Changing Against the Times: Against an Originalist Cruel and Unusual Jurisprudence
After interpreting the Cruel and Unusual Clause of the Eighth Amendment in a decidedly nonoriginalist fashion for a century, the Supreme Court has recently introduced a new, purportedly originalist jurisprudence specific to method-of-execution challenges. This new analysis, focusing on readily avail-able alternative methods of execution to those methods challenged under the Clause, facially appears to guarantee the constitutionality of capital punishment going forward. Even conceding that this “alternative-methods” analysis is indeed originalist in nature (it is not), originalism should be rejected within the context of the Court’s Cruel and Unusual jurisprudence. By originalists’ own criteria, their theory ought to be accepted in light of the supposedly superior results that theory’s wholesale adoption would offer. In the context of the Clause, however, the costs of doing so are far too great for these benefits to be compelling.
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