[N.B. I owe the inspiration for this post to Jeff Wall's Constitutional Law class, but the thoughts, errors, and conclusions within are all my own.]

Much of the talk about Roper in the hallways and in the blogosphere has been of the form, "Well, the 8th Amendment necessarily incorporates an evolving standard, so . . .", which is only sometimes met by the half-hearted suggestion that we should simply freeze in place the minimum standards in 1791 and 1868.

Why are these the only options? I am surprised that conservatives and originalists are not more ready to cite Justice Scalia's Harmelin opinion, which contains a long exploration of the way that "Cruel and Unusual" seems to have evolved from "Cruel and Illegal," and the likelihood that the English understanding at the time was that this clause forbade only punishments that were not authorized by law-- by either the common law or by statute.

Justice Scalia then cites United States v. Hudson and Goodwin, 7 Cranch 32 (1812)-- which held that circuit courts had no common law jurisdiction-- to conclude that the Eighth Amendment must have meant something different when applied to our Constitution, but it is not obvious that this is so, and I wonder why more is not made of this. For example, one could think 1) those who ratified and wrote the Eighth Amendment were unwilling to risk the possibility that Hudson & Goodwin would come out differently, and thus wanted the amendment as a safeguard, or 2) that the Amendment works a little more broadly, and now ought to function as something of a non-delegation doctrine for punishment, permitting punishments only so long as they are directly authorized by statute, rather than made up ad hoc by the punishing authority.

One fascinating implication of the latter approach would be to turn the Court's prison jurisprudence on its head. Far from getting special deference from the Court, maybe prison wardens are actually forbidden by the Eighth Amendment from administering punishments without clear and delineated statutory authorization.

Anyway, I have a lot more reading to do on the original history of the Eighth Amendment before actually pressing for this interpretation, but I am surprised that everybody (especially Scalia and Thomas) seems so ready to assume that "Cruel and unusual" mean something so different than they meant in the English Declaration of Rights.

Anthony Rickey has a long post up about the recent Roper decision, which I like not just because it agrees with much of my own. But one thing he said does motivate comment:

The truly pernicious thing about this decision, however, is that it is final, a victory cemented in stone.

If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the court of appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.

Before you get too excited about Justice Kennedy's failure to rebuke the Missouri Supreme Court for its presumption in anticipating overruling, you should note that Shearson and all the other cases cited in the dissent involve lower federal courts, not state supreme courts. The United States Supreme Court has supervisory authority over the lower federal courts and can, and does, have the authority to tell them how to proceed in general. It has no such authority, under either the constitution or statute, to "supervise" state courts, to whom it at least theoretically owes a duty of respect. Its only power is to reverse their judgments when they contravene federal law. Having decided that the Missouri decision did not contravene federal law, the Supreme Court has exhausted its authority. Hectoring state judges for being correct is not a constructive model for federalism.

Comfort Me with Apples - Ruth Reichl

If I could have any job in the world, professional food critic would be pretty near the top of the list--just slightly below prima ballerina for American Ballet Theater--and reading Ruth Reichl's memoir only increased the aura of glamour that I'd always associated with the job. What, after all, could be better than living the life of a gourmand on somebody else's dime, and then writing about it?

Though Reichl doesn't just talk about the delicious meals she eats, but also describes the disintegration of her first marriage, and the heartbreak she goes through when the birth mother of her adopted daughter decides she wants the baby back, her general attitude seems to be one of celebration of her ability to succeed at what seems like her dream career as well.

The food, of course, figures prominently, as she describes meals ranging from street food in Bangkok to foie gras and truffles from the Tour d'Argent--descriptions that generally provide a practical dissection of what exactly made a dish successful, rather than merely flying off into poetic but useless metaphors. Finding words to explain what makes a good dish good is hard, and success at it is the reason food critics get paid.

But most reassuringly, Reichl didn't get her first job writing about food until she was nearly thirty. While I may have missed the boat already as a prima ballerina, that still leaves me plenty of time to make it as a food critic.

