"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
-Ninth Amendment

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
-Tenth Amendment

Why have we allowed our federal government to behave as though these two Amendments are not in the Constitution?  The Constitution is supposed to tell our federal government the few things it is permitted to do.  Are we electing people who behave this way?  Are they placing judges on the bench who understand this?

Our Constitution limits our government.  It tells our government specifically what it can do.  This is not how things are practiced these days, but it is how they should be.  Limiting government maximizes our freedoms.

Our Constitution isn’t there to list all of our rights.  Unless otherwise stated, we, the people, are supposed to retain all rights.

The founders of our nation had a lot correct and constructed a brilliant Constitution.  Once the evil of race-based slavery was abolished and it was recognized that each and every person has rights such as those enumerated in the Constitution, we were on the right track.

But what are rights and where do they come from?  What’s the difference between a freedom and a right?  What should be the role of government in our lives?  I've written about these things before.

Here are some of my other entries relevant to this issue:

We Still Have the Power

Rights Are Not Hand-Outs, and Hand-Outs Are Not Rights

Not All Freedoms Are Rights

Imaginary Rights

Legislating For Feelings?

Should Your Government Be Doing This?

Ask Not What the Government Will Do For You

Nobody Owes You a Job

Who Owns Your Earnings?

Funding Government: Of Fees and Taxes

Time For Education to Evolve (Featured in Townhall Magazine)

As expected, marriage neutering activists took to the streets to demonstrate yesterday.  The paper, in an article by Dan Morain and Jessica Garrison, covered one demonstration in West Hollywood.

Demonstrator Chris Moll, 35, who was married in October and was carrying his 18-month-old daughter, Ella, in his arms, said the election did not alter his feelings about his marriage.

"Whatever happened last night does not change how I feel about my husband and my family," Moll said. "It is a tough feeling, but I know this is a strong community, and I know we'll find the next step."

Where is that girl’s mother?  Will she grow up thinking mothers – and women – are unnecessary?

More reporting on the protests is in this article by Nathan Olivarez-Giles.

Protesters demonstrating against Proposition 8, the gay marriage ban that voters approved Tuesday, clashed with police in Hollywood late Wednesday.

The Los Angeles Police Department issued a citywide tactical alert, requiring all available officers to respond to the protest, LAPD spokesman Officer Jason Lee said.

No surprises here.

One of the blogs at the paper has comments from someone who got one of the neutered marriage licenses when they were available.  These stories always point out if these couples have been together for years, as if that makes it marriage and if that means we should license it as marriage.  No matter how long an apple sits under and orange tree, it is still an apple.

"I'm a taxpayer, and organizations out there, if they want to ban marriage between same-sex couples, they have a blessing on that," Resendez said. "But if City Hall can perform a marriage and I'm paying taxes to run City Hall, then I should be able to get a marriage.”

That doesn’t hold up.  I pay taxes, but I’m not eligible for all programs the city offers.  Even if I pair up with someone else.

Some of the comments on the blog entries caught my eye.

“Mark” wrote:

How 'bout this?...I think if the proponants of proposition 8 want a return to "Traditional marriage"..I say we start collecting signatures to put another initiative to ballot..making divorce illegal in California.

Go for it, Mark.  That there is divorce does not make other kinds of relationships marriage, though.

Since 100% of the straight married couples that I know, have cheated on one another (They take marriage sooooo seriously)

Who are these people you hang out with, Mark?

I think that another great initiative to start collecting signatures on would be that all "All people who commit adultury should be buried to their necks in the dirt (Preferably in the town square) and stoned to death"

Go for it, Mark.  It’s a free country.  Still.

I'm so tired of hippcrites and people who quote religion and then pick and choose the items and commandments that they "Feel" they will live by, or not.

Actually, that’s called taking the whole Bible as it was intended.  You see, some commandments are given to certain people for a certain time or place, and some things are given to all.  It isn’t an arbitrary picking and choosing.  There are countless Bible study groups you can join, if you’re really curious.

“Tonya” wrote:

Doesn't the Consitution guarantee people the right to persue happiness.

The Constitution makes it clear that the people have natural rights that belong to them, and that the government should be limited and should protect rights.  You are free to pursue happiness only insofar as it does not obligate anyone else without their consent.  For example, counterfeiting might make someone happy, but they aren’t allowed to do it with impunity, and the state certainly shouldn’t aid them in counterfeiting.

