|The Court of Chancery in the reign |
of George I
My son the historian just sent me an article from the Yale Law Journal which reveals that eighteenth century common law provided one. The context was the Eighth Amendment which prohibits “cruel and unusual punishment”.
The article explains that the above prohibition takes two forms:
“First, it prohibits punishment that were considered ‘cruel and unusual’ at the time of the Amendment’s adoption. Second, a punishment is ‘cruel and unusual’ if it violates the ‘evolving standards of decency that mark the progress of a maturing society.”What evolved in the Common Law after that amendment was ratified was the protection of “idiots” from capital punishment.
The Supreme Court has on three occasions argued that the term “idiots” in that context referred only to those who were “profoundly or severely retarded” and not those who were moderately or mildly mentally retarded.
How is that for progressive thinking? A term that distinguishes those with severe and profound disabilities from others with disabilities. The authors concede that the 18th century terms “idiot” and “lunatic” which crop up repeatedly in the article “likely sound jarring to the reader”. And we won’t argue with that.
So, the term, while on the books, has thankfully fallen into disuse. This leaves our children bereft of an acceptable label and leaves the search for one still on.
But the acknowledgement, two centuries back, that such individuals are significantly different from others with disabilities was insightful and progressive. Hats off to those old fogies.
P.S. The journal article, entitled “A Reassessment of Common Law Protections for ‘Idiots’", determined that those protections for ‘idiots’ actually included people with a wider range of intellectual disabilities than has been presumed – not merely the profoundly disabled. Consequently, it concluded, there are people on death row today who “likely would have been protected from execution in 1791”.