David Chess reports that he has been listening to Supreme Court Justice Scalia. David suggests that rather than the “originalist” label that Scalia likes it is more accurate to call him a “temporal denotationalist.” Which is to say that the constitution denotes exactly what it denoted at the instant it was signed. He quotes this bit by Scalia:
I’m saying the Eighth Amendment means what was cruel and unusual and unconstitutional in 1791 remains that today. The death penalty wasn’t, and hence it isn’t, despite the fact that I sat with three colleagues that thought it had become unconstitutional. Executing someone under eighteen was not unconstitutional in 1791, so it is not unconstitutional today. Now, it may be very stupid. It may be a very bad idea, just as notching ears, which was a punishment in 1791, is a very bad idea.
Temporal denotation strikes me as being very stupid and a bad idea.
David then suggests we should pass the 28th amendment:
XXVIII. Cruel and unusual punishments shall not be inflicted.
While to the untrained eye this would be a no-op it’s revolutionary to the eye of the “temporal denotationlist” since it resets the clock!
This could make for great political theater force the various state legislatures to vote to reratify the constitution! Welcome them into the 21 century. Look at the benefits: the industrial revolution, modern medicine, the electron, the novel, science, … golly!