The paper has this editorial tying in Obama and Prop 8.

On an election day when civil rights took a breathtaking leap forward, it was disconcerting to see the cause also fall abruptly back with the passage of Proposition 8.

It is not disconcerting for the people to take back control from the courts.

Some supporters of same-sex marriage look at the ballot results and understandably conclude that California voters, with their passage of the humane farm rules in Proposition 2, care more about the rights of chickens than of gays and lesbians.

I actually heard audio to this effect.  Someone said California is “where chickens have more rights than gay people."  It is an incredibly ridiculous statement.  (I was against Prop 2, by the way – "Their chickens, their choice", I said.)  But a homosexual person has the exact same rights I do, which is a lot more than chickens... who have more rights than human beings in the womb.

The editorial plays the race card again, invoking Loving vs. Virginia.  Yawn.  You lost.

Then they go on to talk with hope about the older voters dying off so that the younger voters, many of whom have been indoctrinated by homosexuality advocacy in the public schools and media, will take their place and vote to neuter marriage.

Finally, John Corvino, philosophy professor at Wayne State University, has a commentary.

He talks about the confusion and disparities caused by the different laws in the country and the months of issuing neutered marriage licenses in California, before going on to play the race and "minority" cards.  Which makes me wonder what other minority classifications we have yet to discover to add to the law?  Why stop with sexual orientation?  Why not nutritional orientation?

Traditionally, a key role for the courts has been to protect minority interests against the whims of the majority.

In this case, the court imposed the tyranny of the minority on the majority, and we voted for our freedom, thank you very much.

To that minority, a bare majority of California voters sent a discriminatory message: You are not good enough for marriage.

No, we didn’t say that.  We said that you can't force a change on what marriage licensing is in an effort to force a change on what marriage is.

Your relationships -- no matter how loving, how committed, how exemplary -- are not "real" marriage.

Well, no they aren’t.  But that was a separate issue.  What’s next?  Doctors telling women than their vaginas are not penises?  Telling men they can't get pregnant?  Oh, the horror of it all!

But "real" marriage transcends state recognition of it.

It sure does.

Because it's not just about what California should or should not legally recognize.

That was exactly what Prop 8 was about, right behind who should decide.

We will demonstrate that, like everyone else, we are worthy of having someone to have and to hold, for better or for worse.

Okay, but that doesn’t mean we have to give you a state-issued marriage license.

Ever since it became clear that Prop 8 had passed, there has been more talk about the "revision" vs. "amendment" to the state constitution, and how could people vote in such a change when some people think it conflicts with another part of the Constition?  I have news for such scoffers.  The federal Constitution was written by and voted in by people.  So was the state constitution.  So the people can continue to change the state constitution by vote.  Courts did not create either document.  The Constitution provided for, and instructed, the courts.  There were amendments to the Constitution that conflicted with the parts that said slaves were to be counted as three-fifths of a person.  We can change our constitutions, especially if the courts overstep their authority.

The Constitution does not enumerate all of our rights.  The Ninth and Tenth Amendments were included to make that clear.  The Constitution exists to tell government what it can do (not to limit what we can do), and the Bill of Rights was added to make it clear that there were rights we naturally have that the government should protect.

One of the problems of certain bad court decisions is that they deny or infringe upon the rights of some individuals to create “rights” for others.  It should not have been up to courts to deny the right to life to the unborn.  If the people of this nation truly thought the privacy of a doctor-patient relationship should trump the right to life of the unborn, an amendment could have been passed to codify that into law.  Instead, courts overstepped their authority to make that change without it being explained in the Constitution, placing those who believe that the unborn have a right to life in the position of either fighting for a Constitution Amendment, or trying to get the court to reverse itself.  That created a culture war.

Likewise, there shouldn’t even be a need for a Constitutional Amendment (federal or state) explaining that state-licensed marriage will be between and man and a woman.  Given history and recent votes, it is those who want a change in marriage licensing that should have needed a Constitutional Amendment.  Instead, our side is left to propose Amendments.  There is a natural right for a child to have both a mother and a father, as it naturally takes both a man and a woman to create a child.  There is no natural right to have your romantic partnership licensed by the state.

Yet we are, with the California Supreme Court creating a “right” out of thin air that will be used to further deny the natural rights of children.

