Download This PaperIs Capital Punishment Unconstitutional? And Even If We Think it is, Should We Want the Supreme Court to so Rule?
41 Pages Posted: 4 Dec 2006 Last revised: 10 Mar 2020
Date Written: January 26, 2007
Abstract
Whether a law (or other policy) is unconstitutional is one question; whether the Supreme Court (in an appropriate case) should rule that the law is unconstitutional is a different question. Contemporary constitutional theorists are virtually unanimous in ignoring the analytic space between the two questions. That a law is unconstitutional does not entail that the Supreme Court should rule that the law is unconstitutional. In this paper - a revised version of which will be my contribution to a symposium issue of the Georgia Law Review honoring Professor Milner Ball - I explain why we should conclude that capital punishment violates the cruel and unusual punishments clause. (I am inclined to think that we are all originalists now; in any event, my explanation presupposes an originalist conception of constitutional interpretation - although, to be sure, *not* Antonin Scalia's misconceived originalist conception of constitutional interpretation.) I also explain, however, why the Supreme Court (probably) should not rule that capital punishment is unconstitutional.
Keywords: constitutional law, constitutional theory, originalism, interpretation, capital punishment, constitutionality, cruel and unusual punishment, Supreme Court
Suggested Citation: Suggested Citation
Michael John Perry (Contact Author)
Emory University School of Law ( email )
1301 Clifton Road
Atlanta, GA 30322
United States
404-712-2086 (Phone)