Historical prevalence of a practice does not immunize it from the Eighth Amendment.
Evidence
The majority’s historical argument had a specific problem that the dissenters pointed out: the historical prevalence of a practice does not establish that the Eighth Amendment was intended to permit it in perpetuity. The Eighth Amendment has been held to apply to practices that were common or even universal at the time of its adoption — flogging in the military, for instance, was common in 1791 and has been held to violate the Amendment when applied to modern soldiers. The question is not what was practiced in 1791 but what the evolving standards of decency, applied to the specific practice at the specific time of decision, require. — , The Rod and the Child, 9425
Categorization
- XREF: Connects to the ‘living-instrument doctrine’ contrast drawn later in the chapter and in the Tyrer episode. — connects to: The Ingraham decision confines Eighth Amendment protection to convicted criminals, excluding schoolchildren. — , The Rod and the Child: A Global History…, 5204; US schools may paddle because the Eighth Amendment does not apply — , The Rod and the Child: A Global History…, 12855; Forms of constitutional argument are validated by their presence in practice, not by approval — Philip Chase Bobbitt, Reflections Inspired by My Critics, 437 (+1 more)
Related
- US schools may paddle because the Eighth Amendment does not apply (similarity 0.79)
- The Ingraham decision confines Eighth Amendment protection to convicted criminals, excluding schoolchildren. (similarity 0.79)
- School openness and post-hoc damages justify excluding students from Eighth Amendment protection. (similarity 0.79)
Broader Connections
- US schools may paddle because the Eighth Amendment does not apply
#contradicts(0.80) — , The Rod and the Child, 12855 - School openness and post-hoc damages justify excluding students from Eighth Amendment protection.
#contradicts(0.75) — , The Rod and the Child, 9423 - Forms of constitutional argument are validated by their presence in practice, not by approval
#contradicts(0.70) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 437