The marriage neutering advocates cite in vitro fertilization, various forms of third-party reproduction, out-of-wedlock births, divorce, and adoption as ways that children are already finding themselves in homes without a mother or without a father.  They cite this as a reason why we should all go along with neutering state marriage licensing, so that same-sex couples will be able to raise such children in a “married” home.  I agree that children are ending up with same-sex couples through such means – that is a fact.  And as I've said, sometimes adoption into a home headed by a same-sex couple is the best available option.  But I disagree that this should compel us to sit back while a court forces a change on all of us.

Instead, it is leading me to believe (along with the case in which there was a “right” to IVF established)  that a marriage amendment is not enough.  We need a child protection amendment.  It is ridiculous that our society has gotten to this point, where the rights of children and the rights of others are trampled enough that this is the only way to protect those rights, but we’re there.

I know such a thing is a nearly impossible longshot, because once you have created “rights” for people they take anything that might limit those things as akin to murdering them.  (Remember how Prop 22 was going to lead to mass killings of people in the street, according to the homosexuality advocates?  Yeah- didn’t happen.)  Any proposal of a child’s rights amendment would be met with concern about “reproductive rights”, “privacy rights” and such.  And, of course, the Left thinks “children’s rights” means that the Left has a right to indoctrinate your child against your will and have the government act as their parent even when they have perfectly capable parents.

But just as I do not buy that there is a right to a state-issued license, I do not buy that there is a right to IVF or third-party reproduction.  Unless we’re talking about rape, child conception is voluntary on the part of the parents.  It is never voluntary on the part of the child.  So, although I doubt it will ever happen, I think perhaps it would be a good thing if we had an amendment that recognized the natural rights of a child to a mother and a father.  This would prevent unmarried people and anyone who couldn’t provide a child with both a mother and a father from claiming a “right” to IVF or third-party reproduction.  If you can find someone who will choose do it, then that is one thing – a different thing than having a right to it.  This would also mean that adoption agencies would be expected to give preference to placing children in bride-groom homes.  It would also make it easier, in the event of a split, to keep one parent from moving away from the other, if the other objects, meaning that they will both stay close to the child.

There are some qualifiers here.  It should be possible to remove a criminally violent or neglectful parent from a child, and it should be understood that military service or incarceration will separate a child from a parent.  Safe surrender laws should still be allowed.  And of course, some parents die.

But if this is the only way we can rectify a situation when judges do not stick to their Constitutional limitations, then it is worth consideration.  The more I think about an amendment dealing with the right to life, or marriage licensing, or a child's right to her parents, the more I think that the Ninth and Tenth Amendments and Article III should have been enough.

How many people home during the day – and other viewers of The View – get their “news” from the likes of Whoopi Goldberg and Barbara Walters?  Throw in Oprah and you have the makings for disaster.

In case you haven’t heard, Goldberg asked McCain if she should be worried about his Presidency because he believes in applying the Constitution as the people who wrote it intended.  Reading things – the Constitution and the Bible – with their original meanings vexes Leftists, who want to pour new meanings into the words.  Just imagine following directions for prescription medication the way Leftists read the Constitution or the Bible.  “Well, it says only take one tablet a day, but maybe they really mean take five.”

There have been many great responses to Ms. Goldberg already.  Over at Stop The ACLU, they write:

What Whoopi Goldberg does not grasp (and I don’t particularly blame her, as these things are not well taught any more) is that she wants strict constructionists. The meaning of the 13th, 14th, and 15th Amendments to our Constitution is pretty clear. She (if she had ever had been) is no longer a slave, and not one of us could ever in the present or future be a slave. Period. No person can be deprived of due process of law, and no one can be deprived of his or her right to vote.

That’s what the Constitution says, because it has been amended to say so. A strict constructionist would have to look at the intent of the Framers of the Constitution. In this case it would be the framers of these three amendments. A strict constructionist would look at the context of the 13th, 14th, and 15th Amendments and say, “Of course, the Americans who made this part of the Constitution, especially in the context of this happening just after the Civil War, intend that no person, and certainly not Black people, are ever to be slaves for any reason.”

A strict constructionist would look to the intent of those who drafted those Amendments (which, once again, are now part of the Constitution) and refrain from in any way eroding those protections.

