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.
22 comments:
I don't agree with The Argument either, but I question how effective the potato analogy really is. Prof. Dorf assumes a proponent of The Argument will have to say that whether a punishment is "cruel and unusual is a matter of largely subjective normative judgment." On the contrary, I imagine a proponent would say that whether a punishment is "unusual" is in considerable part a matter of objective data compilation. The Fifth Amendment's language confirms that the Framers -- and their audience -- not only understood capital punishment to be morally acceptable but also thought it to be statistically not unusual. The potato analogy would seem to fail, then, because of course we'd expect that Jill, if informed that potatoes have a high glycemic index, would agree that Jack shouldn't buy them regardless of whether they're organic. To refute The Argument comprehensively, I think you have to address the implication in the Fifth Amendment's text that capital punishment is (or was) not "unusual" as a matter of fact.
Mike,
Your analogy fails because you've flipped the relative specificity of the provisions. In your hypo, the prohibition in the 8A-analogue (nothing with high glycemic index) is *specific and unambiguous*, and it thus trumps the *implied* permission in the 5A-analogue (organic potatoes are ok). Notably, this is true under *any* theory of interpretation.
The proper analogy would be if Jill had said "Don't buy potatoes unless they're organic, and also don't buy anything that is unhealthy", and then the store clerk told Jack that he believed organic potatoes were unhealthy under some debatable theory of what it means to be "unhealthy." Under a proper interpretation, the vague term "healthy" should be interpreted in a manner that doesn't exclude organic potatoes: legal texts should be read as a whole and rendered consistent where possible -- here, by not reading the vague prohibition on "unhealthy" items to override the clear but implicit authorization to buy organic potatoes -- and that's especially true if the ordinary and contemporary meaning of "healthy" wouldn't exclude organic potatoes. In other words, we should assume, where possible, that Jill wasn't an idiot and wash't issuing contradictory commands, and should interpret "healthy" accordingly.
Finally, your attack on originalism is particularly misguided in this context. In both these hypos and the capital-punishment context, the alleged conflict between the specific implicit permission and the vague prohibition existed *at the time the document was created.* In particular, virtually all of the current critiques of the death penalty -- and all of the most significant ones concerning reliability and fairness -- were equally if not more applicable in 1791 and 1868. So your position has to be that a majority of the Supreme Court in 1791 or 1868 could have and should have announced to the public that they were all a bunch of idiots who had completely misunderstood the import of the provisions that they had ratified, and that the "cruel and unusual" punishments clause had actually wiped out the "capital" punishments expressly contemplated by the Constitution. Of course, no judge at the time would have had the audacity to so hold, because the public would have promptly pointed out that, instead, the judge was seriously misconstruing the "cruel and unusual" clause by adopting an interpretation that improperly drew it into conflict with capital punishment.
David: Thanks for the comment. You have offered a different reason to distinguish between high glycemic index and cruel and unusual punishment, but you haven't offered (and I understand that you didn't intend to offer) a reason to think that The Argument is correct or that it even survives a collision with the potato/glycemic index example. I take it that the disanalogy you're suggesting is that the death penalty is not actually unusual, whereas potatoes actually do have a high glycemic index. That has nothing to do with The Argument, however, which claims, simply as a matter of negative implication from the text of the Fifth Amendment, that the Eighth Amendment can't proscribe capital punishment, regardless of value judgments or facts in the world. Indeed, this supposed disanalogy appears to concede that if capital punishment were to become unusual, then it could be invalidated under the Eighth Amendment, which is contrary to the strong textual claim of The Argument. (I take no position here on whether it is sufficiently unusual to be invalid already.)
The Fifth Amendment set forth a basic rule of due process before life is removed.
It is possible, especially since procedural due process as much as substantive develops over time as things change (e.g., the state of the penal system that was quite different in 1791), that in theory the death penalty is okay, but it isn't given the actual procedures in place today. Note a few people even in 1791 thought the death penalty violated constitutional norms, or at least, which is also relevant to modern doctrine, it applied to certain crimes.
Anyway, as suggested by the discussion, there are other constitutional provisions too, including the substantive limits of the 8A, the additional concern of equal protection (especially applied to race) of the 14A and so forth. See also, the final footnote in Justice Stevens concurring opinion in Baze v. Rees & the surrounding text.
