"Evolving Standards of Decency." Or Not.

Here is an 18th century image that suggests that the sexual humiliation of detainees may have rather deep roots in the American psyche.

Associate Supreme Court Justice Clarence Thomas rejects the concept of dynamic meaning in a "Living Constitution."  He and fellow Associate Justice Antonin Scalia adhere to strict constructionism and its focus on original intent rather than new interpretations of the Constitution in a modern context.  By the logic of Thomas's dissenting opinion this week in an 8th amendment case, he might deem the actions depicted in this image to be evidence of the standards of the day at the time the Bill of Rights was adopted, and therefore Constitutionally justified. 

There are 100 years of precedent and case law regarding “the evolving standards of decency that mark the progress of a maturing society” that run counter to Thomas's opinion.  Sometimes interpretations that consider "the evolving standards of decency" are pejoratively dismissed as judicial activism. 

I'm not at all sure that such labels apply exclusively to those whose "liberal" judicial philosophy inclines toward pragmatic interpretation of the words and intent of the Founders.  Who is more activist than a fundamentalist, whatever his or her political persuasion?

In any case, whether or not the extra legal punishment depicted in that image of a tarred and feathered captive being threatened with diabolical sodomy is Constitutional under the 8th Amendment, it is clearly protected speech under the 1st.  Unless used to threaten a detainee.  Then it depends on the judicial philosophy of the majority of Supreme Court members.

Comments

[Tim Abbott]

I do not know its provenance. I came across it here: http://www.1776mag.com/tar-and-feather-the-british-6-illustrations/\

[Larry Cebula]

Fascinating. Where is this from?

[Tim Abbott]

Ewe said it.

[theo]

Ewe.