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Full-text available at SSRN. See link in this record. ; This article critiques the Court's interpretation of the Eighth Amendment's Cruel and Unusual Punishment Clause and defends an alternative understanding. The Court's jurisprudence is plagued by deep inconsistencies concerning the text, the Court's own role, and a constitutional requirement of proportionate punishment. The Justices have said that a punishment is not "cruel" if it significantly advances any legitimate penological objective. It has also recognized that the separation of powers and federalism require that decisionmakers have leeway to make reasonable judgments on this score. Yet all of the punishments the Court has invalidated reasonably can be said to further utilitarian objectives such as general deterrence and incapacitation. The Court also has declared that legislative enactments largely define the Clause's meaning. Such deference to legislation conflicts both with the Court's countermajoritarian reading of the Clause in its prison conditions cases and with the independent interpretative role it assumes in other constitutional contexts. Another puzzle concerns the Court's choice to pursue proportionality very aggressively respecting death sentences and, in effect, not at all respecting sentences of imprisonment. In search of ways to resolve these conundrums, the article explores several alternatives: 1) A textualist approach; 2) Justice Scalia's view that the Clause forbids only punishments unacceptable for all offenses; and 3) a majoritarian approach that would consistently define cruel and unusual punishment in terms of legislative judgments and penal custom. An inflexible textual requirement that an unconstitutional punishment be both cruel and unusual would make little sense as a matter of either interpretation or principle. Among other things, the Founders wrote State Constitutions that use the term "cruel" as an equivalent of the phrases "cruel and unusual" and "cruel or unusual." The historical evidence also undercuts Justice ...