Suppose that the U.S. constitution didn't simply "contemplate" the death penalty, but included a sentence declaring, without qualification or limitation, "The death penalty is constitutional." But let’s assume that the same constitution equally explicitly, and equally without qualification, forbids arbitrary and inconsistent punishment. (Whether our constitution does so can be disputed: Justice Scalia would maintain that it is no mark of “cruel” punishment that one person receives the penalty he or she deserves, while another for inexplicable reasons gets off more lightly. Glossip, Scalia, J., concurring at 4.) Suppose also that Justice Breyer's argument in Glossip is right: the death penalty is arbitrary and inconsistent punishment.
At this point the death penalty both is and isn't unconstitutional, depending on which provision of the constitution we look to. So which provision should we look to? This is a difficult question, to say the least. U.S. courts do not consider themselves in the business of declaring parts of our constitution unconstitutional, but the issue I've imagined seems to force courts to consider doing exactly that.
If either provision contained additional language, of the sort often seen in statutes, saying that this provision was to apply "notwithstanding anything to the contrary in any other provision," we would have a clear textual answer. But then there wouldn't really be a contradiction between the two provisions, since one would take precedence over the other.
Absent such textual directives, we could look to principles of textual interpretation to resolve the contradiction we face. If one provision was adopted later than the other, an interpretive canon favoring the last-adopted provision (as presumably reflecting the adopters' most recent thinking) could be applied, but this won't help us if all the provisions were adopted at the same time.
Another such guideline is that the more specifically applicable provision should be applied rather than a more generally phrased one. The idea here is that broad principles can have many meanings, and that what the adopters said on the specific matter at hand tells us what they intended the reach of their broad principles to be. So, here, the constitution's adopters could be taken to have meant that the prohibition of arbitrary and inconsistent punishment could have many meanings and could be applied in many contexts, but that the death penalty was not to be held to be arbitrary and inconsistent.
But if the death penalty really is arbitrary and inconsistent, then why should it be exempt from constitutional scrutiny directed at that reality? One response to this critique, to be sure, is to reinterpret what we mean by "arbitrary and inconsistent"; if those words have a narrower meaning than we thought, then the death penalty could be upheld on the ground that it actually is not arbitrary and inconsistent, according to the meaning that those words should be understood to have. But I want to assume that we are satisfied that our interpretation of "arbitrary and inconsistent" - the interpretation that would strike down the death penalty - is the correct one.
(Let me rephrase that claim, to acknowledge that calling one interpretation rather than another "correct" may be a form of hubris. So let me assume simply that we are satisfied that our interpretation of this prohibition is the one that makes the best sense to us in light of all the factors that affect our interpretations. I have to acknowledge that even this assumption is quite a strong one; a court not so sure that its preferred mode of interpreting the constitution is so compelling would have correspondingly less justification for using its interpretive approach to override clear language pointing the other way.)
All that said, there is also another problem with the "specific controls the general" approach. This is that this interpretive guideline exists in a sea of interpretive principles, many of them pushing in opposite directions, a point vividly stated (and perhaps somewhat overstated) by Karl Llewellyn years ago. Exactly what weight is to be given to any given interpretive principle is always, in the end, a contextual question.
But isn't it clear that whatever else the adopters meant, they certainly meant to affirm the death penalty's constitutionality? This argument would not only resolve our interpretive confusion but give us a principled argument for accepting the death penalty: that doing so honors the democratic choice of the constitution's adopters. But the adopters also meant to bar arbitrary and inconsistent punishments. They may have thought they could do both - but we have concluded that we can only do one or the other. (That could be because we are misunderstanding the prohibition of arbitrary and inconsistent penalties - but, again, I'm assuming that our interpretation of that prohibitions meaning is correct, or at least so cogent that we are confident of its appropriateness.)
If we can only obey one constitutional command, which should it be? The price of obeying the clause safeguarding the death penalty is that we can only do so by disregarding the penalty’s arbitrariness and inconsistency. That seems to me to be too high a price to pay. The death penalty is just one penalty; the principle of avoiding arbitrariness and inconsistency is a broad principle that in one way or another today pervades our law. To decide in favor of the application of the rule against arbitrariness and inconsistency is to rest decision on this principle; to rule in favor of the provision protecting the death penalty is to say that this same principle has its limits, limits that have no logical basis except the sheer fact that the constitution declares them – and the problem with that logical basis, as we’ve already seen, is that the constitution as we’re reading it declares these limits but also undeclares them: it is self-contradictory.
Courts, as Justice Scalia has said, want to shape the body of our laws to make as much sense as possible. The desire for a jurisprudence and a nation always acting based on principle is also a major theme of post-apartheid South African law, famously articulated by the anti-apartheid scholar Etienne Mureinik in his article A Bridge to Where? Introducing the Interim Bill of Rights, 10 South African Journal on Human Rights 31 (1994). I am not confident that we can apply our principles relentlessly and universally; I suspect, with Hamlet, that there are “more things in heaven and earth” than are encapsulated in any set of principles we might affirm. But if a choice must be made, which is what the situation I've posited demands, then I believe the right decision is the choice of principle and logic rather than unreasoned exception - or in other words to hold the death penalty unconstitutional because of its arbitrariness and inconsistency.