Intriguing HLR note on the history of punishment and the Eighth Amendment

The latest issue of the journal that our new President once ran includes an intriguing Note titled, “The Eighth Amendment, Proportionality, and the Changing Meaning of ‘Punishments’.”  This Note discusses punishment history, a topic I always find interesting, in service of an argument about the appropriate way to interpret the Eighth Amendment for monder times.  Here is a key paragraph from the Note’s first few pages:

This Note insists … that one cannot effectively discuss the Eighth Amendment in terms of original intent without examining the word that follows “cruel and unusual” in the constitutional text.  The system of “punishments” that existed at the time of the Founding was fundamentally different from that which exists today.  The Cruel and Unusual Punishments Clause was written in the context of a system that relied to a large extent on public participation in punishments.  Critically, this system of primarily “public” punishments was one in which true proportionality was neither a realistic possibility nor a theoretical imperative.  Not long after the Founding, however, this system began to collapse and was gradually replaced by a new system that depended on different methods and a different logic — and that ultimately developed into the system of punishments that exists today.  This new system employed as its primary means a markedly nonpublic method of punishment, incarceration, that could be made eminently proportional.  Additionally, the system relied on the notion that punishment must be proportional in order to be effective.  The gap in meaning between “punishments” at the time of the Founding and “punishments” under the system that subsequently developed make problematic Justice Scalia’s claims about the intention of the Framers as to proportionality in punishments generally.  The Framers may have intended not to ban disproportionality in the existing system of public punishments.  But it is doubtful that this gives us any direct evidence on the intention of the Framers regarding proportionality in the new system of nonpublic punishments.