Capital Punishment *Is* Unconstitutional; Or, Why Rick Garnett Is Wrong (Again)!

I've justed posted a paper to SSRN explaining why, in my judgment, capital punishment violates the cruel and unusual punishments clause of the Constitution--and then explaining why the Supreme Court probably should not so rule.

Here's the abstract:

Whether a law (or other policy) is unconstitutional is one question; whether the Supreme Court (in an appropriate case) should rule that the law is unconstitutional is a different question. Contemporary constitutional theorists are virtually unanimous in ignoring the analytic space between the two questions. That a law is unconstitutional does not entail that the Supreme Court should rule that the law is unconstitutional. In this paper - a revised version of which will be my contribution to a symposium issue of the Georgia Law Review honoring Professor Milner Ball - I explain why we should conclude that capital punishment violates the cruel and unusual punishments clause. (I am inclined to think that we are all originalists now; in any event, my explanation presupposes an originalist conception of constitutional interpretation - although, to be sure, *not* Antonin Scalia's misconceived originalist conception of constitutional interpretation.) I also explain, however, why the Supreme Court (probably) should not rule that capital punishment is unconstitutional.

To download/read the paper, click here.