Alec Ward | Un-cruel and unusual

Talking Backward | An originalist case against the death penalty

By Alec Ward 10/20/15 9:26pm

Last week, the Supreme Court of the United States heard oral arguments in two cases challenging the constitutionality of specific impositions of the death penalty. Both Montgomery v. Louisiana and Hurst v. Florida concern procedural technicalities rather than the broad issue of whether the Eighth Amendment forbids capital punishment. Nevertheless, many in the legal community who hold strong opinions on that issue are watching the cases closely.

There are two main reasons for this: Firstly, there is the fact that in his dissenting opinion in Glossip v. Gross, decided at the end of last term, Justice Stephen Breyer — who often speaks for the court’s four-member liberal wing — wondered aloud about the overall constitutionality of capital punishment. Since a minority vote of four out of nine justices can bring a case before the court, many read the opinion as an invitation to bring such a case. Secondly, there is the fact that the past few weeks have seen a spike in activity within America’s death chambers. Since the beginning of September, there have been five executions carried out in the U.S., and two last-minute postponements.

As an irresolute libertarian generally suspicious of government’s competency and good faith, I tend to philosophically oppose the death penalty, thinking it unwise to give the state power to take away an individual’s life, especially since the punishment cannot be undone if erroneous.

However, as one resolutely committed to democracy and the rule of law, I wish to see courts upholding the law strictly as it is written rather than their own visions of justice and morality; I am broadly suspicious of theories of “living constitutionalism” which assert that judges should continually re-interpret the meaning of constitutional text in order to align its mandates with their own visions of “contemporary morality.” I contend that to do so would concentrate far too much power over policy in the hands of unelected judges.

In the contemporary legal atmosphere, such convictions align me loosely with the “originalist” school of theory, which contends that text and history are the only legitimate lenses through which to view constitutional questions, and that deference should be given to the “original public meaning” of the Constitution. Since nobody in 1791 understood the Eighth Amendment to prohibit executions, and since the Fifth Amendment explicitly condones state takings of life, provided due process, originalists contend that the Constitution permits the death penalty.

I can’t help but think, however, that the popular originalist theory of what “cruel and unusual punishment” means places undue emphasis on the original meaning of “cruel” as opposed to “unusual.” And while capital punishment almost certainly does not meet the 1791 definition of cruelty, I think there is good reason to suspect that it may meet the 1791 definition of unusuality.

Thomas Sheridan’s “Complete Dictionary of the English Language,” published in 1790, defines “unusual” as “not common, infrequent, rare.” What is significant about this definition is not its precision, but rather its demand for context; something can only be rare or uncommon in a particular space and time. Trees are rare in the Sahara desert, but not in New Hampshire. Capital punishment was indubitably common in 1789, but is it today?

In short, no. According to the Bureau of Justice Statistics, 8,760 people were convicted of murder or nonnegligent manslaughter in 2006, the last year for which there are comprehensive figures on state convictions. Of these, only 173 were sentenced to die. In other words, the likelihood of being sentenced to death for killing someone in 2006 was 2 percent. Death sentences become even more erratic in appearance when one takes into account well-demonstrated racial imbalances in their application and the fact that all of the death sentences imposed since 1976, when the death penalty was reinstated, have resulted from cases originating in just 20 percent of U.S. counties. To any reasonable person, whether born in 1990 or 1790, the death penalty of 2006 looks rare. To an originalist of integrity, this has to be significant.

I wish to conclude by apologizing for the gross over-generalizations I have employed throughout this piece. In my defense, I offer only the claim that real constitutional theorists perhaps have editors less ruthlessly concise than mine.

ALEC WARD is a College junior from Washington, D.C., studying history. His email address is alecward@sas.upenn.edu. Follow him on Twitter @TalkBackWard. “Talking Backward” usually appears every other Wednesday.

Please note All comments are eligible for publication in The Daily Pennsylvanian.