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June 30, 2018

"Originalism and the Common Law Infancy Defense"

The title of this post is the title of this new article by Craig Lerner now available via SSRN.  Though I consider any article about the Eighth Amendment to be timely, this one seems even more so with the recent retirement announcement of Justice Anthony Kennedy, who was often a "swing" SCOTUS voter in Eighth Amendment cases.  Here is this article's abstract:

Justice Thomas and the late Justice Scalia consistently argued that the original meaning of the Eighth Amendment was to foreclose only those modes or acts of punishment that were considered cruel and unusual at the time the Bill of Rights was adopted.  With respect to juvenile criminal responsibility, this would mean that the Constitution contemplated an infancy defense no broader than what existed in 1791.  Yet the common law infancy defense, as sketched by originalist judges, seems barbaric.  It treated all fourteen-year-olds as adults, and it permitted the imposition of punishment — even capital punishment — on offenders as young as seven.

This Article argues that the common law infancy defense was more nuanced than modern observers often recognize.  With respect to misdemeanors, the defense was more broadly applicable than is typical today.  Even with respect to felonies, offenders under the age of fourteen could be found liable only after an individualized inquiry as to their capacity to distinguish right from wrong.  The eighteenth-century culture and common law had higher expectations of juvenile abilities than prevail today; and not surprisingly, young people proved more mature than modern adolescents, who are told repeatedly that they are frail and vulnerable.

This Article speculates on how the original meaning of the Eighth Amendment, assuming it incorporates the common law approach to juvenile responsibility, might be applied to modern conditions, given the diminished maturity of young people.  However, the Article questions whether young people today are as immature as advertised; indeed, the study of the common law infancy defense could prompt a reconsideration of contemporary attitudes about the capacities of young people.

June 30, 2018 at 04:32 PM | Permalink


I once tried to prank my 3 year old. I said, "This car is just like ours, let's steal it." I jiggled the key, finally got it open. She started yelling, "Bad Daddy. Don't steal the car. The police will come." So, yes, those of us who will become moral will do s by 7, perhaps by 3.

At 14, we are full adults, so says biology (defined as the ability to reproduce), the adulthood rituals of the world's religions, and 10,000 years of human civilization. A lot happens to a person at 14. Almost nothing happens at 18, that does not happen at 19. Far from being impetuous, adolescents are superior to adults in every sphere of activity. That includes morality, since they have lower rates of violent crimes than 20 year olds.

What the dunderheads on the Supreme Court, this nerds, book worms, who know shit about reality do not realize is that today's young people are infantilized, by rent seeking Democratic lawyers. They are capable of far more responsibility than they are given. And maturity does not come from brain function which is superior in them, but from experience and having to bear responsibility.

I lived in Iowa for 3 years. 12 year olds boys were running $300,000 combines at midnight because they had to or the corn would perish on the stalk. Thirteen year old girls were displaying their 400 lbs hogs for 4H at the State Fair. These kids were doing their chores at 5 AM, and catching their school bus at 7:30 AM. Despite this burden of farm chores, Iowa kids score the highest in the nation on standardized tests of educational attainment. How many of the Harvard jerkoffs on the Supreme Court thought that would be possible?

This article is ridiculous.

Posted by: Dsvid Behar | Jun 30, 2018 5:37:07 PM

Insofar as the article agrees with you, why is it ridiculous?

Posted by: Brad Heath | Jul 1, 2018 3:32:56 PM

Brad. Oh, yeah. Never mind.

Posted by: David Behar | Jul 1, 2018 6:24:14 PM

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