Justice Alito to sit out next State of the Union address. The WashingtonTimes.com

Mark Sherman said:

In a recent speech in Washington, Stevens reached back to 1991 to take Scalia to task for his opinion in Harmelin v. Michigan, a case that upheld a life prison term for cocaine possession against a challenge that the sentence was cruel and unusual.

Scalia, Stevens said, concluded in his opinion that the Eighth Amendment prohibited specific kinds of punishments, including drawing and quartering and disembowelment, "but contained no requirement that the punishment fit the crime."

Even a life sentence for a parking ticket would not have violated the Constitution under that reasoning, Stevens said.

The real issue, the 90-year-old retired justice said (and not for the first time), is Scalia's faulty reliance on originalism to interpret the Constitution. In Scalia's view, judges should give a fair reading to the words of the Constitution as they were meant when they were written.

But Stevens said that "reliance on history, even when the interpretation of past events is completely accurate and undisputed, provides an insufficient guide to the meaning of our Constitution."

Instead, he said, the Eighth Amendment "responds to evolving standards of decency in a maturing society."

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