Exactly.  Part of the brilliance of the founders is that the Constitution can be amended.  If the people want to change something, we can amend the Constitution.  Leftists, though, too often try to use the courts to find previously unknown “rights”, instead of amending the constitution.  If slavery had been ended by a court decision, another court decision could reinstate it.  They fight perfectly qualified judicial appointments because they fear undermining cases like Roe v. Wade.  If the “right” for a pregnant woman to terminate her pregnancy (kill her child) herself or by asking someone else to do it was implemented by an amendment, no judge (at least not one following the Constitution), could that that “right” away.

A proponent of a “living, breathing Constitution” may…just might…someday…maybe…decide that “neither slavery nor involuntary servitude shall exist in the United States” means something else given potential changes in public attitudes.

So does Whoopi Goldberg prefer a strict interpretation of the 13th Amendment, outlawing slavery for all time, or would she and her legacy prefer justices and judges who might not look to what the Framers of the 13th Amendment intended and someday decide that the 13th Amendment has lived, breathed, and evolved?

Good question.

Congress should legislate, the President should sign or veto and enforce, and the judiciary should interpret and apply.  The Left wants judges that will “discover” a right to a state-issued marriage license for any couple (at least ones not closely related).  The Left wants judges who will “discover” a right to taxpayer-funded health insurance for all.  I want judges who apply our Constitution.  I don’t want them looking to other countries for their guidance, or making things up as they go along.  If they want to make law, they can run for Congress.

During Warren’s interviews of McCain and Obama, did ANYONE point out the difference between having a federal government program to address the issues raised and private solutions?  Did anyone point out that there are churches - like Saddleback -- that can address social issues as long as the congregants have more money to give the church (lower taxes) and the freedom to act?

If you want to know what the federal government should be doing, read Articles I, II, and III of the Constitution.  Article 2 is what the President should be doing.  Everything else is up to individual states or the people – individuals, families, churches, temples, synagogues, YMCAs, JCCs, businesses, civic organizations, charities – you get the idea.

A President can stand up and hold meetings and give speeches encouraging private action, but not everything has to be an act of Congress or an executive order.  No matter how many laws are passed and no matter how much tax revenue there is, we will still have problems.  We’re going to have problems until Christ returns.  Government is not the only way of handling problems.

I wish someone would have pointed to the audience and said, “You are the employers and the employees, the investors and the customers, the neighbors, friends and family members, the union members, the church members, the jury members, the people who call the cops and file the crime reports, hire the lawyers, and raise the children, and give to charity.  What YOU choose to do can have a tremendous effect.  YOU can stand between evil and the innocent.  YOU can choose to care for others and pressure others to do so.”

If we are going to take separation of church and state seriously, the state should not pretend to be a church.

Related post: http://walrus.blogtownhall.com/2007/09/06/is_jesus_a_republican.thtml

We often hear politicians and activists talking about “rights”, as in a right to health insurance, or “We should not take away a couple’s right to marry” or there should be a “right” to just about anything.  I have said before that true rights do not obligate others without their consent.  God (that’s Nature, to you pagans, philosophical naturalists, etc.) has given us many rights.  The government does not give us rights.  It is supposed to protect our rights from those who would infringe upon them by force or fraud.  The Constitution does not give us our rights.  It lists some of our rights, but it also says that we retain all rights and powers not specifically given over to the government in the Constitution.

There can be a difference between a right and a freedom.  Not everything that we have the freedom to do is a right.  For example, we can run through an open field because it is open.  We can have that freedom.  But if that field is owned by someone else, we do not have a right to run through it.  If that owner decides to fence off the property, our freedom to run across it is gone, but we have not lost any right.  I have the freedom to order a pizza from Domino’s. But if they decide not to sell pizzas anymore, I can’t say that they’ve taken away my right.  What would be a violation of my rights would be if the federal government told me I could not freely exchange something I had for a pizza being offered freely for trade by Domino’s.

So the next time you see someone claiming that their “right” will be taken away, think about whether what they are talking about is really a right or if it has been a freedom they’ve enjoyed.

Most things have their time, place, and purpose.

Often, when libertarians, conservatives, and anyone in favor of “limited government” says that the government should not be doing a particular thing, some people respond with confusion and worry, anger, or any other number of negative emotions.  Breathless, they ask, “But don’t you think it’s a good thing for kids to receive an education?  …for people to have homes?  …for people to have transportation?  …for people to have enough healthy food to eat?  …to take care of our elders?  Don’t you think it is a good thing for people to have health insurance?”

