8th Amendment Follies

Ten days ago I expressed displeasure over the latest court rulings on capital punishment. Lethal injection struck me as a far crueler option than what is still known, in an accidental irony, as ‘execution-style’ shooting. I also worried that permitting the execution of child rapists only after finding that society is becoming ‘more cruel’ is the wrong way to go.

Now today I see that Benjamin Wittes, of Brookings and Hoover, has a sane piece at The New Republic addressing the matter. The crux:

[…] the court has somehow developed a large body of Eighth Amendment law that assiduously avoids giving clear meaning to the text’s key terms. It is as though First Amendment law had never bothered to define “speech” or the court had neglected to give meaning to the terms “unreasonable” or “search and seizure” in the Fourth Amendment. When the court so fails, the only thing left is how the justices feel.

And you know how I feel about feelings. Wittes’ modified textualist approach has clear merit, though I’ll have to ponder a while to see if I judge it to have resolved, at least on paper, our 8th Amendment follies. Meanwhile, though, I highly recommend the read.