Jeffrey Toobin reports:
I asked Ginsburg whether some people really believe that the Constitution means only what it meant in 1787.
“Nobody thinks that entirely–nobody, not even my dear colleague, you know,” she said, referring to Scalia. “Think of cruel and unusual punishment. Just go to the jail at Williamsburg. We don’t put people in stocks anymore. It would certainly be, in anybody’s book, cruel and unusual to give somebody twenty lashes, to hang you for being a horse thief.”
I agree on the “hang you for being a horse thief” part. I think I’m on safe ground opposing capital punishment for horse theft. Back in the old days, they used to execute people for forgery, but nowadays the penalties for that crime are less severe.
But I disagree with Ginsburg, at least in theory, on flogging. See P.S. here. Sticking someone in prison for several years, that’s what’s barbaric nowadays. And I’m disappointed to see a federal judge making the statement above in a seemingly unthinking implicit endorsement of the way things are done now.