"it applied" should be "if applied"
The whole thing sort of reminds me of the argument that obviously the pre-14A Constitution did not protect equality since you know slavery. But, first, there was still a general concern for equality in various ways -- the concern developed over time & even as to race was expected to. An opening was there. Second, the 13A changed the dynamic significantly -- once you take slavery off the table, equality is much more easily defended as a constitutional principle.
Anyway, originalism is not my thing, but even on that front the argument for the DP tries to do too much. The mere text just says due process is required before removal of life. Just what that entails is a complicated question, more complicated than the "gotcha."
Hashim: You misread me to be making an argument that the death penalty IS unconstitutional. But neither here nor in the column do I attempt to do that. I am simply swatting away superficially plausible arguments. The claim of The Argument does not depend on the specificity or generality of the Eighth Amendment.
Now I happen to disagree with you even with respect to general language. Consider the Fourteenth Amendment. Section 2 "explicitly contemplates" sex discrimination. So is it therefore wrong to construe Section 1's Equal Protection Clause--which is every bit as vague as "healthy"--as presumptively forbidding most forms of official sex discrimination? The Argument would say it is, and, to his credit, Justice Scalia suggested a few times in speeches (and perhaps in his dissent in US v. Virginia) that he had the courage of his convictions, so that he would allow states to forbid women from serving on juries, becoming lawyers, etc. But most readers of the Constitution are unwilling to credit The Argument in this way.
Mike -- 14A S2 explicitly contemplates sex discrimination *in voting.* So yes, it would be wrong to construe 14A S1 to prohibit sex discrimination *in voting.* Which is precisely why the 19A was needed -- or do you think it was open to five Justices of the SCt to invent the 19A themselves, notwithstanding 14A S2 (and 15A)? But 14A S2 is silent on other types of sex discrimination, and thus sheds no light about the meaning of 14A S1 in those other respects. Once again, you're failing to pay close enough attention to the relevant level of specificity at issue.
The claim of The Argument very much does depend on the lack of specificity of the 8A. If the 8A set forth a clear requirement, and capital punishment clearly failed that requirement, then proponents of the Argument would not continue to argue that capital punishment was still permitted by implication of the 5A. Rather, the reason the 5A implication works is precisely because the 8A is vague -- given the 8A's vagueness, the Argument is that proper interpretive methodology says that it should be interpreted not to conflict with the 5A, because texts should be read as a whole and in a manner that is consistent, where possible.
Simply put, I don't see how you've swatted away the Argument yet. By what interpretive methodology is it proper to read a vague prohibition in a broad manner that brings it into conflict with a specific implied authorization?
The text of Section Two:
"Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state."
The provision was never put into practice & appears not to be self-executing. OTOH, Section One does not require congressional action, nor does other voting amendments. Many originally thought Section One did not apply to political rights at all, which is not the understanding today. So, e.g., racial gerrymanders is deemed justiciable. This was deemed patently wrong by at least two justices as applied to non-racial matters (correction) but now it is seen as unremarkable.
Section Two concerns apportionment. It specifically allows Congress to penalize states if various types of voting discrimination is in place. That's it. For instance, let's say a state allows every male aged 20 the right to vote except for blondes. The text says the penalty doesn't apply -- only those over 21. But, it isn't clear to me that the law could be deemed irrational under Section One.
Requiring, especially without any enabling legislation needed, women to be allowed to vote was quite a change so an amendment was deemed necessary. Even as applied to race it was deemed necessary -- see the 15A. But, as applied to voting generally, including things not covered by Section Two, a bit different. In theory, yes, it does seem possible to use existing text -- an attempt to do so was tried and failed in the 1870s, but things might have changed in the 20th Century. As it did as applied to social rights like marriage deemed absurd at the time.
