Memo to Rick re Capital Punishment, the Constitution, and the Courts

In response to Rick's post this afternoon, let me say this:

We must distinguish between two questions:  (1) Does capital punishment violate the Eighth Amendment's ban on cruel and unusual punishments?  (2)  Should we want to Supreme Court to rule that capital punishment violates the Eighth Amendment's ban on cruel and unusual punishments?

Rick and I agree that *if* the answer to the first question is no, then the answer to the second question should be no too.

However, if the answer to the first question is yes, it does not follow that the answer to the second question should be yes too.  Why not?  Well, I answer that question (among others) in my new book:  Constitutional Rights, Moral Controversy, and the Supreme Court:  A (Partial) Theory of Judicial Review (forthcoming, Cambridge University Press).

As it happens, I think that the answer to the first question is yes--and that the answer to the second question is ... no.