Death, Desuetude, and Original Meaning

II. DESUETUDE AND ORIGINAL MEANING Scalia-type originalism and living originalism both tend to ignore the word "unusual" in the Cruel and Unusual Punishments Clause, treating the Clause as a bare prohibition of cruel punishments. (137) The reason for this is fairly obvious: there is no clear connection between a punishment's rarity and its cruelty. A law mandating the public torture of all sex offenders, for example, would seem crueler than a law calling upon courts to impose torture only on rare occasions. Given the lack of an intuitive connection between rarity and cruelty, it is natural and predictable that courts and commentators would largely ignore the word "unusual." (138) This understandable neglect is based on an interpretive error. As I have shown in previous articles, the word "unusual" in the Cruel and Unusual Punishments Clause does not mean "rare," but "new." (139) More specifically, it means "contrary to the long usage of the common law." (140) The Cruel and Unusual Punishments Clause forbids punishments that are cruel in light of longstanding practice. A. Common Law, Custom, and Long Usage As described in Part I.A.4, above, Justice Scalia presents two views of the common law in his account of constitutional interpretation. He claims that at the time the Constitution came into being, the common law was falsely seen as "a preexisting body of rules, uniform throughout the nation." (141) Justice Scalia argues that the Legal Realists debunked this view, showing that the common law is nothing more than judges making up law as they go, based on their view of "the most desirable resolution of [any given] case." (142) Although this narrative is widely shared among lawyers and academics today, it is false. At the time the Constitution was adopted (and for centuries prior to that time), the common law was not seen as the product of judges exercising a "legislative function," (143) nor was it seen as the series of fixed, transcendent rules Justice Holmes mockingly described as a "brooding omnipresence in the sky." (144) Rather, the common law was considered to be a kind of customary law--the law of "custom" and "long usage." (145) The basic idea was that a practice that enjoyed long usage throughout the jurisdiction obtained the force of law, despite the fact that it had never been mandated by king or parliament. (146) Such laws were considered normatively superior to laws imposed by the sovereign because long usage guaranteed that they were reasonable and that they enjoyed the consent of the people. These ideas were stated succinctly in 1612 by Sir John Davies, Attorney General for Ireland, in the Dedication to his Irish Reports: For the Common lawe of England is nothing else but the Common custome of the Realme:.... For a Custome taketh beginning & groweth to perfection in this manner. When a reasonable act once done, is found to bee good & beneficiall to the people, & agreeable to theire nature & disposition, then do they use it, & practise it, againe, & againe, & so by often iteration & multiplication of the act, it becometh a Custome, & being continued without interruption time out of minde, it obtaineth the force of a lawe. And this Customary lawe is the most perfect, & most excellent, and without comparison the best, to make & preserve a commonwealth, for the written lawes which are made either by the edicts of Princes, or by Counselles of estate, are imposed uppon the subject before any Triall or Probation made, whether the same bee fitt & agreeable to the nature & disposition of the people, or whether they will breed any inconvenience or no. But a Custome doth never become a lawe to binde the people, untill it hath bin tried & approved time out of minde, during all which time there did thereby arise no inconvenience, for if it had beene found inconvenient at any time, it had been used no longer, but had beene interrupted, & consequently it had lost the vertue & force of a lawe. …