Hash: Bah! Do you really think I haven't noticed that Section 2 is about voting? See, e.g., Dorf, A Nonoriginalist Perspective on the Lessons of History, 19 Harv JLPP 351, 355 (1996): "It is conceivable that the framers and ratifiers of the Fourteenth Amendment believed that voting was sufficiently different from other rights that one cannot infer anything about Section 1 from the text of Section 2. But even if one accepts that in the Nineteenth Century voting was viewed differently from most other rights, Section 2 does tell us that in that context at least, racial classifications were seen as invidious and gender classifications were not. It is reasonable to conclude that race was generally seen as different from gender in other contexts as well." Or see Dorf, Equal Protection Incorporation, 88 Va L Rev, 961 974-75 (2002).
But in any event, the answer to your question is of course, yes. Even if there were no Nineteenth Amendment, women would be entitled to vote under any minimally civilized construction of the Equal Protection Clause. That would not contradict Section 2, although it would contradict the concrete expectations of the Fourteenth Amendment's framers. You are simply providing additional illustrations of the failure of The Argument to do any work that is not parasitic on concrete-expectations originalism.
Mike -- reading 14A S1 to encompass the 19A would inded contradict 14A S2, because it would render the word "male" in 14A S2 a legal nullity. That qualifier would be meaningless surplusage in 14A S2, because 14A S1 would supposedly render it illegal to discriminate on the basis of sex w/r/t voting. But that contradicts a basic interpretive principle that has nothing to do with "concrete-expectations originalism" -- namely, that legal texts should be read as a whole, such that all terms should be read in a manner that renders them consistent and effectual, where possible. Again, by what interpretive principle do you justify reading a vague prohibition in one part of a legal text to render a clear and specific provision in another part of the same text to be meaningless surplusage?
PS. I of course assumed that you personally knew that S2 was about voting -- but your comment above omitted that critical limitation and then based an argument on the omission, by extrapolating beyond voting. So I thought it was fair game to point out that you were ignoring the relevant level of specificity of S2.
To discuss your verdict column, I don't think you are quite capturing Scalia's argument about bootstrapping. Your response says that necessary procedural protections that cause necessary delays should not raise an estoppel. But, of course, to Scalia, the protections are not "necessary" at all but are simple obstruction invented up out of thin air. You make a nod to this point by saying that, "If one thinks that particular procedural requirements for the death penalty are unnecessary or not properly connected to the Constitution, then one can make that argument." But I think you err in seeming to believe either that Scalia is not making that argument or that the argument somehow simply stops with a conclusion that a particular procedural requirement is not constitutionally mandated and has no further implications. Scalia's argument is that many procedural requirements were invented by liberals out of thin air, and that the implication is that liberals cannot rely on unnecessary delays caused by those invented requirements (to be clear, I don't fully agree with him on this, but a refutation has to take the point of view as given). To play on your refutation: If one thinks that particular delays stemming from procedural requirements for the death penalty are necessarily and properly connected to the Constitution, then one can make that argument. But without that premise one does not refute Scalia's point. And one obviously cannot take a liberal Supreme Court holding that a procedural requirement is constitutionally mandated as establishing the premise.
Okay, thanks to all for very interesting thoughts. Two last replies and then, alas, I need to get to grading Fed Courts exams.
1) Hash: On the last point, I agree that reading the hypothetical 19th-Amendment-less Constitution to bar laws denying women (but not similarly situated men) the vote would render the word "male" in Sec. 2 surplusage, but only in the same way that The Argument says that "without due process" is surplusage for the deprivation of life if the Eighth Amendment bars all capital punishment.
2) TJ: I don't disagree with anything you say here. It's just a matter of emphasis. In the column I respond to the bootstrapping argument, just as in the post I respond to The Argument--without in either place saying that the opponents of the death penalty are right. So sure, if the time-consuming procedures are not required by the best reading of the Constitution, and those procedures are a but-for cause of the delay, then the delay argument fails. But again, then we (or rather the Justices) should be having their debate about the procedures then.
All of this reminds me far too much of arguments about application of military force when isolated from the mission statement and rules of engagement. Perhaps we should refer to this:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
which does not, by itself, seem to say much about the death penalty... except that "establish Justice" and "insure domestic Tranquility" imply to me that any discussions about the death penalty should be rare because the penalty itself is rare.*
So I would put it this way: The death penalty is probably not inherently unconstitutional (whether it is wise or just is a different issue committed to the fallibility of individual humans)... unless it is so widespread as to become routine. That we can't even get the various sovereigns to agree on the qualifications of persons fit to defend capital matters is a big hint that we have a procedural due process problem that, because it is so pervasive, has become a substantive due process problem.
