In 2008, the Supreme Court held that executing a man for raping a child violated the Eighth Amendment. Sixteen years later, Florida and Tennessee passed laws saying it doesn’t. One of those statutes is heading to the current Supreme Court.

What happens next depends on whether five justices are willing to scrap a defective constitutional test and actually do the historical work — without flinching at the parts of the founding-era record that cut against the instinctive conservative answer.