This is a common belief, but I don’t think it’s accurate. From Federalist #78 (Hamilton):

“[T]hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter….The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution I understand one which contains certain specified exceptions to the legislative authority: such for instance as it shall pass no bills to attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights and privileges would amount to nothing.”

This passage pretty clearly spells out an assumption that judicial review was a fundamental part of the Constitution even if it was not explicitly stated.

Anywho, I have a problem with the passage in the opinion regarding the effect of the death penalty on victims – it strikes me as completely irrelevant to the question of whether the death penalty, as applied in this instance, is “cruel and unusual.”

That said, the concept of an evolving standard is, I think, implied by the phrase “cruel and unusual.” The phrase requires that for a penalty to be unconstitutional, it must be both cruel and unusual. There should be little doubt that a death penalty is always or almost always “cruel.”

So the inherent question in any 8th Amendment death penalty case has to be whether the penalty is “unusual.” The very word “unusual” implies a comparison with something else, and it is a perfectly valid act of judicial interpretation to try to discern what, exactly, that “something else” is. For me personally, I think it would be absurd to make that “something else” the accepted criminal penalties of 1789. Instead, I think it is a far more appropriate interpretation of the word “unusual” to say that it means “unusual” in comparison to current practices.

Remember that, until Marbury v. Madison in 1801, the very idea of judicial review didn’t even exist so I don’t think it’s fair to say that the Founders intended that the Supreme Court, or the lower Federal Courts, would have a primary role in determining what “cruel and unusual” meant, or in deciding that a particular form of punishment is no longer acceptable.

I think they would say that that is what the legislature is for.

You’re probably right on that as well, but we both are well aware of the law of unintended consequences. We have to remember that even as wonderful as our Constitution is, it was written by men and interpreted by men. Because men are flawed, sometimes the reasoning will also be flawed (you could argue that my reasoning is flawed on this issue). All the more reason why I do not trust the state with killing.

The question we should ask, though, is how the Founders intended that an evolving standard of what acceptable punishment is should be implemented.

I think that is a very important debate which should be had. I simply do not know the answer.

True.

There is a line somewhere. The guillotine would not be acceptable under the 8th Amendment, for example, IMO, nor would a law permitting execution for jaywalking or drunk driving.

The question we should ask, though, is how the Founders intended that an evolving standard of what acceptable punishment is should be implemented.

Remember that, until Marbury v. Madison in 1801, the very idea of judicial review didn’t even exist so I don’t think it’s fair to say that the Founders intended that the Supreme Court, or the lower Federal Courts, would have a primary role in determining what “cruel and unusual” meant, or in deciding that a particular form of punishment is no longer acceptable.

I think they would say that that is what the legislature is for.

All good points. The reason I say that “cruel and unusual” is an evolving standard is because the founders did not specify what they meant to be cruel and unusual. I believe they did so intentionally so that each generation could make their own determinations. Clearly, what was acceptable punishment for the death penalty in their time would be considered by most as cruel and unusual today.

Cruel and unusual punishment” is an evolving standard that is not spelled out in the Constitution but is left to be defined by “the people” or *possibly* by the courts (that’s my lay understanding anyway, I’m sure you can set me straight wherever I’m wrong). The state legislatures are probably better suited than the courts to make this determination.

There’s a difference between having something decided by “the people” and having the Supreme Court impose it’s one definitions on the nation as a whole, don’t you agree ?

Of course the standards applied in criminal cases are different from those applied in copyright law cases, but you make an excellent point nonetheless.

I am far from being a majoritarian, but the Constitution reserves certain issues for the legislature and the states and this, I think, is one of them.

Why should “cruel and unusual punishment” be subject to anymore of an evolving standard than any other provision of the Bill of Rights or the Constitution ?

When the 8th Amendment was passed, and for a good period afterwards, you could be put to death for several crimes that had nothing to do with murder including, according to what I’ve read, horse theft. Moreoever, the types of execution used back then were arguably far more painful and gruesome than the relatively benign lethal injection common in most states. Based on that, I find it hard to believe that the Founders would have found the idea of executing a man who rapes his 8 year old stepdaughter all that cruel or unusual.

I share your concerns about the criminal justice system wrongly convicting people, mostly because I’ve seen how that system works up close long enough to know it’s far from being as good as it could be. And crimes involving sexual assault on children are frequently ones where someone is wrongfully accused — witness the McMartin pre-school case from back in the 1980s.

If I had been in the Louisiana legislature when this bill came up, I would most likely have voted against it because of that.

From a legal point of view, however, I don’t see how prescribing execution as a possible punishment in a case like the one at issue is per se unconstitutional.

The Court made the wrong decision today because it made a decision it didn’t have the authority to make, IMO.

There the majority argued that while the law was manifestly unwise, Congress had authority to set copyright terms to whatever arbitrary value they wanted to and that was where the court’s oversight ended.

While I am strongly opposed to capital punishment, and so would like to see the death penalty abolished in all cases – including cases where people rape children to death – I think the court really erred in the reasoning they used to arrive at this judgment.

My problem is we are talking about the state killing people. It’s taken me a long time to come around to this position but I think the death penalty is immoral for a variety of reasons. The main reason I oppose the death penalty is that I simply do not trust our system or the government with the power to kill someone. Cases such as Cory Maye and Genarlow Wilson and the findings of The Innocence Project, come to my mind as examples of how unjust and flawed our system can be. If I were sure that the guilty was convicted 100% of the time, I would not have much problem at all with the death penalty. If even ONE person is wrongfully executed by the state, that one innocent person is far too many. A wrongfully executed individual cannot ever be brought back; at least with incarceration the innocent can be set free.

Perhaps the court made the right decision for the wrong reasons (I have not read the opinion yet so I cannot be sure at this point) but I would prefer that if the court should err it should err on the side of life.