erikmartin wrote:

To begin with, the words "cruel and unusual" do not mean the same thing that they meant 200 years ago.

Right, so under the theory that government power is only legitimate which is derived from the will of the people people, the only legitimate meaning of "cruel and unusual" in that amendment, is the meaning according to which the people ratified it.

It seems to me more reasonable that the power of the government should be derived from the people actually living under it presently rather then a completely separate group of people who died hundreds of years ago. The reason the people actually living under the Constitution today accept it as their government is because it resonates with their present values. To the degree that the community's understanding of what things like "cruel and unusual" mean has changed, the legal interpretation ought to change with it. Otherwise you have a situation where the Constitution says one thing that plainly means something particular to most people who read it, but the courts interpret that meaning in a way which makes no sense to a modern reader, and you have a paradox in which if the people want to amend the constitution so that it means what they want it to mean, they have to change the wording but they simultaneously cannot, because the wording actually says what they want it to say already.

In order to accept the "strict constructionalist" view one must claim that the 9th amendment is a "garnish" that has no real legal force or meaning. I think thats clearly insane and hypocritical.

To the contrary, the 9th Amendment is what mandates strict construction!

I agree. But the "Strict Constructionalist" movement presently in the US doesn't accept that. They maintain that all manner of regulations related to sexual morality, such as laws banning the distribution of condoms or homosexual sex, are constitutional because the ninth amendment doesn't really mean anything and so it doesn't apply. This arguement is at the heart of the debate over Roe V. Wade. The "liberal" position is that the 9th amendment prevents this sort of regulation. The "conservative" position is that the 9th amendment doesn't prevent regulation and was placed in the Constitution as a reminder and not a rule.

RE: Scalia Dismisses 'Living Constitution' - Yahoo! News