Capital Punishment, Same-Sex Marriage, and Abortion

The title of my new book, Human Rights in the Constitutional Law of the United States, references the subject matter that has been my principal scholarly obsession since the beginning of my academic career.  In the book--the introduction to which is available here for download--I elaborate three internationally recognized human rights, each of which, as I explain, is entrenched in the constitutional law of the United States: the right not to be subjected to “cruel and unusual” punishment, the right to moral equality, and the right to religious and moral freedom.  I then pursue three inquiries that are of special concern to MOJ readers:

• Does punishing a criminal by killing him violate the right not to be subjected to “cruel and unusual” punishment?

• Does excluding same-sex couples from civil marriage violate the right to moral equality or the right to religious and moral freedom?

• Does criminalizing abortion violate the right to moral equality or the right to religious and moral freedom?

I also pursue a fourth inquiry: In exercising judicial review of a certain sort--judicial review to determine whether a law (or other public policy) claimed to violate a constitutionally entrenched human right does in fact violate the right--should the Supreme Court of the United States inquire whether in its own judgment the law violates the right? Or, instead, should the Court proceed deferentially, inquiring only whether the lawmakers’ judgment that the law does not violate the right is a reasonable one?  In short, how large/small a role should the Court play in protecting (enforcing) constitutionally entrenched human rights?

I have long been engaged by, and have before written about, questions such as those I address in this book:  questions about the implications of constitutionally entrenched human rights--and the question about the proper role of the Supreme Court in adjudicating such questions.  (The title of my first book, published in 1982:  The Constitution, the Courts, and Human Rights.)  Indeed, I have before written about each of the three constitutional controversies at the heart of this book: capital punishment, same-sex marriage, and abortion.  Because I was not satisfied with my earlier efforts, I decided to revisit the controversies.