Eugene Volokh has allowed himself to be persuaded, rather conveniently and all too easily, that his position about deliberate cruelty as punishment was "mistaken"... because so many people disagree with him so vehemently that an amendment to the constitution allowing cruel & unusual punishment for cases he deems "monstrous" (as opposed to just regular old rape & murder) would cause... get ready... a logjam in the judicial system.

This is clearly just a post hoc cop-out for Volokh. In his original post he lamented that the Constitutional amendment could never come about in the first place because of the self-same opposition. So, in his idealized world, where everyone saw the beauty of his moral thinking on cruel & unusual punishment, there would be no log-jams in the court system... the opposition that would cause it would not exist, for the same reason that the amendment could pass in the first place. Remember, he was arguing that we should do this to "monsters"... not that we actually could. So his argument from too many opponents is just a cheap cop-out.

What he will not address is what theory of justice he holds under which one sees a compelling reason that we should torture the "monsters". And that's because his view isn't rooted in justice.

Glenn Reynolds also welcomes the facile excuse to backpedal out of an unpopular (and indefensible) position.

To both of them, from Vizzini: Did I make it clear that your job is at stake?!