The Subtle Unraveling of Federalism: The Illogic of Using State Legislation as Evidence of an Evolving National Consensus

70 Pages Posted: 29 Sep 2005 Last revised: 4 May 2010

See all articles by Tonja Jacobi

Tonja Jacobi

Emory University School of Law

Date Written: September 26, 2005


The Supreme Court's cruel and unusual punishment jurisprudence increasingly relies on state legislation to establish whether a national consensus has evolved against particular forms of punishment. This article argues that trends in state legislation should not be a basis for interpreting the Eighth Amendment. Using state legislation to establish a national consensus is contrary to basic notions of federalism, and is so methodologically indeterminate as to be entirely subjective. The states were intended to be independent from one another's policy preferences, to allow them to act as policy-making laboratories for the nation. Resting constitutional interpretation on the preferences of a majority of states is antithetical to the federal system. In application, the use of state legislation creates doctrinal chaos. The Supreme Court cannot agree on how to characterize, group or count state legislation. Once legislation is counted, the Court cannot agree on what actually constitutes a "consensus." Although the Court justifies its reliance on state legislation on the basis of its alleged objectivity, this uncertainty means that the use of state legislation is more subjective than traditional doctrines, such as culpability and proportionality. The lack of a clear standard as to what constitutes a national consensus has resulted in questionable findings, which in turn are relied on, creating an increasingly lax standard of cruel and unusual jurisprudence.

Keywords: cruel and unusual, eighth amendment, constitutional law, death penalty, Supreme Court, state legislation, federalism, methodology

JEL Classification: K1, K14, K42

Suggested Citation

Jacobi, Tonja, The Subtle Unraveling of Federalism: The Illogic of Using State Legislation as Evidence of an Evolving National Consensus (September 26, 2005). Northwestern Public Law Research Paper No. 05-15, Northwestern Law & Econ Research Paper No. 05-19, North Carolina Law Review, Vol. 84, 2006, Available at SSRN: or

Tonja Jacobi (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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