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Nowak on Originalism & the Cruel & Unusual Punishment Clause

By Lawrence Solum

Richard E. Nowak (University of Illinois College of Law) has posted Originalism's Perseverance: The Implications of a Faint-Hearted Exception to the Cruel and Unusual Punishments Clause on SSRN. Here is the 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.

Full post as published by Legal Theory Blog on June 25, 2010 (boomark / email).