I agree that the final clause doesn't speak to proportionality.

Insomuch as it does not explicitly use the word "proportionate," I can't completely disagree, and a (read: "a single, among many") literal interpretation of the clause brings away the impression that it is proscribing specifically cruel and unusual methods of punishment. That it does at least this much is not seriously debated.

However, it's just as easy to read that "cruel and unusual" means exactly that punishment should be proportionate to the crime, and the Supreme Court has, on multiple occasions, come to that precise conclusion (for currently the only crimes for which capital punishment is constitutionally permissible because of that exact clause are treason, which is defined by the document itself, and crimes involving the taking of another human life).

Scalia's facile dismissal of this interpretation belies how far outside of the mainstream of legal scholarship he truly is on some topics (the other justices at least had the decency to pretend that the punishment in Ewing was not disporportionate, a conclusion Scalia rightly questions), and it would be a difficult case indeed to make among the majority of judges and scholars that there is no requirement for proportionality inherent in the eight amendment. Indeed, as you point out yourself, the very existence of a prohibition on "excessive fines" could be read to include prison sentences, and the case for such a lexical interpretation is not hard to make. Three seconds of browsing revealed that one definition of "fine" includes: "to reduce the size or proportions of." If we apply that to "time spent free from imprisonment" as the object (i.e., to "reduce the [convicted person's] time spent free from imprisonment,") voila: the eight amendment prohibits disproportionate sentencing. Surely a lexical stretch of equal magnitude, at minimum, is required to definitively make the case that the eighth amendment is silent on the issue.

Well, not if you listen to Justice Scalia, for whom there is no such thing as an unconstitutionally disporportionate punishment.

What's odd is that his concurrence ignores the rest of the very concise 8th Amendment: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

I agree that the final clause doesn't speak to proportionality. I'm not sure how else to read the second one, however.

Today's winners are the Tennessee Department of Revenue and its Commissioner Reagan Farr....

Then again, there is a question of proportionality. One can support the death penalty for premeditated murder but not for failure to file one’s income taxes.

Well, not if you listen to Justice Scalia, for whom there is no such thing as an unconstitutionally disporportionate punishment.

Cigarette surveillance program begins today Starting today, state Department of Revenue agents will begin stopping Tennessee motorists spotted buying large quantities of cigarettes in border states, then charging them with a crime and, in some cases, s...

Arlington and Fairfax Co. police would sometimes have an unmarked car in the parking lots of Georgetown liquor stores. Sometimes they'd rely on informants who received a percentage of the loot bounty.

The issue was resolved when DC made all consumables more expensive to buy in the city than elsewhere. Of course, that then led to DC residents making quick stops into VA to make their purchases. Saving $0.25/gal on gas or $5.00 for a carton of cigarettes is sometimes worth a detour. No good interstate booze deals, though, only better selections.

And there was a time, back in the days dairy farmers controlled Minnesota politics, when Minnesota did this to stop the smuggling of colored margarine from adjoining states. Margarine was only legal if uncolored and obviously different from butter.

When they do this, they talk big in the paper about fines and jail time for fire work violators. But in the real world, they just take the offending items.

If John Cole can't see the difference between protecting American citizens from terrorist threats and spying on Americans for cigarette tax money why are we even mentioning what he wrote? He would rather try and play games with conservatives instead tackling issues head on. That is the refuge of those who can't make a good argument.

My guess is that any Tennessee sheriffs who pull this stunt will meet a similar fate.