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It is an “and”, the function and meaning of which in the English language, even as used in common law, is not a matter of legal theory unless you want to use legaltheory to nullify the proper use of the language.

Here’s another shocking thought for you, backed by no less than John Marshall: the exercise of the original right to make Law is what sets the meaning of the Law to be what those that Ratified it can be said to have agreed to. The act of Ratification sets that meaning in stone until specific successful Amendment occurs as a further exercise of the original right.

Elections are not exercises of the original right. Nor are statues, executive orders or opinions of the Court. This is because the United States, including all of its departments of government, does not have a Sovereign who can make Law by the ordinary means at his disposal. There is no federal common law. So when the original right is exercised it establishes the meaning.

And despite what you may have heard, it is relatively easy to establish what those that ratified can be said to have agreed to ... for example: when Hamilton wrote of a more general power to spend he only did so AFTER Ratification, and since he expressly contradicted what he and others had said before Ratification how can he latter day writings be considered to have been the agreed to meaning of the language? It cannot be, and Hamilton wasn’t the Sovereign to make Law. The purpose of the justifying clause in A1:S8:C1 misused and abused by the current government in abeyance was not to grant power to spend, but to justify the Power to directly levy taxes rather than beg the State’s for funding as under the AoC. There is no power to spend granted by that clause.

(I could go on, to talk about how the enumeration of both Powers and circumstantial, limited exceptions to that doctrine of enumeration demonstrates that those are the only Powers and the only circumstantial exceptions to be had, or else their enumeration represents what Marshall called a superfluity, or having form without function ... but I’ll cut to the chase)

When the Constitution was ratified the phrase “cruel and unusual” had not yet been laid hold of by those who wanted to delegitimize cruel punishments as if that alone were what mattered for legitimacy.

The death penalty in inherently constitutional for a number of sorts of crimes as it was applied when the Constitution was ratified. Punishments like torture, being unlawful among the several States that Ratified the Constitution, would be “cruel and unusual” for that cause, being actually “and unusual” for the Law in question. By contrast community service, a punishment not really much known among the several States when the Constitution was Ratified, may be in that sense very usual an response for any crime but is hardly cruel, so it is not “cruel and unusual”.

Rather the so called scholars, the poorly named “progressive” ones at least, and at least since the likes of C.C. Langdell took over at Harvard, have actually worked to progressively kick the Constitution to the curb with their misrepresentations about living constitutions and have been doing so since even before FDR slimed his way across the national stage.