To paraphrase the Gettysburg Address: Sixteen score and five years ago our Protestant fathers brought forth on this continent a new law to cement a coup d'etat in the United Kingdom to ensure that their friends-and-relations got their nose in any pork-barrel which the government might roll out of Westminster. The winners, who wrote the history of the troubles times of the 1680s, call the transfer of power The Glorious Revolution and its legal framework was the Bill of Rights, signed into law 16th December 1689. The Act is obviously partisan:
- That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.
and freedom of speech is explicitly limited to Parliament (i.e. the framers of the document)
- That the Freedome of Speech and Debates or Proceedings in Parlyament
ought not to be impeached or questioned in any Court or Place out of
but they did coin the resounding phrase
- That excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted.
The same wording became the Eighth Amendment to the US Constitution. Simple enough you might say, and it certainly trips off the tongue, but it all depends on what you mean by Cruel and Unusual. Like the Talmud's commentaries on the word of God (the Torah), the original score of words has become the foundation of a teetering cliff of interpretations in the years that have followed. Because it is a constitutional issue, matters invoking the Eighth Amendment eventually claw their way upwards to the US Supreme Court. There, we have seen a useful tension between modernists who want the Eighth to " . . . draw its meaning from the evolving standards of decency that mark the progress of a maturing society
." against the 'originalist' position "the proposed Eighth Amendment would have been laughed to scorn if it had read 'no criminal penalty shall be imposed which the Supreme Court deems unacceptable.
'" I know where my sympathies lie.
One theme in the interpretations of cruel-and-unusual has been "A severe punishment that is obviously inflicted in wholly arbitrary fashion.
" which is fair enough, but lots of cases arise where because predictable, the punishment cannot be considered arbitrary. Young black men know that they will get a different sort of justice to young white chaps with a nice suit and short hair; and the Supreme Court tends to uphold the constitutionality of such cases on the rare occasions when there is money enough to fight the case up through the courts. So the tendentious nature of the original document continues to barrack, bully and degrade "the other" although that frightening entity (read bugaboo) has shucked off its belief in the supremacy of the pope and acquired a much better tan over the last 325 years and a day.
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