issue with three premises of Scalia's argument. First, for White, the fact that the Framers were not as plain-spoken as Scalia would have preferred was no obstacle to concluding that the Eighth Amendment did indeed contain a proportionality requirement. Second, although the newly formed federal government did not, in 1791, have any "track record with respect to criminal law," they had lived under the regime of the several states for some time, and so there would be some benchmarks by which to evaluate proportionality of punishments. Third, even if the original understanding of the Eighth Amendment did not include a proportionality requirement, 20th-century decisions of the Court had imposed one. White takes Scalia to task for claiming at once that the Eighth Amendment must have no proportionality guarantee whatsoever and then that that guarantee can apply only in capital cases. White's argument proceeds from the premise that "the scope of the prohibition against cruel and unusual punishments has long understood the limitations of a purely historical analysis." In other words, when it comes to the Eighth Amendment, the Court must employ a flexible and dynamic interpretation. The Court therefore has recognized that a punishment may violate the Eighth Amendment if it is contrary to the evolving standards of decency that mark the progress of a maturing society. In evaluating a punishment under this test, we have looked not to our own conceptions of decency, but to those of modern American society as a whole in determining what standards have evolved, and thus have focused not on the subjective views of individual Justices, but on objective factors to the maximum possible extent." It is this type of objective factor which forms the basis for the tripartite proportionality analysis set forth in Solem. Finally, White argued that the Solem test works well in practice. Simply because courts will be reviewing sentences for proportionality does not mean that courts will strike them down with great frequency. Solem requires a certain amount of deference to the legislature, and courts have proven able to apply that amount of deference. And although Scalia concedes that an egregious prison term—such as life in prison for overtime parking—would be unconstitutional, White faults him for striking such extreme punishments down in a principled manner. White also argues that adopting Scalia's view of the proportionality requirement would strike at the foundation of the Court's capital punishment jurisprudence, much of which