Will's not the only one in a huff about Roper, though a little time has dampened all that to mere dismay. Still, last night I needed comfort food of sorts. Though I've got nothing against the macaroni & cheeses of the world, my taste in these cases does often run to the simpler side of French cooking. So, a picture of my veal cutlet is here, and the mushrooms and onions in cream here. Recipes below the fold, along with a brief note about why the veal cutlet is an escaloppe de veau and not a wiener schnitzel (as served at Figlmuller) or milanese sort of cutlet. I'll discuss the propriety of eating veal in my "What I'm Eating this Week" post, when I get to it.

Escaloppe de Veau - just pound a small veal cutlet to soften (though not too thin, I think), and then dip first in flour, then egg, then bread crumbs made from a good left-over loaf of white bread. Richard Olney says that the first coat of flour risks gumminess, but I haven't found that to be too dangerous. This, incidentally, is a French escaloppe de veau rather than its Austrian or Italian equivalents because wiener schnitzel is fried in lard, and Milan is in Italy's band of butter. Otherwise, they're the same thing.

Mushrooms and onions in cream - this is basically a classic french gratin, but I've added mushrooms. Boil some small onions in water for 15 minutes, remove from skins once cool, and put in a casserole with some sliced onions. Pour over enough cream to cover, roughly, and put in the oven at 350 F for 50 minutes. Flavoring can vary (nutmeg is thought authentic), but I used dried thyme because that was all I had. Yum.

I have been in a bit of a huff since Roper v Simmons came down yesterday, and many others have commented on the decision-- not just those I mentioned yesterday but also Chris Geidner, Nick Tarasen, Orin Kerr, Zev Berger, Brian Leiter, PG, Tom Smith, Dana Mulhauser, and Steve Dillard. But nonetheless a few readers have asked me for some thoughts, so here are a few. [As a preliminary matter I would like to remind Mr. Tarasen that this decision is not about whether the Constitution permits 17-year-olds to be tried as if they were adults-- it does-- it is simply about whether there is a special exception to that rule for executions.]

1: I must say that consensus analysis strikes me as a little surreal. If there were a real consensus that a particular punitive practice, once regarded as permissible, is now out of bounds, it would not happen any more. And if some small minority of states did continue to impose the now-abhorred punishment, a genuine consensus of states can always amend the Constitution-- indeed, that is the advantage of our constitution over the Articles of Confederation.

2: I think there are some contexts in which a reference to international law in a judicial opinion makes sense, like the interpretation of treaty language, or of textual language designed to implement a treaty, or of texts written early enough in our history that much of the relevant legal background of the authors was British law. But I must say that looking to treaties that the U.S. has refused to sign borders on genuine chutzpah.

3: The Supreme Court failed to rebuke the Missouri Supreme Court for directly overruling Stanford v Kentucky, which it shouldn't have done even if Stanford was wrong. I recently pointed out to Professor Leitzel that the high court does not take it well when lower courts directly overrule Supreme Court precedents; apparently there will now be a new paradigm for eighth amendment cases, where lower courts are free to find consensus (or a lack thereof!) even when a recent Supreme Court case has gone the other way.

There is much more that is baffling about the decision, but too much to wade into right now, especially since so much of it is already done by the dissents, and one of my complaints may yet turn into an article. One last thought-- a major advantage that defendant Simmons had going into this is that it was already conceded that there is a constitutional rule barring the execution of those under the age of 16 when they committed their crime, so this case just dealt with a change in the boundary line. Indeed, Mr. Waxman made this exact point in his opening statement at oral argument (PDF):

Everyone agrees that there is some age below which juveniles can't be subjected to the death penalty. The question here is where our society's evolving standards of decency now draw that line.

I adore the rain, even though it can wreak havoc on books, cameras, and iPods. But foes of precipitation should consider moving to Moscow, where Mayor Luzhkov apparently keeps rain away by seeding the clouds before they make it to the city when big events are planned.

Update: Paul Goyette has more.