Take a look at Professor Nowak’s new article, titled Originalism’s Perseverance: The Implications of a Faint-Hearted Exception to the Cruel and Unusual Punishments Clause. Here is the abstract:

When Justice Scalia admitted that given the right set of circumstances he would potentially prove to be a “faint-hearted” originalist, he set off another wave of criticism asserting that originalism is an unprincipled theory of constitutional interpretation and construction. Despite the legitimacy to the argument that any theory of interpretation permitting judges to decide cases based on their own preferences is unprincipled, this Paper argues that a limited exception to the Cruel and Unusual Punishments Clause would not undermine the orginalist rule.

I have spilled some blog ink on Nino’s faint-hearted originalism, or as I call it, selective originalism. This is an interesting development.