The Download of the Week is The Original Meaning of ‘Unusual’: The Eighth Amendment as a Bar to Cruel Innovation by John F. Stinneford. Here is the abstract:
Very briefly, my argument is that the word “unusual” was a term of art that referred to government practices that deviate from “long usage.” Under the common law ideology that came to the framers through Coke, Blackstone, and various others, the best way to determine whether a government practice comported with basic principles of justice was to ask whether it enjoyed “long usage” – that is, whether is was continuously employed throughout the jurisdiction for a very long time. The opposite of a practice that enjoys “long usage” is an “unusual” practice, or an innovation. The word “unusual” is included in the Cruel and Unusual Punishments Clause to direct courts to give scrutiny to new or innovative punishment practices; the assumption underlying the Clause being that when the government innovates in the realm of punishment, it often does so in the direction of greater cruelty.
The implications of recognizing the original meaning of “unusual” are not merely academic. In recent decades, both Congress and state legislatures have significantly increased the penalties imposed on criminal offenders for a wide range of crimes. Seven states have imposed the previously unthinkable punishment of chemical castration on sex offenders, and several more are currently debating the imposition of surgical castration – a punishment practice that fell out of usage in England in the 13th century. Such new punishments are often highly popular, and by that measure they comport with current “standards of decency,” which is the standard the Court now uses to determine whether a punishment violates the Eighth Amendment. Without a renewed recognition of the significance of the word “unusual,” courts will be powerless when faced with the primary danger against which the Cruel and Unusual Punishments Clause was designed to protect: The tyranny of enflamed majority opinion.
And a bit more from the text:
In the 17th and 18th centuries, the term “unusual” had many of the meanings we currently associate with the term: “rare,” “uncommon,” “out of the ordinary.”142 The word also had a more specific meaning, however, as a legal term of art: “contrary to long usage” or “immemorial usage.” A review of 17th and 18th century legal and political history shows that this latter meaning is the only one that may plausibly be attributed to the term “unusual” in the Eighth Amendment’s Cruel and Unusual Punishments Clause. To demonstrate this point, this section will move from the descriptive, to the normative, to the historical. Part A will show how the terms “long usage, “use,” “usual” and “unusual” were employed by English and American legal and political thinkers to describe the nature and function of the common law. Parts B and C will show how Edward Coke and William Blackstone used “long usage” as the primary measuring stick for determining whether a given governmental practice accorded with principles of reason and justice. Both Coke and Blackstone contrasted the “reasonable” punishment practices associated with the common law with cruel innovations imposed by the king and by parliament. Parts D and E will show that the founding generation of Americans shared the English conception of the normative power of “long usage,” and repeatedly used the term “unusual” to describe government actions that were contrary to fundamental principles of justice embodied in the common law. Finally, Part F will survey American case law from the enactment of the Eighth Amendment through the first half of the 19th century, and demonstrate that American courts consistently interpreted “unusual” to mean contrary to the long usage of the common law.
Highly recommended. Download it while its hot!