A state judge in Kentucky has ruled the use of lethal injection constitutional in that state but made a pretty fine distinction on what is "cruel and unusual" punishment. It is not cruel and unusual, he said, if the injection is administered through a vein in the arm or leg, but it IS if the injection goes through a catheter stuck in the prisoner's jugular vein. Let's see: Behind the moment of injection is probably a lifetime of depravity or at least cruelty toward others, and ahead of it is eternity, and it makes a difference what the prisoner experiences in those few seconds? Something must be escaping me.
I don't think the constitutionality of the death penalty is settled, by the way. Certainly I am much more a constitutional literalist than I am a "living document" adherent (and I much admire Clarence Thomas' natural-rights view), but if the framers left something general, didn't they mean for us to fill in the specifics? The 5th Amendment lists life as one of the things we can't be deprived of without due process, so back then they certainly didn't consider capital punishment cruel and unusual. But the 8th, adopted at the same time, prohibits cruel and unusual punishment without specifying what it is. Does that not leave us free to define it as our concept of justice and its dictates evolves? Just asking.
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Although, specific language in the Constitution may appear to be general in nature, all one needs to do is read the Federalist Papers and other documents that were left by the founders and most of the generalities were cleared up, left to the states, or covered in the 9th amendment. Thomas' view of Natural Law and how the Constitution should be applied is in lock step with the views of the Founders.