abstract

Originalism, together with textualism, has been of growing interest to legal scholars and jurists alike. Discerning and putting forth the views of “the founders” has become part and parcel of effective advocacy, particularly with regards to constitutional questions. Arizona is no exception, with its courts explicitly giving originalism primacy over all other interpretive doctrines for discerning the meaning of an ambiguous provision of its constitution.

Yet, the Arizona state courts have not engaged with the views of the state’s founders on key issues concerning the purposes of punishment, as demonstrated by the founders’ words and deeds. Arizona was founded in 1912 as a progressive project and the founding generation—from the convenors of the 1910 constitutional convention and the courts to the people themselves—held and acted on progressive views of punishment. They rejected the idea that any person was beyond reform and insisted that the state had an obligation to bring about reform of persons convicted of crime. Progressive ideals were a core aspect of the founding of Arizona, and those ideals provide a compelling reason to give independent meaning to Arizona’s bar on cruel and unusual punishment in ways that call for judicial skepticism of any punishment that does not serve the progressive ideals of rehabilitation and reformation.

Keywords: originalism, history, punishment

JEL Classification: K14, K41