Darn, I've just lost the argument by using the evil words. So be it.
* I'll leave aside Deist and eighteenth-century Protestant arguments and docrine concerning redemption for the moment. And the less said about then-contemporary Jewish and Catholic thought...
Professor Dorf, it seems to me that proponents of The Argument, on the one hand, and you, on the other, are operating from different axioms. The Argument presupposes an originalist stance on constitutional interpretation. It goes something like this:
Premise 1: We need to ascertain the original public meaning of the Cruel and Unusual Punishments Clause.
Premise 2: The Fifth Amendment expressly contemplates that capital punishment may be imposed.
Premise 3: The Fifth Amendment was enacted at the same time as the Eighth Amendment.
Premise 4: Because they were enacted at the same time, the original meaning of these two amendments can't be inconsistent.
Conclusion: The Cruel and Unusual Punishments Clause therefore must not outlaw capital punishment.
So The Argument proceeds from the axiom in Premise 1. Obviously, you disagree with that premise, and post-Trop v. Dulles, Premise 1 is not the law. But to an originalist who starts with that axiom, The Argument is sound.
I largely agree with the points you make above, Mike. I just want to point out that the analysis can be deepened by close attention to the philosophy of language, which distinguishes between semantics and pragmatics. When I say "No lead toy shall be sold without a price sticker", the semantic content of my utterance is simply that the presence of a price sticker is a necessary condition on any sale of a lead toy: no price sticker, no sale of a lead toy. The *semantic* content of my utterance leaves it completely open whether it is permissible to sell lead toys. Of course, there is plenty of evidence that we often *use* sentences with conventionally determined semantic content to communicate (in Grice's technical terminology, pragmatically implicate) content that is not actually semantically encoded in our utterances. Presuppositions, on some theories, are pragmatically conveyed, rather than semantically encoded. Pragmatics is a matter of what it would be reasonable to assume the speaker intended to communicate by using a sentence with a particular semantic content, given that the speaker is understood to be cooperating with her interlocutors as part of a purposeful exchange of speech. In this example, it is reasonable to suppose that the speaker would not have made the statement unless the speaker believed, and intended her audience to accept, that lead toys may be sold as long as certain conditions are met (including the presence of a price sticker). But this is pragmatically imparted, not semantically encoded, information. The same point applies to the Due Process Clause, for example. Semantically, the clause says no more than that due process of law is a necessary condition on the imposition of capital punishment. But the idea that the clause "contemplates" the permissibility of capital punishment is a matter of pragmatics.
Suppose now that I say that toys that are toxic to children shall not be sold. The word "toxic" is vague, just as the word "cruel" is vague. But if our best judgment is that lead toys are toxic to children, then, if we follow the semantic content of what I uttered, we shouldn't sell lead toys, not even the ones with price stickers on them. And if, as in this case, there is a clash between what is semantically encoded in one requirement and what is pragmatically imparted by another, the semantically encoded content wins. This is what semantic originalism recommends, and it is, ironically, this very theory that Justice Scalia purports to accept in *A Matter of Interpretation*.
A great post on an issue I've discussed with friends and colleagues often. Thank you, Professor!
A quick comment to add another arrow in the quiver on this front, which I first heard when I listened to the oral argument in Gregg v. Georgia from 1976. When then-Solicitor General Bork offered up The Argument, a Justice (unfortunately I can't tell who from the recording) asked a simple question: The very same text on which The Argument is premised contemplates putting "limb[s]" in jeopardy. Does this mean it can never be categorically unconstitutional to chop off convicts' hands and feet?
Bork's response was something along the lines of, well, state legislatures had essentially universally banned that practice, so it's now "unusual" and therefore unconstitutional (he demurred on whether it would be "cruel," if I remember correctly). Notice, though, that at that point in the argument, Bork has essentially conceded that he doesn't support "concrete-expected-applications originalism," and now we're just disagreeing about which institutions can render a punishment unusual.
To be consistent, The Argument should also be seen as protecting the right of a state to hack off limbs as a form of punishment. "...to be twice put in jeopardy of life OR LIMB." At what point do we get to jettison a slavish devotion to 18th Century views of morality and cruelty?
