{"title":"The Death Penalty and the Fifth Amendment","authors":"Joseph Blocher","doi":"10.2139/SSRN.2682657","DOIUrl":null,"url":null,"abstract":"Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant to the claims being made against the constitutionality of capital punishment. At most, the references to the death penalty in the Fifth Amendment may reflect a founding era assumption that it was constitutionally permissible at that time. But they do not amount to a constitutional authorization; if capital punishment violates another constitutional provision, it is unconstitutional. And once that point is conceded, the Fifth Amendment Argument does very little work. There might be good arguments for the constitutionality of the death penalty, but the Fifth Amendment is not among them.","PeriodicalId":47587,"journal":{"name":"Northwestern University Law Review","volume":"111 1","pages":"275-294"},"PeriodicalIF":2.0000,"publicationDate":"2016-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2682657","citationCount":"2","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"Northwestern University Law Review","FirstCategoryId":"90","ListUrlMain":"https://doi.org/10.2139/SSRN.2682657","RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q1","JCRName":"LAW","Score":null,"Total":0}
引用次数: 2
Abstract
Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant to the claims being made against the constitutionality of capital punishment. At most, the references to the death penalty in the Fifth Amendment may reflect a founding era assumption that it was constitutionally permissible at that time. But they do not amount to a constitutional authorization; if capital punishment violates another constitutional provision, it is unconstitutional. And once that point is conceded, the Fifth Amendment Argument does very little work. There might be good arguments for the constitutionality of the death penalty, but the Fifth Amendment is not among them.
最高法院能认定宪法文本“深思熟虑”的东西违宪吗?如果《权利法案》提到了惩罚,这是否使其成为一种“允许的立法选择”,不受独立的宪法挑战?最近的事态发展给那些寻求通过宪法废除死刑的人带来了新的希望。但一些死刑的支持者继续争辩,就像他们在弗曼诉格鲁吉亚案(Furman v. Georgia)之后所做的那样,死刑必须符合宪法,因为第五修正案明确考虑了死刑。这一论点的吸引力是显而易见的,但其力量在很大程度上是肤浅的,而且与反对死刑合宪性的主张也大多无关。《第五修正案》中对死刑的提及最多可能反映了建国时期的一种假设,即当时宪法允许死刑。但它们并不等于宪法授权;如果死刑违反了宪法的其他规定,那么死刑就是违宪的。一旦承认了这一点,第五修正案的论点就没什么作用了。死刑的合宪性可能有很好的论据,但第五修正案不在其中。
期刊介绍:
The Northwestern University Law Review is a student-operated journal that publishes four issues of high-quality, general legal scholarship each year. Student editors make the editorial and organizational decisions and select articles submitted by professors, judges, and practitioners, as well as student pieces.