Perhaps unexpectedly, if you read Tweaking the Machinery of Death, Fault Lines, Mimesis Law (July 6,2015), by Christian Farias, you will find out why it may be extremely difficult to do away with the death penalty as a matter of judicial fiat given the text of the Constitution. It is most certainly an article that deserves your attention if you are concerned with the death penalty. It is well written, objective and does a great job of setting up the arguments that the pro death penalty Justices will be asserting and the challenges the con death penalty Justices will be forced to confront.


7 responses

  1. That was my immediate reaction to the justice’s comment when reported. How can that which is expressly provided for in the Constitution be unconstitutional? What seems more likely is that the death penalty itself will die by the legislatures’ hand as more and more convictions are overturned by DNA evidence.

  2. RGK,
    Normally I don’t agree with Scalia. He’s bombastic, brilliant and an originalist. I don’t generally like that view because it is myopic and often wrong. But I agree with him here. SCOTUS rules on the constitutionality of something, not whether or not we as a society like something. The Constitution clearly contemplates it. We cannot interpret the constitution to oppose its own meaning.

    If the death penalty is to be repealed, it should be by the legislatures of this country. I have no problem with that. But it’s not the a court’s job. To do otherwise makes the court a superlegislature and impermissably treads on the authority of both the states and the legislative branch of the United States. Down that road lies dictatorship.


  3. The Constitution does not provide for the death penalty, as a simple reading of its language makes clear. Your paraphrase is there shall be a death penalty and the appropriate paraphrase is if there is a death penalty then. The first would block Breyer’s developmental reading of the 8th Amendment, but the proper reading is irrelevant to the method. Scalia’s argument as stated in the article is simply a nothing can be unconstitutional if the Founders would have tolerated it and the language of the 5th is a red herring As is so often the case is the is ambiguous between Scalia’s method and Breyer’s.

  4. SLS if limitations are imposed on legislation by the Constitution then enforcing them is not super legislating but judging. What needs to be answer is Breyer’s argument on reading the 8th, and note Scalia’s underlying argument for limiting the commerce power in cases like ACA I presuposes his argument that direct election of the Senate makes the Senate no longer a functioning protected of the rights of the States and expands the judicial role, hardly a transparent reading. of the 17th Amendment. Marbury leaves us with the problem of what is judging and what is legislativing but to pretend the Constitution settles the issue is not apparent.

  5. At the time the Constitution was written, flogging was a permitted punishment. Would we allow it today? If we did, would we permit the cat o’nine tails to be used? Would we permit fifty or a hundred strokes of the cat?

    At the time of the Constitution, children who were barely adolescent were hanged for what we now view as minor crimes. Do we think that the Eighth Amendment still legitimizes such punishment?

    I agree that an intellectually responsible argument can be made for capital punishment as within the concept of the Eighth Amendment and not to be changed except by further amending the Constitution, but that conclusion is hardly compelled.

  6. The contemplation in the Constitution of the death penalty only shows that it was not viewed as cruel and unusual at the founding. The question I think is whether a punishment that is not cruel and unusual can become cruel and unusual over time. It seems obvious to me that the answer is “yes” with respect to “unusual.” So, are we locked into 1791 ideas of what is “cruel,” or can what is “cruel” change over time?

  7. L,

    You have done a great job in simplifying an argument that rages between the Justices. Thanks for your engagement.

    All the best.


%d bloggers like this: