Considering that the First Congress authorized the death penalty for crimes like counterfeiting, and punishments like the pillory were still in use in the U.S. until well into the 1800's, no, I don't think the founders would have understood solitary confinement to be "cruel and unusual." The rack, drawing and quartering, flaying, etc, that's what the 8th amendment refers to.
I seem to recall you making a surprisingly originalist comment about the US Constitution before, as well. Do you really think the meaning of "cruel and unusual" doesn't evolve as we learn more over centuries? All kinds of things now regarded as indisputably abusive were taken for granted in the past (child abuse, to name one—or flogging for that matter). Solitary confinement seems like just this sort of thing, although one that is still somewhat early on the curve.
Even if you're one of those "living Constitution" people, at the very least terms like "cruel and unusual" must be defined relative to the broadly accepted social mores of the time. And treating solitary confinement as torture isn't just early on the curve, its something only a tiny minority of hyperliberals would consider to be true. I don't think the Constitution should be at the leading edge of social thought. It should lag behind until ideas are so clearly accepted as to be "obvious." Otherwise, it becomes a tool for peddling minority social viewpoints, which undermines its legitimacy in other regards. We're already feeling the effects of that today.
That all seems reasonable, though "living Constitution" sounds a bit silly to my ear—if that's used by advocates they should find a better name. On the other hand, the originalist thing seems flat-out dumb if it tries to deny that interpretations of past texts are always filtered through the present. One might as well exhume the authors and look for clues in their remains.
But never mind that—I'm more curious about this:
Otherwise, it becomes a tool for peddling minority social viewpoints, which undermines its legitimacy in other regards. We're already feeling the effects of that today.
> On the other hand, the originalist thing seems flat-out dumb if it tries to deny that interpretations of past texts are always filtered through the present.
There is nothing all that silly about it. It simply interprets the Constitution in the way you would a contract--based on what the parties intended the document to mean at the time of the agreement.
> What minority social viewpoints and what effects?
The death penalty would be a good example. Right now, support for the death penalty is around 60% among the American public. If a Supreme Court came along and found that "the living Constitution" meant that the death penalty was unconstitutional, despite the death penalty being common at the time of the founding and also supported by a majority of the public, that would undermine peoples' faith in the Constitution and the Supreme Court as an actual common agreed-upon framework as opposed to just another political tool.
Sometimes the Supreme Court has to spend that political capital, to bootstrap social change, but even when the decision is "right" in retrospect, it has an injurious effect on the institution itself. E.g. it becomes a lot easier for conservatives to dismiss the Supreme Court's opinion on something like giving Guantanamo prisoners habeas corpus rights when they can point to something like Roe v. Wade as evidence of the Court's political nature. It isn't just conservatives, of course. The Court lost enormous credibility among liberals in the 1920's and 1930's when it found all sorts of "economic rights" in the due process clause to strike down FDR's popular policies.
At this moment in history, faith in the Constitution and the Supreme Court is at historical lows on both sides, as a result of decades of liberal Courts using the bench as an instrument for social change on issues where there was no clear-cut consensus. Now, I happen to agree with those specific social issues, but that doesn't change the fact that this change came at high cost to the Court itself.
Originalism has a major advantage, and it is that when the Court isn't constantly finding new things in the Constitution, it can speak with far more authority on issues that were part of the original intent of the founders.
> There is nothing all that silly about it. It simply interprets the Constitution in the way you would a contract--based on what the parties intended the document to mean at the time of the agreement.
For contracts relating to small situations that would make sense, but for a piece of writing that is meant to apply to a whole country written by a few old men centuries ago is that really the most prudent choice?
We know so much more than they did -- e.g. science now tells us that we can actually quantify pain (both physical and emotional) with remarkable accuracy [1]. With the understanding and new knowledge that has become available in recent time it's likely that the founders would have had a totally different take on things, so I see slow and small nitpicky rectifications on minor points to be misguided in numerous respects since for all one knows founders' approach to several issues would have been altogether different if they had access to the abundant new findings and data that has only become available recently.
I'll give you an example: before I started getting into John Rawls writings, some contemporary philosophy (a lot of Sam Harris stuff), some writings on determinism, I was a libertarian. It was my access to new knowledge that informed my world view with a new and more scientifically rigorous take on things.
I had a longer reply, but somehow I don't think you're listening if the New Yorker is hyperliberal. Obviously solitary is not unusual, the questions are whether it's cruel, and whether it prevents recidivism and enables employment upon release.
> somehow I don't think you're listening if the New Yorker is hyperliberal.
I didn't say the New Yorker is hyperliberal. I said that the idea that solitary confinement is torture is hyperliberal (literally, "more liberal" than the liberal mainstream viewpoint).
> and whether it prevents recidivism and enables employment upon release.
That's absolutely irrelevant to Constitutionality. Something can be a stupid, ineffective, policy and yet be Constitutional.
> I didn't say the New Yorker is hyperliberal. I said that the idea that solitary confinement is torture is hyperliberal
Your exact words were, "only a tiny minority of hyperliberals would consider to be true". Since I had linked to the New Yorker which explores the issue in depth and gives significant credence to the idea, your aspersion quite apparently included the New Yorker. To say that it didn't is either revisionist, or you weren't clear with what you originally wrote. The New Yorker is a mainstream liberal publication.
> That's absolutely irrelevant to Constitutionality.
Agreed, but you also ignored the question about cruelty. I brought up those other points to make it clear that I'm not hyperliberal, not even necessarily liberal. I think it's good for our economy if ex-cons are able to work.
I believe the New Yorker and J. Law & Policy articles make a strong case for cruelty.
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