The Conjunction in City of Grants Pass, Oregon v. Johnson

It took just two years for the City of Grants Pass to get its day before the Supreme Court in appealing the Ninth Circuit’s ruling mandating the use of city parks as homeless shelters. This case could have an impact on how the Eight Amendment’s “cruel and unusual” clause is interpreted.

Progressives tend to read the wrong conjunction in that clause. It has an “and” not an “or” which creates a hendiadys, the expression of a single idea by two words. So, it’s not a constitutional ban on all cruelty. This is not just an opportunity for judges to legislate their normative sense of what is cruel. Perhaps all punishment is cruel on some level.

The clause requires novelty. Imposing a monetary fine for illegal camping needs to be both cruel and unusual. Is the imposition of a fine for misuse of the commons, public property, unusual? That’s an easy question to answer. No, it is not.

Eric Shierman lives in Salem and is the author of We were winning when I was there.