The opinion in Glossip v. Gross by Justice Breyer, joined by Justice Ginsburg, lays out their reasons for believing that the Supreme Court should address head-on the issue of whether the death penalty is constitutional in any circumstances. To my mind, the case the opinion makes is cogent. I think Breyer and Ginsburg are right to say, in particular, that a penalty applied so inconsistently, both failing to systematically punish "the worst of the worst" and on occasion likely falling on people who are actually innocent, can't be justified, especially outside the context of war. (War may be different, essentially because life is so often taken in war anyway. But the Guantanamo war crimes investigations and prosecutions have been so emphatically problematic that I am inclined to say that here too the arguments against the death penalty are persuasive.)
The impossibility of running a death penalty system fairly, reliably and consistently means that the death penalty should be unconstitutional. But it doesn't quite mean that it is unconstitutional.
Justice Scalia responds to Breyer's argument with this observation (among others): "It is impossible to hold unconstitutional that which the Constitution explicitly contemplates." (Scalia, J., concurring, at 2.) (Emphasis in original.) There's no disputing that both the Fifth and Fourteenth Amendment do "contemplate" capital punishment. The Fifth Amendment addresses the requirements for trial of a "capital ... crime," and both Amendments forbid the government from depriving anyone of "life" without due process of law.
But while the Constitution certainly “contemplates” the existence of capital punishment, no one claims that it mandates that capital punishment be one of the penalties American jurisdictions employ. Clearly, also, some things the Constitution did not contemplate have come to be part of our world. The Framers in 1787 did not contemplate an Air Force. Nor, I’ve read, did they contemplate (that is, expect the rise of) political parties.
Here’s one more example: The Framers did not anticipate the development of an economy that was so massively interconnected that the power to regulate interstate commerce, which they explicitly granted to Congress in the Constitution, could come to encompass the regulation of almost anything. Whatever the exact limits on a proper modern interpretation of the reach of the interstate commerce clause (a question still, and perhaps forever, under debate), the changes of the past two centuries – only dimly foreseen, if at all, by the framers, have added to congressional power and reduced state authority.
That last point is of particular importance here, because what has happened is not only that federal power has grown but that state power has contracted. That’s striking, because the Tenth Amendment of the Constitution can be said to “explicitly require,” not just “contemplate,” the preservation of state power. The Tenth Amendment provides that: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This language, although its exact meaning becomes elusive as soon as it is carefully parsed, nevertheless plainly is asserting not only what the Framers “contemplated” but what they meant to mandate. Yet the authority of the states has in fact been reduced by the uncontemplated impact of social change, as transmuted into constitutional understanding. Clearly we can only see this evolution as constitutionally acceptable if we believe that the meaning of the constitution’s words can evolve over time – but I do believe that, and in fact believe that a constitution as hard to amend as ours can only remain meaningful over centuries of time if its words’ meaning can evolve with the circumstances they govern.
So I don’t think that what the Framers “explicitly contemplated” is necessarily constitutional today. Justice Breyer writes, and I agree, that “‘the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’” (Breyer, J., dissenting, at 40.) (Emphasis added.)
But what Breyer says doesn’t directly address the question of how to read the Constitution if it “contemplates” two opposing things – in this case, the potential unconstitutionality and the assumed constitutionality of capital punishment. I want to turn to this question of what to make of a possible self-contradictory constitution in a coming post.