'Necessary AND Proper' and 'Cruel AND Unusual': Hendiadys in the Constitution
Constitutional doctrine is often shaped by the details of the constitutional 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, work together as a single complex expression. It is found in many languages, including English: e.g., “rise and shine,” “nice and fat,” “cakes and ale,” “open and notorious.” 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, while “proper” instructs us not to interpret “necessary” in its strictest sense. “Proper” also reminds us that the incidental power Congress is exercising must belong to an enumerated power.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.
And Unusual: Examining the Forgotten Prong of the Eighth Amendment
This essay examines the original understanding of the Cruel and Unusual Punishments Clause with a specific focus on the meaning of unusual. It is my contention in this essay that unusual must be explored in a separate and independent inquiry from cruel. In addition to discussing the original understanding of unusual - what it meant to the Framers and, more importantly, what it meant to We the People - this essay explores the correct level of generality we must use to decipher unusual. Arriving at the determination that the appropriate level of generality is the number of states that either have or do not have death penalty provisions, this essay concludes that the appropriate benchmark for determining whether a punishment is unusual is when three-fourths of the states forbid its imposition. Finally, this essay applies this three-fourths formula to the factual settings before the United States Supreme Court in Atkins v. Virginia (death penalty for the mentally retarded) and Roper v. Simmons (death penalty for juveniles) and asks whether we would be comfortable or confident with the results.
PLEASURE, POWER, AND THE PURSUIT OF COMMUNISM: SOVIET YOUTH AND STATE-SPONSORED POPULAR CULTURE DURING THE EARLY COLD WAR, 1945-1968
art, with certain students accused of “showing political immaturity, failing to understand the Party’s positions on art.” This episode constituted part of a broader crackdown on abstract art by the Khrushchev administration from late 1962, precipitated the the Soviet leader’s derision of such art forms in December 1962 at the Manege exhibit. Such instances demonstrate the limitations of the top-level promotion of youth grassroots initiative, as the Khrushchev leadership reigned in youth autonomy when it threatened to go beyond the boundaries of the permissible. The dates cited above have particular resonance, since both 1957-58 and 1962-63 represent two periods when those at the top of the Party hierarchy moved away from pursuing a more pluralistic, tolerant policy course, due to anxiety inspired by both sharpening Cold War hostilities and domestic developments. In these periods, official rhetoric censured what it labeled as 639 TsAOPIM, f. 635, op. 13, d. 546, ll. 56-57. This is likely related to criticism of the Party associated with the fallout from the Secret Speech and the Hungary invasion. For more, see Polly Jones, “From the Secret Speech to the Burial of Stalin: Real and Ideal Responses to De-Stalinization,” in Jones ed., The Dilemmas, 41-63. 640 TsAOPIM, f. 6083, op. 1, d. 52, ll. 166-67. 641 Susan E. Reid, “In the Name of the People: The Manege Affair Revisited,” Kritika 6.4 (Fall 2005): 673716. 642 On these anxieties, see Dobson, Khrushchev’s Cold Summer, 156-88.