Originalist Indexicals
As an example of originalism, Scalia said the death penalty was not covered by the U.S. Constitution’s prohibition against cruel and unusual punishment. At the time that clause was adopted, he said, the death penalty was a standard punishment for a felony. If people want to ban it, they must amend the Constitution or vote to abolish it at the state level, he said.
This doesn’t seem to be a claim about originalism, but a claim about indexicals. The Bill of Rights also says “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner”. Imagine, after the Constitution was ratified, I purchased an old Revolutionary War barracks and made it into my house. Does Scalia believe that the government can quarter soldiers there because at the time the third amendment was adopted that was a standard place to quarter soldiers? Is the only way to fix this to amend the Constitution?
This seems ridiculous. Clearly by “any house”, the Constitution does not mean “any house existing at the time this Constitution is ratified”. So why does Scalia think “cruel and unusual punishment” means “what’s considered to be cruel and unusual punishment at the time this Constitution is ratified”? What matters is that it’s a house now and that it’s cruel and unusual now, since now is when the law is being enforced.
Updates: Let’s say, for the sake of argument, that “unusual” means “not habitually done” and house means “building inhabited by a family” both then and now. Then the meaning has not changed, there is no issue of original meaning to be recovered here. What has changed is the extension: there are different places in the world that meet the description “building inhabited by a family” and different acts that meet the description “not habitually done”. Both my imaginary house and the death penalty weren’t in the extension when the Constitution was ratified, but they clearly are now.
(Of course, it’s also possible that the ratifiers were mistaken: the death penalty was equally “cruel and unusual” then as it is now and they just didn’t realize it. It’s also possible they were weak: it was cruel and unusual then but they kept doing it because the laws weren’t properly enforced.)
Julian Sanchez (via Twitter) argues I’m making a type/token confusion. So instead of talking about that particular barracks-turned-house, let’s talk about a class of houses. Imagine when the Constitution was ratified nobody lived in caves and now a lot of people do (it’s a hipster thing). Obviously the entire type of “caves” was not considered to be in the extension of “house” when the Constitution was written, but it clearly is now. I think it’s clear the third amendment would apply to people who live in caves, even though it obviously wouldn’t apply to your cave when the Constitution was ratified.
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