Sam -- while a semantically encoded requirement would trump a pragmatically imparted authorization *if* there was a conflict between the two, that's not the relevant question. Rather, the question is whether, when the semantic requirement is *vague* -- as you recognize is the case here -- should a court adopt a semantic interpretation that is consistent with the pragmatically imparted authorization rather than conflicts with it. And the answer is yes, because it's a basic principle when interpreting legal texts that they should be read as a whole and to avoid ineffectual surplusage -- which is the key point that Mike has yet to respond to.
Perhaps this is Hashim's point restated, but I think the normative/factual objection you suppose and reject to your hypothetical is stronger than you think. The reason being that I can concede that the Eighth Amendment requires normative judgments, but say that the Fifth Amendment's contemplation of the death penalty implies and locks in one normative judgment - that the death penalty isn't cruel and unusual - whereas you can't really say that the reference to potatoes locks in a legislative fact-finding that potatoes don't have a high glycemic index. Of course, you could imagine a statute regulating something so extensively that it would imply a legislative fact-finding about that something satisfying a general factual standard, e.g., a statute talks about safety generally and sets very reticulated standards for use of some substance, implying that the legislature found that the substance can be safe at all. But I think it's harder to read an implied fact-finding into a statute than an implied normative judgment, particularly where the implied fact-finding (as in the case of the potato) is easily falsifiable.
I think where I would differ from Hashim (besides that I probably don't agree with the "Argument" and merely find it more defensible than Dorf does) is that, to me, it's insufficient to just argue surplusage here; I think one needs some theoretical justification for the surplusage rule that maps onto some broader theory of constitutional interpretation. If the real justification for the anti-surplusage rule is that the reference to death shows the framers expected death to be constitutional, perhaps we shouldn't be enforcing the anti-surplusage rule. On the other hand, one might argue that anti-surplusage is a convention that people in the ratifying conventions would have employed in making sense of the text and that the public meaning they were ratifying implied that death was permitted by the Eighth Amendment. If you're making that argument, though, you do have to deal with Dorf's argument, which shows that sometimes when people speak, they can explicitly presuppose things which are, unbeknownst to them, contradicted by other things they say. Since language can work that way, it's possible that the ratifiers wouldn't have understood anti-surplusage to resolve this issue. Isn't it conceivable, for instance, that an anti-slavery ratifier might think to himself as follows - even though various specific provisions of the Constitution contemplate slavery, simply because at the present time it exists, more general provisions can be read to forbid slavery (even though that is probably not the intent or expectation of those provisions' drafters), and the mere contemplation of slavery elsewhere doesn't resolve the meaning of those provisions? People who opposed the death penalty at the time, if there were such people, could have reasoned similarly.
Asher -- the anti-surplusage canon is a general canon of textual interpretation, because readers presume writers typically don't issue contradictory instructions that render some of their language meaningless. Now, that presumption is of course not 100% accurate -- it's theoretically possible, as you and Mike point out, that writers held a mistaken premise and one provision should be read to trump another on the correct premise. But, where the potentially contradictory provision is vague -- as all agree that the 8A is -- there should at least be a heavy thumb on the scale that those who wrote and ratified the Constitution weren't issuing contradictory commands, and that the public didn't read and understand the Constitution to contain such a conflict. And here, there are plenty of plausible (indeed, correct) semantic interpretations of the 8A that avoid the conflict, so the onus is on those who would adopt a conflict-creating semantic interpretation of the 8A to justify that troubling choice.
@Sam: Several of your premises aren't originalist premises, so again, we're operating from different axioms.
It seems to me that your argument goes something like this:
Premise 1: We need to determine the semantic meaning of the phrase "cruel and unusual punishments."
Premise 2: The semantic meaning of this phrase is vague.
Premise 3: We should use our best moral judgment to determine whether this phrase includes all forms of capital punishment.
Premise 4: Under our best moral judgment, this phrase includes all forms of capital punishment.
Conclusion: Capital punishment is unconstitutional.
But bear in mind that an originalist looks for original public meaning--that is, for what a reasonably well-informed member of the public living at the time of a given provision's ratification would understand the provision to mean.