This kind of response belies a thinking that people are incapable of producing and exchanging, of serving others, or finding solutions without government control or assistance.  Some of these people act as if nothing would ever get done, as if people are so incapable and careless that they won’t seek to fulfill their needs and those of their loved ones, or that only the rich would ever get what they need.

There are many services – many programs and projects of various levels of government – that we think are good, at least in concept or goal if not execution or all results.  However, we do not believe that is the government’s role, or in some cases the federal or state governments’ role, to provide these things to people.  There are several reasons for this.

First, if we’re going to govern through a constitution, then we need to be consistent about doing so.  We do have a Constitution, and it limits the federal government to only doing things specifically assigned within the text of the Constitution.  All other things are supposed to be handled by “the people” or the states.  It isn’t the role of the federal government to do these things, and there are reasons the Constitution was written this way, as I note next.

Second, the government can only accomplish things by force.  The money to do things is forcibly taken from some people; if participation in a program is mandatory, this reduces personal liberty and increases centralized government power over our lives.  We have forced association and support instead of voluntary association and exchanges.

Third, a monopolistic entity like the federal government is often inefficient and ineffective.  It is not possible for something being run from Washington, D.C. to really know the needs of all of the people.  Even for things that government should be involved with, the founders of our nation saw the benefit of letting the states come up with their own solutions, so that they can be examined and compared as well as tailored to the population of that state.

Fourth, this can increase dependency of an impersonal central bureaucracy instead of self-reliance, personal responsibility, and personal accomplishment.


The concept of roles has been largely lost in our present-day society.  Roles bring certain duties, obligations, and boundaries.  Traditionally, men and women have had certain roles.  Husbands and wives have had certain roles.  Mothers and fathers have had certain roles.  Friends and family...  religious congregations... charitable and civic organizations have had certain roles.  Teachers and students have had certain roles.  Employers and employees have had certain roles.

Despite what some people would have us believe, men are men – they are not women.  Men can be sons, brothers, husbands, or fathers.  They can’t be daughters, sisters, wives, or mothers – only women can.  Unless you live in a messed-up family, your spouse is not your sibling, and neither is your child.  As a parent, you have a certain role to that child, and while you should love them, your role isn’t to be their friend, at least not while they are growing up.

I bring all of this up because my point is that the government is not your parent.  It is not your sibling.  It is not your church.  It isn’t there to hold your hand.  Its role is to protect you from others, not yourself.  It is there to prevent crime and prosecute criminals, not ensure equality of outcomes or that you have high “self-esteem” or that someone else pretends to like you and everything you do.

There are many things that I think are good, but it isn’t the government’s role to provide them to me.

As a husband, I can tell you it is nice to wake up to some lovin’.  But suppose I wake up to find that the person “lovin’” me is not my wife, but some neighbor I barely know?  I had been enjoying myself, so what is the problem?  The problem is, it is not that person’s role to do that.  Some of you might like this scenario and wouldn’t be bothered, especially if you are or have ever been the Governor of New Jersey or New York, but you get the idea.  That’s one of my wife’s roles, not my neighbors.  

My dog is my pet, not dinner.

We all have our roles, and with many things, it simply isn’t the federal government’s role.

Over and over again, we see politicians, academics, activists, pop artists, and media propagandists proclaiming that we have a “right” to things such as health care, education, retirement pay, mass transit, housing, a job with a “living” wage, food, abortion, and doctor-assisted suicide, all funded and/or arranged for by the government.

This is not how the people who created and adopted our Constitution saw rights.

They saw rights as something we naturally had, something coming from “nature’s God”, and that it was the government’s role to protect, not grant, rights.

Living as we do in a bountiful, wealthy society of hundreds of million of people, it is tempting to look around and think you deserve - and therefore have a right - to something you see around you and that you want.  But again, that is not how the people who created and adopted our Constitution saw rights.

Take the right to free speech.

Your right to free speech does not mean anyone should be forced to listen to you.  They can walk way, and it wouldn’t be a violation of your right to free speech.  Nor does your right to free speech mean someone else has to provide you with their billboard, printer, telephone, satellite, DSL line, cable, or broadcasting system for you to get your message out.  You can pay them to provide those things.

