After several of us piled on Andrew Stuttaford yesterday, it occurred to me that we should give him (and Justice Kennedy) this: The Eighth Amendment’s prohibition on “cruel and unusual punishments” at least appears to pose a problem for originalists–at least for those originalists who believe that the every provision of the Constitution must be enforced by the federal courts (or must be read in a way that makes such enforcement possible). The language is vague in a way that allows it to be read as incorporating a kind of principle of, well, evolution. Does the amendment ban punishments that were thought cruel and unusual at the time of ratification, or those considered cruel and unusual today, or some class of “objectively” cruel and unusual punishments (however those would be determined)? I’m not sure that knowing that we should be guided by the plain meaning of the words, as historically recovered, gets us all or even most of the way to an answer.

One possible answer, at least for those of us who don’t have a court-centered view of the Constitution, is that to the extent a provision is vague the courts have less warrant for judicial review under it. But I can’t see any plausible answer to the question that justifies casting aside both the historical practice of allowing the death penalty for juveniles and the judgment of legislatures that the practice should be continued.