Wednesday, October 16, 2013
Where Magisterial Morality and Constitutional Morality Converge: The Case of Capital Punishment
I just posted to SSRN a paper titled Why Capital Punishment Violates the Constitutional Law of the United States. The paper is available here. If my argument misfires, where does it misfire?
This is the abstract:
I explain in this paper why we are warranted in concluding
that capital punishment—punishing a criminal by killing him—is both “cruel” and
“unusual” within the meaning of the Eighth Amendment’s ban on “cruel and
unusual punishments” and therefore violates the constitutional law of the
United States. In setting the stage for
that explanation, I discuss the internationally recognized human right not to
be subjected to any punishment (or other treatment) that is “cruel, inhuman or
degrading”. When I turn to the question
of the original understanding of the Cruel and Unusual Punishments Clause of
the Eighth Amendment, I discuss the important work of John Stinneford,
explaining why I concur in Stinneford’s conclusion about the original understanding
of “cruel” but dissent from his conclusion about the original understanding of
“unusual”.
https://mirrorofjustice.blogs.com/mirrorofjustice/2013/10/where-magisterial-morality-and-constitutional-morality-converge.html
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Point one: the 14th Amendment, enacted after the 8th Amendment, clearly states that the death penalty is permissible so long as due process is followed. So, the 14th Amendment should be read to modify the 8th, not the 8th read to modify the 14th. Point two: the minute you mentioned international law you lost me as a matter of principle. Third, society has not "evolved" in an anti-death penalty direction. There is some shift in the polls but a very clear majority of Americans support the death penalty.