White took 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.