Originalism is a method for interpreting law by enforcing what the text meant to the people who originally wrote it.

Following originalism rights are adjusted to the current values of people by passing laws, which seems to be reasonable in practice. However from what I've read of it the Constitution is very broad. It rarely dives into specifics but rather gives a high level statement, seemingly to be carried out by legislation and the judicial process.

For example "cruel and unusual" in the 8th amendment. Justice Anthony Scalia, one of the biggest proponents of originalism, stated that the death penalty wasn't included under it because it was legal at the time the text was written. Under originalism modern society needs to amend the Constitution if it wants to include the death penalty or anything else under "cruel and unusual".

Do proponents of originalism suggest the new amendment use the phrase "cruel and unusual" but with the understanding that those words now mean something different? Or that it specifically call out the death penalty and everything else?

I wonder because the former would be strange and possibly confusing, and the latter greatly restricts amendments by not allowing them to paint with a broad stroke as the original text did.

  • Interesting thought experiment: A strict originalist would presumably take it that the Eighth Amendment permits burning at the stake, since that was widely accepted in the late 1700s. Suppose that today, there were enacted a new 28th Amendment, whose text was word-for-word identical to the Eighth. Would they interpret the 28th Amendment as now forbidding burning at the stake, since that is cruel and unusual by the standards of 2022? Oct 18, 2022 at 13:03

3 Answers 3


The actual method of amending the Constition is spelled out in Article V – originalism would reject the position that there are other ways to amend it. We can see the result in the ratified amendments. Originalism is a theory of interpretation, not a theory of drafting, and it hold that the words of the law, be it the Constitution or a particular statute, are to be understood as would be understood by people originally. (There are numerous versions of originalism, so one can't be more precise than than until you decide whether you mean original understanding or original intent, the latter now being a minority viewpoint). It does not hold that new laws should be drafted in the language as it existed in the 18th century, as indeed they are not. Thus the 26th Amendment is written in contemporary style befitting the fact that it was drafted recently, and the 27th Amendment is written in older style befitting the fact that it was drafted in 1789.

As for "changing values", each ratified amendment represents some change of values, whereby originally a right was not recognized (or was), and by the amendment, that value changes. The 18th Amendment represents on change in values, and the 21st reflects a change in that value, though not back to the status quo.

  • And some interpretations of originalism hold that the original meaning of some clauses explicitly direct us to read those clauses in the context of our time. "Cruel and unusual" from the 8th, and "reasonable" from the 4th, for example. See William Baude's paper: "Is Originalism Our Law".
    – K-C
    Apr 12, 2017 at 4:57
  • @K-C That's interesting. My question actually comes from Justice Anthony Scalia saying the opposite. That the death penalty isn't covered by "cruel and unusual" punishment because at the time it was written all of the states had the death penalty so they clearly didn't intend for it to be included. cnn.com/videos/tv/2016/02/13/…
    – JonK
    Apr 12, 2017 at 11:40
  • My wording might have been poor. I'm not questioning the process that would be used to amend the Constitution but what the amendment text would actually be in practice.
    – JonK
    Apr 12, 2017 at 11:45
  • That article is really interesting as a case-study in conceptual jelly-to-a-tree, see section I(B)(4).
    – user6726
    Apr 12, 2017 at 15:17

Specifically to your confusion with Scalia's statement, Scalia's belief is that if the Founding Fathers wanted to say "Capital Punishment should be unconstitutional" they had ample space to say that in the Constitution. They were well aware of it and did not have a problem with it. Additionally, Originalism doesn't just look at the text of the constitution, but other historical sources to provide insight into the drafting in the minds of the people who wrote the constitution. Such documents include the Federalist Papers (which went into depth about the meaning of each article and it's limits) the Anti-Federalist Papers (A critique that pointed out flaws in the unamend Constitution and lead to the creation of the Bill of Rights Amendments), and other writings by the framers where they talk at length about what they meant when they wrote the thing (A universal trick to get any writer to talk to you is ask them about their works... getting to shut up is now the hard part.).

As it follows, not only is there no mention of Capital Punishment in the Constitution and it was a form of punishment common to the time, and likely there were some communication on the subject in other matters, there is likely a historical record that leads to the conclusion that it is not "cruel and unusual". A textualist look would point out that "unusual" means if it's not a usual punishment for the crime and it is cruel, it is unconstitutional. But what's more important is the word "and" because it allows for a punishment that is not cruel but is "unusual" (A judge making juvenile offenders hold up signs identifying the crime they committed in lieu of sending them to Juvvie is unusual, but hardly cruel compared to involving juvenile corrections) or if the punishment is cruel but quite common (capital punishment) it's okay to be constitutional. The preceeding clause about excessive fines and bail also limits the application as Capital Punishment might be acceptable for those who commit pre-meditated murder, but no pro-Capitol Punishment advocate will debate that it's use for Jay Walking is beyond excessive, if not cruel and unusual.

