Samuel Bray | 4.21.2024 12:35 AM

On Monday, the Supreme Court will hear argument in an Eighth Amendment case, City of Grants Pass, Oregon v. Johnson. One thing I will be watching for is whether the justices in their questions treat "cruel and unusual" as two separate requirements, or as one.

Here are a few paragraphs from "Necessary AND Proper" and "Cruel AND Unusual": Hendiadys in the Constitution:

Read as a hendiadys, "cruel and unusual" would mean "unusually cruel." If "unusual" is taken as a term of art meaning "contrary to long usage," then the hendiadys would mean "innovatively cruel."

If "cruel and unusual" means "innovatively cruel," then there are no sequenced inquiries into whether a punishment is "cruel" and then "unusual." There is a single inquiry into innovation in cruelty. It is true that one could break this single inquiry into two analytical steps. First, is this punishment innovative? Second, does this punishment's innovation increase cruelty? Yet that is very different from the two steps associated with a two-requirements view. Those who see the phrase as containing two requirements typically ask first whether a punishment is cruel and then whether it is unusual, treating the two as distinct and unrelated........

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