Can the Constitution's text both protect and prohibit the death penalty? (A thought experiment)

To consider the possibility of a self-contradictory constitution, I want to assume that what the Constitution actually says about the death penalty is much blunter than it actually is – that in fact the Constitution declares that "the death penalty is constitutional under the Fifth and Fourteenth Amendments," the provisions that (as I discussed in my previous post) Scalia in reality invokes in Glossip v. Gross as “explicitly contemplating” capital punishment. Could it be that the death penalty is nevertheless unconstitutional?

One way to make progress with this question would be to ask: “under what provisions of the Constitution could the death penalty be held unconstitutional?” I think that the language I’ve imagined, declaring that “the death penalty is constitutional under the Fifth and Fourteenth Amendments,” does bar any court from saying that, after all, the death penalty is not constitutional under these amendments. For a court to simply contradict the text strikes me as unequivocally denying the power of the people to rule themselves.

It’s worth mentioning that not all legal systems would agree. There are courts which have reasoned that their constitution contains a core meaning that simply cannot be contradicted; if the people of the country adopt new language departing from that core meaning, what they have adopted will itself be unconstitutional and void. One could extend this reasoning to say that even language that was part of the constitution all along was so out of synch with the constitution’s true core meaning that it had to be treated as unconstitutional. (Ronald Dworkin, I believe, made such an argument about the Fugitive Slave Clause of the United States Constitution in the years before the Civil War.) But the United States Supreme Court has not reasoned this way. 

There is, however, another possible answer to the question I asked: “under what provisions of the Constitution could the death penalty be held unconstitutional?” This answer would be: not under the Fifth and Fourteenth Amendments, as to which the text commands an answer, but under the Eighth Amendment. That Amendment prohibits “cruel and unusual punishments,” and the constitutional text I’ve imagined, declaring that the death penalty is constitutional under the Fifth and Fourteenth Amendments, says nothing about whether the death penalty is also constitutional under the Eighth Amendment. 

(Or at least my hypothetical language says nothing explicit about this. Long-established constitutional law reads the Eighth Amendment as applying of its own force only to the federal government, and as reaching the states only through “incorporation” via the Fourteenth Amendment, so one might say that my language about the death penalty's constitutionality under the Fourteenth Amendment barred any decision that the states could not impose the death penalty. One could even argue that this understanding of the Fourteenth Amendment echoed back to the Eighth Amendment and so indicated that the death penalty couldn't be invalidated even as to the federal government. But these complexities needn’t detain us; the hypothetical language I’ve imagined could have been written differently to get around these issues, and I’m using it only to frame the problem of a self-contradictory constitution.)

Could it be, then, that the Eighth Amendment prohibits what the constitutional text explicitly protects with respect to the Fifth and Fourteenth Amendment? Actually, the answer is yes. One might argue for this conclusion simply as a matter of logic: the Eighth Amendment is not the Fifth or Fourteenth, and each amendment can and should have its own meaning (an application of the interpretative idea that no part of the text should be seen as superfluous). But this conclusion also turns out to have a basis in already established constitutional law.

Consider this provision, a part of Article IV, Section 2 of the Constitution:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

The meaning of this provision may seem obscure, but only because what it refers to is long gone. This is the Fugitive Slave Clause that I mentioned a little earlier in this post. Slavery long ago became unconstitutional in the United States, the result of the Union’s victory in the Civil War and the adoption of the Thirteenth Amendment. But – and this is the important point for my argument – the Fugitive Slave Clause was not removed from the Constitution. It is still there. Yet no one today can lawfully hold another person in slavery, nor insist on the return of a slave who escaped from bondage. So, actually, this provision of the Constitution is unconstitutional.

None of the provisions of our Constitution that subsequent amendments have overridden has been removed from the text. (This is quite unlike our practice with statutes; when a statute enacted in one year is amended in a later year, all subsequent texts of the statute include only the language as amended.) It follows that quite a number of provisions of our constitutional text are in fact unconstitutional.

But it might be said that this version of constitutional self-contradiction isn’t real. We find it convenient to keep in the text of our constitution the various parts of it that amendments have altered, but they aren’t really part of the constitution itself, we might say, and so the constitution isn’t really contradicting itself. The clearest support for this argument may be the Twenty-First Amendment, which ended Prohibition. The first section of the Twenty-First Amendment declares: “The eighteenth article of amendment to the Constitution of the United States [the one that created Prohibition] is hereby repealed.” But the Eighteenth Amendment still appears in our Constitution; it’s been repealed but not erased. That might be seen as what’s happened with the other provisions we’ve altered by amendment as well, though I don't believe any other amendment in fact declares that the earlier provisions it is altering are also "repealed."

So can we find any instances of more substantial self-contradiction? The answer, I’ll argue in a future post, is yes.