Historical context standards aren't just used here as the latest ruling on gun control laws requires the state to show that restrictions must have historical basis for enacting (i.e. you have to show that the restriction of a certain gun or gun accessory has a similar historical precedence.).

And that isn't to say the definition of "cruel and unusual" cannot change over time. While a staple sight in Colonial period pieces, the use of the pillory was largely abolished in the United States in 1826 to relatively little fanfare (and certainly well before it rose to SCOTUS making a decision on it.). The nature of what is considered "Fighting Words" is defined more by the courts by what it is not than what it is (suffice to say, aside from the case that introduced the term, every case involving Fighting Word Doctrine has been ruled to not be an example of the doctrine). And the protections provided by the Third Amendment were against intrusion so beyond the pale of the people that to this day no SCOTUS case has decided an issue related to the 3rd Amendment (Quartering of Soldiers if you didn't know).

Proponents of Originalism take the state of the world at the time it was written and what the common usage of the word was. The logic to assume otherwise is like saying that one should read the line of Hamlet "Get Thee to a Nunnery" as Hamlet telling Ophelia to join a convent... when his usage and intent track much more with the fact that when it was written, "Nunnery" was slang for "Whore House". Or for a more recent one, that Fred Flinstones and Barney Rubble were actually lovers with Wilma and Betty being their respected Beards... because when your with the Flinestones, you'll have a gay ol' time. Just because the way a word is used changed, does not diminish that it's common usage in the contemporary time changes.

  • 1
    Does it ban "punishment which is both cruel and unusual", or "cruel punishment and unusual punishment"? There's a linguistic ambiguity I would guess was present in the original time on whether the "and" is distributive or not. Is it just a list of types of punishment, or a single descriptor of one type of punishment? Oct 17, 2022 at 18:41
  • @zibadawatimmy Actually the ambiguity is not there. In logic the word "and" means that in order for something to be true, both terms must be true. Since cruel and unusual are both adjectives to describe a punishment, in English, we allow "Cruel Punishment And Unusual Punishment" to be truncated to "Cruel and Unusual Punishment" If the founders wanted both situations to independently factor into it, the use of "OR" or "NOR" would have been used. Consider 1A which protect five core freedoms and uses "OR" four times in it's text.
    – hszmv
    Oct 17, 2022 at 19:02
  • Meaning in logic and meaning in practical language usage are very different. Linguistic "or" is very commonly used for logical "XOR", for example. And I don't understand how you seem to be arguing against it being interpreted as a list when you specifically assert it is standard English to interpret it so? There's a lot of things the writers of the constitution could have made clearer, but yet failed to do so for one reason or another, so arguments on that ground strike me as deceptive and facetious. Oct 17, 2022 at 19:06
  • @zibadawatimmy But the framers were lawyers who do practice logic use of language and were very cautious to make sure that the language said what they wanted. Again, we can also check other sources where they wrote more heavily on the subject to find the meaning. IF they wanted to ban punishments that are cruel but not unusual and punishments' that are unusual but not cruel, they could have denoted the differences but as it stands there is no historical basis for this. Lots of punishments are cruel one could argue jail is cruel... but they are not unusual and thus have not been a problem.
    – hszmv
    Oct 17, 2022 at 19:13
  • Ultimately I'm not arguing against your claim being the established jurisprudence, I just don't think the argument you present for it in the answer is sound. Oct 17, 2022 at 19:14

I think the question assumes the Constitution has NO basis

Here is Calvin Coolidge, I could adduce a hundred others< the Constitution is based root and branch on eternal principles that must have prudential application.

"If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people. Those who wish to proceed in that direction can not lay claim to progress. "

CALVIN COOLIDGE 30th President of the United States: 1923 ‐ 1929 Address at the Celebration of the 150th Anniversary of the Declaration of Independence in Philadelphia, Pennsylvania

and what did Lincoln say about 'changing values" : “You cannot have the right to do what is wrong!”

― Abraham Lincoln

  • Neither Calvin Coolidge nor Abraham Lincoln can rightly be counted as originalists, a legal theory that was not well formed in the modern sense at the time.
    – ohwilleke
    Oct 17, 2022 at 19:45

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