Re: What everybody ought to know about Baze v Rees (redux)
Interesting post. I'd like to comment on only one narrow aspect of it: the citation of Scalia's comment that the standard is 'cruel and unusual' rather than 'painless.' As you said (quire rightly, I think), 'cruel and unusual' carries some cultural connotation; it's meaning has certainly changed with time. Moreover, the words by themselves are somewhat vacuous - there isn't really much content in that concept to help the judicial system with figuring out some guidelines regarding methods of execution. But if we are going to have some guidelines (we must!), then we - well, the judicial system - must give those vacuous words some content. I am not here going to suggest an argument for one method or another (though I happen to agree that if there is a less painful method, why not use it?), I simply want to make the point that in excluding certain notions (e.g., pain), Justice Scalia has already begun to give some content to the otherwise vacuous phrase. In excluding some content, he is already committed to the idea of delineating the content of the phrase 'cruel and unusual.' If he is thus committed to the idea of delineating some content for the phrase, what does he suggest?
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