You have a right to free speech because God gave you the means of communication – the physical abilities to communicate.  If you found yourself on an island where there was no government employees, no politicians, no telephone, no radio – you would still be able to talk with or sign to or write to anyone you encountered.  You could believe and worship (freedom of religion) as you saw fit.  You could use a rock or anything else you could get your hands on to defend yourself (right to bear arms).

You could take care of yourself, you could learn, you could store up for the future, you could build a cart or raft, you could build a hut, you could decide to make things or do things for other people in exchange for what they had to offer you, you could eat what you had access to, you could fling yourself against a boulder to kill the life within you, you could jump off of a cliff to kill yourself... HOWEVER, you could not FORCE someone else to perform surgery on you, or teach you something new, or take care of you just because you are old, or haul you around in their cart or raft, or build a hut for you, or to give you something to do and pay you whatever you want, or to go get food for you, or to perform an abortion on you, or to kill you gently – not without violating THEIR rights to choose what they want to do.  You could make VOLUNTARY exchanges and arrangements with them, if they chose to be near you.  Maybe they would even CHOOSE to do some of those things for you for free.

The government is not “someone else”.  It is us.  It is funded by us.  Now, we can collectively use force (via laws, backed up by the military, law enforcement, etc.) to FORCE a doctor to perform surgery on someone, and then pay them what we decide is fair or not pay them at all.  That is possible.  But that doesn’t make it right, and it doesn’t make it a right.

If you look at what the founders of the U.S. put in place, you’ll find a system where our natural rights are recognized and protected, and where everything else is based on a voluntary exchange in which force need not be involved, except to expose and counter theft and other denials of natural rights - crimes which involve force or deception themselves.  Health care provided by someone else is NOT a right.  It is something provided on a voluntary basis by doctors, nurses, hospitals, pharmaceutical companies, etc. who have put a lot of time, effort, and money into getting to the point where they can provide those services and products.

Everyone should be able to offer their services and their property to whomever they choose, for the compensation they choose.  Sometimes that compensation will simply be a warm heart (that’s called charity).  Whoever is offered those goods, services, and property should have the choice to refuse, or make a counter offer on the compensation, or to agree to it as-is.  Likewise, if you are seeking goods, services, and property, you should be able to approach whomever you want and offer whatever you want as compensation, and go from there.  That is liberty. That is freedom.  That protects rights.

If you opened up a shoe store, you wouldn’t want government force to be used to set your prices, determine what kinds of shoes you will sell, or to force you to sell shoes to someone, even if that person will immediately take that shoe and throw it at other people.  People need shoes in the same way they need specialized health care.  Why should the doctor, nurse, hospital administrator, insurance company worker, or pharmaceutical researchers be treated that way?

What most people mean when they call for “universal health care” is that they want someone wealthier than they are to be forced to provide something to them.  There are wealthier people who call for such schemes, too, but almost invariably they do so because they think it will get them some personal advantage such as being able to use their connections in the government to be able to gain a monopoly or to skim money somewhere in the system.  When a company that manufactures medical equipment endorses increased government involvement in medical care, you can be sure it is because they are confident that they can manipulate the system to their advantage.  It is far easier to manipulate something when the power is centralized in Washington D.C. or Sacramento than when the power is with multiple organizations consisting of voluntary membership or spread among millions of families and individuals making their own choices.

Health care is not a right.  It costs money, and while it certainly is a wonderful thing when a medical professional chooses to take care of someone who will not be able to provide material compensation, that professional should not be forced to work for free or less than his or her worth.

If you make voluntary plans and arrangements that provide you with what you need and want in the areas of health care, education, retirement income, transportation, housing, work/wages, and food, then good for you.  Voluntary agreements (which don’t include any conspiracies to steal from, assault, or murder someone because they victim is not a volunteer) ARE something to which we have a right.  Exercise those rights, instead of counting on “someone else” to take care you simply because you are alive.

Does anyone with any knowledge of history really believe that the men who wrote and voted to adopt the Eight Amendment would agree that lethal injection is "cruel and unusual punishment"?

No.

Just think of how people were punished for their crimes in those days.

So this means that there are are judges who think the words of the Constitution don't really mean anything... except what they think they should mean based on their feelings and opinions.  The meaning of the Constitution should therefor change, year by year, based on the tastes of the day.  That is dangerous thinking that leaves us vulnerable to oppression.