For this reason, Premise 1 is wrong. Original semantic meaning is one method of determining original public meaning. But it's not the only method. Put more precisely: when original semantic meaning is vague, an originalist will look beyond the semantic meaning--beyond the words in a context-less vacuum.
For the same reason, Premise 2 is right, but it doesn't end the vagueness analysis. As Hashim suggests, because the semantic meaning of "cruel and unusual punishments" is vague, we need to look elsewhere (if possible) to determine original public meaning--for instance, at common-law practice or historical context.
In other words, you might be able to determine the original public meaning of a text even when you can't determine its original semantic meaning. This is both obvious and hard to dispute. For example, how could you determine the meaning of the Due Process Clause without looking at common-law practice? The semantic meaning of the words "due process of law" on its own tells you very little.
Here, since the original semantic meaning of the Cruel and Unusual Punishments Clause is unclear, we can look to the Fifth Amendment for context. And as Hashim says, if the Eight Amendment had outlawed capital punishment, then the multiple references to the death penalty in the Fifth Amendment would be mere surplusage. But a reasonable person living at the time of the Bill of Rights' enactment wouldn't read that text to be superfluous; he or she would read it in a way that harmonized the Fifth Amendment with the Eighth, and the Eighth with the Fifth. So even if the original semantic meaning of the Cruel and Unusual Punishments Clause is vague as to the issue of capital punishment, the original public meaning isn't.
Premise 3 is wrong because an originalist would clarify the provision's vagueness by determining what a person living in 1791 would have understood the normative content of the Eighth Amendment to be, not by asking what we now think is cruel and unusual.
Premise 4 relies on Premises 1 through 3, so it's already out. But if it weren't, it would be troubling all on its own. As Justice Thomas said in Graham v. Florida (in a slightly different, but still Eighth Amendment, context), "I am unwilling to assume that we, as members of this Court, are any more capable of making such moral judgments than our fellow citizens. Nothing in our training as judges qualifies us for that task, and nothing in Article III gives us that authority."
I recognize that you're not an originalist, and whether originalism is right or wrong is a separate question. My point is simply that, if you operate within an originalist framework, The Argument is correct.
@James & Michael: I'm not sure how idiomatic the word "limb" is in the Double Jeopardy Clause. Read literally, the Double Jeopardy Clause wouldn't apply to losses of liberty, since it lists only "life or limb." So the Clause may use the word "limb" metaphorically, to include imprisonment.
Even still, the Fifth Amendment's language may also contemplate a literal loss of limbs. If it does, then I agree that chopping off limbs as punishment isn't unconstitutional. Originalists need to have the courage of their convictions on this.
To be fair to then-SG Bork, though, he couldn't have the courage of his originalist convictions during the Gregg v. Georgia oral argument because he was arguing before (and trying to persuade) a non-originalist Supreme Court.
Still, Bork's point about state legislative action is well taken, although for a slightly different reason than he gave. It's not right to say that chopping off limbs is now unconstitutional because it's unusual. The phrase "cruel and unusual" must be an irreducible term of art that's not divisible into its verbal components. Otherwise--if the word "unusual" did have an independent meaning--it would follow that any penalty, not matter how torturous or barbaric, would become constitutional if it became usual. ("Forty states and the federal government have passed laws permitting boiling in oil as a punishment? That's constitutional now!!")
But state legislative action prohibiting limb-chopping is important because it shows the democratic process acting as the moral voice of contemporary society. That's how our constitutional system is supposed to work--not with judges substituting their own moral reasoning for the original understanding of constitutional provisions. If it were otherwise, judges could run roughshod over the Eighth Amendment. ("This Amendment was originally supposed to prevent drawing and quartering? Too bad!! We say that that's not cruel and unusual anymore!!")
That's why the answer to Michael's (arguably tendentious!) question--"At what point do we get to jettison a slavish devotion to 18th Century views of morality and cruelty?"--is "Never!" If we jettison the 18th century understanding of the Cruel and Unusual Punishments Clause, then a barbaric populace, abetted by bloodthirsty judges, could impose barbaric methods of punishment. The whole point of the Eighth Amendment is to avoid that.
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