Justice Scalia's Evolving Eighth Amendment Jurisprudence

Since the Roper decision was handed down earlier this month (declaring unconstitutional the death penalty for juvenile offenders), there's been a fair amount of discussion as to how courts should interpret the "cruel and unusual" clause of the Eighth Amendment. Reading about Justice Kennedy's opinion and Justice Scalia's dissent brought me back.

In my law school days (and boy am I dating myself here), I had the pleasure of meeting Antonin Scalia when he came to speak. Already a federal judge, it was known at the time he was on the short list for a top spot. Our Dean jokingly introduced him as "the next member of the Supreme Court," and, in fact, he was soon after nominated.

He spoke on Constitutional interpretation. He essentially believed that judges should interpret the words to mean what they meant when they were written. Some students had problems with this approach. One noted that it is by no means simple to figure out, historically, what words once meant (it's hard enough to know what they mean now). Another said that the Constitution was written and/or adopted by quite a few people over a period of time, and so the words could mean various things to them. Scalia responded by saying he didn't claim his method was easy, just more honest.

I asked him about how should we deal with ambiguity. He wanted an example. I brought up the Eighth Amendment--it seemed to me that "cruel and unusual" was a term fairly open to interpretation, and meant to be--"unusual" itself suggests a standard that changes with the times. Wouldn't the Founding Fathers expect its meaning to change and reinterpretation to ensue; the 1700s might accept the cat-o'-nine-tails but did that mean they'd be angry if the 20th century banned it? To be honest, I can't recall how Scalia responded.

That summer, I followed Scalia's confirmation hearings with great interest. Then, on August 6, 1986, I read in The New York Times:

"When asked by Senator Biden whether he agreed with the view...that judges interpreting the Constitution should stick to the original intent of those who framed the provisions, Judge Scalia seemed to suggest only partial agreement.

"He said he thought the original intent was a very important guide, but he said that, for example, he did not believe that lashing and other antiquated forms of punishment would be constitutional now just because they were widely used in 1789, when the Eighth Amendment's prohibition of 'cruel and unusual punishment' was adopted."

I smiled when I read that. Was I the one who put that particular example in his mind? Probably not.

Anyway, imagine my surprise to read this exchange (scroll down a bit) from a recent appearance by Scalia:

"Flip Strum: ....if we can go back to the Court's concept of evolving standards that it used in Roper....Would you just kind of explain your Eighth Amendment jurisprudence a little bit?

"Justice Scalia: ....I'm saying the Eighth Amendment means what was cruel and unusual and unconstitutional in 1791 remains that today....It may be a very bad idea, just as notching ears, which was punishment in 1791, is a very bad idea...."

Fascinating. It appears the Constitution doesn't evolve, but Justice Scalia does.