In my most recent Verdict column--published last Wednesday and then re-published in Newsweek--I consider a standard objection to a point made by Justice Breyer in his dissent last SCOTUS Term in Glossip v. Gross and reiterated last week in his dissent from denial of certiorari in Boyer v. Davis. In both places, Justice Breyer argued that one reason to conclude that the death penalty is unconstitutional is what has sometimes been called the "death row phenomenon": the condemned lives on death row in social isolation and miserable conditions (even relative to other prisoners) for decades. In other words, long delay between sentencing (not to mention the offense) and execution renders the death penalty unconstitutional.
One response by many death penalty supporters, including the late Justice Scalia in his concurrence in Glossip, is a kind of estoppel: Because the delays are mostly the result of complex doctrines invented by liberal opponents of the death penalty, those same liberals should not be heard to complain about the delay itself. While acknowledging a superficial plausibility to this objection, my column argues that it is ultimately mistaken. To see why I think so, please read the column.
Here I want to consider a different objection to the broader set of arguments for concluding that the death penalty is unconstitutional. It's another longstanding argument, this one rooted in the constitutional text, in particular the Fifth Amendment, which reads in full (with bolded text added by me) as follows:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.In just one amendment, we have three provisions that restrict capital punishment, but do not ban it. (The Fourteenth Amendment's due process clause adds a fourth). According to what Professor Joseph Blocher calls "The Argument" in an insightful article that is forthcoming in the Northwestern Law Review, the Eighth Amendment cannot plausibly be construed to forbid the death penalty, because the Fifth Amendment expressly accepts it, subject to various limits. According to The Argument, there would have been no point in articulating these limits if the death penalty were absolutely forbidden. Prof. Blocher explains why The Argument fails. He builds on a point made by the late (great) John Hart Ely in a 2001 article in the Virginia Law Review.
Blocher and Ely both explain that the references in the Fifth Amendment to capital punishment show (unsurprisingly) that the framers of the Fifth and Eighth (and for that matter the Fourteenth) Amendments intended and expected that there would be circumstances in which the death penalty would be constitutionally valid. But that's hardly news, right? The claim of people (like Justice Scalia) who make The Argument seems to be something more like the text of the Fifth Amendment forever rules out the possibility of construing the simultaneously adopted Eighth Amendment as categorically forbidding the death penalty.
Yet that's pretty plainly wrong. Put differently, only (what is sometimes called) concrete-expected-applications originalism can make The Argument work. Semantic originalism (or just plain common sense) routinely leads to the sorts of conclusions that The Argument rules out.
Suppose that Jill knows that her roommate Jack's absolute favorite food is a baked potato. Whenever it's Jack's turn to cook, he makes baked potatoes. In addition, suppose that lately Jill has been worried about pesticides, so she has been trying to eat only organic food. Jack and Jill are having company for dinner. Jill sends the following text to Jack, who is grocery shopping:
Don't buy any potatoes unless they're organic. And remember that my Aunt Bea will be joining us. She has diabetes, so don't buy anything with a high glycemic index.Does Jill intend and expect Jack to buy potatoes? Yes. She undoubtedly thinks that if there are organic potatoes available at the store, Jack will buy some of them. But that's because Jill doesn't realize that potatoes have a very high glycemic index. Buying potatoes is not actually required by Jill's prohibition on non-organic potatoes, whereas it would violate the prohibition on foods with a high glycemic index.
It should be obvious that the prohibition on non-organic potatoes--with its tacit acceptance of organic potatoes--is meant to be analogous to the Fifth Amendment, while the prohibition on high-glycemic-index foods is meant to be analogous to the Eighth Amendment. Is the analogy airtight? I think so, but I can imagine an argument against it that says there's an important difference between being mistaken about the glycemic index of potatoes and being mistaken about whether the death penalty is a cruel and unusual punishment: there is a fact of the matter about potatoes, whereas cruel and unusual punishment is a matter of largely subjective normative judgment.
What should we make of that objection? Perhaps needless to say, I am not impressed by it. To my mind, at least where constitutional texts (and legal texts more generally) use broad evaluative language--such as "unreasonable searches and seizures" in the Fourth Amendment or "cruel and unusual punishments" in the Eighth Amendment--faithful interpretation calls for normative judgments about what is "unreasonable" or "cruel."
Now critics of living constitutionalism (or even of semantic originalism) profess not to like that conclusion because, they say, it confers too much discretion on judges. As I've said here and (in much greater detail) elsewhere, I think that objection is wrong, but let's put that aside. Here I want to emphasize something else entirely. Notice that at this point, the objection to my comparison of potatoes and the death penalty no longer relies on the supposed implication of the text.
In Glossip, Justice Scalia offered The Argument as a freestanding reason for upholding the death penalty. "It is impossible to hold unconstitutional that which the Constitution explicitly contemplates," he wrote early in his Glossip concurrence. He appeared to think this was a separate point from the objection that judicial invalidation of the death penalty would be undemocratic, which was his concluding point. But it wasn't and isn't.
The Argument adds nothing to the standard brief for construing even the open-ended language of the Constitution in accordance with the narrow subjective intentions and expectations of the Framers. If you do not subscribe to concrete-expected-applications originalism, you have no reason to read the Fifth Amendment's limits on the death penalty as incompatible with reading the Eighth Amendment to render the death penalty unconstitutional as cruel and unusual punishment.