Morality as Static

Once again, I'm posting for Cesco due to continuing technical difficulties. 

Morality as Static

When responding to Dworkin on their differing interpretations of the Eighth Amendment, Scalia curiously notes that “[u]nlike animal populations, however, ‘moral principles,’ most of us think, are permanent. The Americans of 1791 surely thought that what was cruel was cruel, regardless of what a more brutal future generation might think about it. They were embedding in the Bill of Rights their moral values, for otherwise all its general and abstract guarantees could be brought to nought” (146). Scalia concedes that, like Dworkin, he views the Eighth Amendment as an abstract principle, yet to safeguard against potential “future, more brutal generation[s]” Scalia insists that the principle’s interpretation must be “rooted in the moral perceptions of the time” (145). In this move, Scalia places himself within Dworkin’s framework of expectation vs. semantic intent, but rejects the notion that moral principles put forth in the Constitution should be so abstract as to allow “philosophers to play with [them] in the future” (145). Despite Scalia’s argument, I strongly reject the notion that moral principles are permanent—and if they are to ever be permanent, I surely hope they are not those of 1791 or even today. I might be misinterpreting him, but in making this claim Scalia appears to imply that what we regard as cruel today (or in 1791) is authoritative over what future generations will regard as cruel. Some argue that solitary confinement is excessively cruel, yet given the lack of political tumult it appears that the majority of Americans do not think so. In 15 or 20 years, though, our sentiments might be different, and we might want protection from punishment of the sort. I understand why, for the sake of intelligibility (civilians understanding what laws bind them and what they mean), Scalia might want to “time-date” the meaning of Constitutional speech. But in requiring that, when our society finds a certain punishment that was previously allowed to now be cruel, we must pass legislation or amendments instead of appealing to the Constitution, Scalia seems to be imposing undue hurdles on social change. I resist that morality is static, or “permanent”—after all, the modern theories of justice (Rawls/Nozick) that we so frequently subscribe to are just over half a century old. Were our constitution to be founded in Aristotle’s time, where slavery was viewed as acceptable, yet the text contained some form of “equal protection for all,” would we necessarily need to pass amendments specifying that “all” today means something different from “all” at the Constitution’s passage rather than just interpreting the statute accordingly?