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December 20, 2015

"'Necessary AND Proper' and 'Cruel AND Unusual': Hendiadys in the Constitution"

The title of this post is the headline of this intriguing paper I just came across on SSRN authored by Samuel Bray.  In addition to getting me thinking about the cool word hendiadys, this paper provides some interesting ideas for fans of Eighth Amendment.  Here is the abstract:

Constitutional doctrine is often shaped by the details of the text. Under the Necessary and Proper Clause, the Supreme Court first considers whether a law is “necessary” and then whether it is “proper.”  Some justices have urged the same approach for the Cruel and Unusual Punishments Clause: first ask if the punishment is “cruel,” then if it is “unusual.” That each clause has two requirements seems obvious, and it is has been the assumption underlying vast amounts of scholarship.  That assumption is incorrect.

This Article argues that “necessary and proper” and “cruel and unusual” are best read as instances of hendiadys. Hendiadys is a figure of speech in which two terms, separated by a conjunction, have a single complex meaning.  It is found in many languages, including English: e.g., “rise and shine,” “nice and fat,” “cakes and ale.”  When “cruel and unusual” is read as a hendiadys, the clause does not prohibit punishments that merely happen to be both cruel and unusual.  Rather, it prohibits punishments that are unusually cruel, i.e., innovative in their cruelty.  If “necessary and proper” is read as a hendiadys, then the terms are not separate requirements for congressional action.  The word “necessary” requires a close relationship between a statute and the constitutional power it is carrying into execution, and “proper” instructs us not to interpret “necessary” in its strictest sense.

To read each of these constitutional phrases as a hendiadys, though seemingly novel, actually aligns closely with the early interpretations, including the interpretation of the Necessary and Proper Clause in McCulloch v. Maryland.  The readings offered here solve a number of puzzles, and they better capture the subtlety of these clauses.

December 20, 2015 at 12:06 PM | Permalink

Comments

"Hendiadys is a figure of speech in which two terms, separated by a conjunction, have a single
complex meaning."

The principle makes sense -- "keep and bear" would be another example though cf. D.C. v. Heller. "Cruel and unusual" has repeatedly been used as a unit though some effort has been made to show such and such punishment is "unusual" specifically.

The application (innovative cruelty) is questionable. For one thing the normal understanding of "unusual" as "rare" is repeatedly applied here. The cruelty might not be "innovative" but use old practices that perhaps have been in disuse or are applied in an arbitrary fashion. This is not a "strange" limit since something that is rarely applied is often suspect especially if it is problematic for another reason (e.g., its cruelty).

The discussion -- seventy five pages of analysis resulting in suspect conclusions on the proper rule to apply -- is as is often in such cases interesting enough. The use of a cute term like "hendiadys" is something of a tell but maybe I'm being overly cynical.

Posted by: Joe | Dec 20, 2015 12:45:18 PM

Perhaps those states that keep secret where they got their execution drug weapons "are innovative in their cruelty."

Posted by: George | Dec 20, 2015 1:54:55 PM

What a retard. Does he honesty think a lawyer is capable of understanding hendiadys? It's two things which are one thing. Next, he'll ask lawyers to believe in three things that are one thing, the Trinity. Oh, please...

Posted by: Daniel | Dec 20, 2015 3:08:17 PM

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