ARGUMENT: The Originalist Case Against Capital Punishment


Friday, January 14, 2022

Note from the Editor: The following is the first of two articles wherein Lone Conservative Contributors debate the meaning of the Fifth and Eighth Amendments to the Constitution. Stay tuned for a rebuttal piece by Ethan Mackler. 

I consider myself to be an originalist. The Constitution ought to be interpreted as the Framers understood it. But I have recently found myself at odds with other originalists on the right over my position that the death penalty can be unconstitutional. 

Let me first preface that I reject the notion of a living Constitution. My argument derives not from what former Chief Justice Earl Warren called “the evolving standards of decency” but from what I find to be the original meaning of the Eighth Amendment. Furthermore, I want to clarify that I am a supporter of capital punishment and recognize the soundness of its constitutionality in principle. I am merely arguing that it could, under certain circumstances, be unconstitutional.

I can also recognize the poor jurisprudence in cases such as Furman v. Georgia, Coker v. Georgia, and Atkins v. Virginia that misapplied the prohibition on cruel and unusual punishment.

Other originalists, such as the late Associate Supreme Court Justice Antonin Scalia, have argued that because capital punishment was not seen as “cruel and unusual” by the Founders, the Constitution permits the death penalty in all cases and that any punishments that were legal and accepted when the Eighth Amendment was ratified in 1791 are automatically constitutional today. 

The words of the Eighth Amendment derive verbatim from the English Bill of Rights over 100 years earlier in 1689. Burning at the stake and disembowelment continued in mainland Britain into the eighteenth and nineteenth centuries respectively, yet such practices never took place in the United States. If words do not change their meaning, are we to presume that these nearly identical phrases can mean different things at a different time and place despite originating from the same English and Judeo-Christian tradition? 

Any measure of “cruel” is innately subjective; likewise, “unusual” must be with respect to a time and place. Definitionally, both are mutable.

In addition to barring cruel and unusual punishment, the Eighth Amendment also prohibits excessive bail and excessive fines. Here, the lines are even blurrier and more arbitrary. How does one determine what is monetarily “excessive” considering that US dollars did not exist when the Eighth Amendment was ratified and while accounting for inflation? I fail to see why the Framers would have wanted us to abide by the unattainable standard of 1791 in-perpetuum. From an originalist perspective, these words were engineered to adjust proportionally over time. The same principle applies to the “cruel and unusual” clause, given its proximity and comparable ambiguity to the “excessive bail” and “excessive fines” clauses.

Furthermore, the standard of 1791 fails to address methods of capital punishment that were invented after the Constitution was ratified. The electric chair, gas chamber, and lethal injection have all been used to carry out the death penalty in the United States, and I believe there is a reasonable case that each of these methods could be considered a form of torture prohibited by the Eighth Amendment. The electric chair has been known to set criminals on fire or require multiple attempts to complete the execution. With the use of poison gas, criminals remain awake and experience extreme pain for ten minutes or longer. In the case of lethal injection, errors and delays are common because of inexperienced prison personnel who administer the drugs. Is it unreasonable to place these three modern methods of execution in the same category as burning at the stake or crucifixion, which are evidently unconstitutional? I don’t think so. 

In fact, the only method of capital punishment used in the United States that has never been botched is the firing squad. I find this method alone to be sufficiently humane.

Regardless of the method, the constitutionality of the death penalty based on the severity of the crime is an indiscernible question. There is no possibility of interpreting “cruel and unusual” in an objective manner. 

The Bill of Rights was intended to protect the people from the predations of a powerful central government by restricting the federal government’s authority. Allowing the Supreme Court to unilaterally and subjectively rewrite the Eighth Amendment is a breach of this agreement. 

The ambiguity of the Eighth Amendment indicates that it was a question meant for the states, not the Supreme Court. As Alexander Hamilton stated in The Federalist Papers No. 83, “The rules of legal interpretation are rules of commonsense.” Capital punishment can be correctly ruled unconstitutional only as a matter of common sense, as the Framers originally would have wanted it.

Russell Kitsis is a Jewish conservative student at Babson College. Russell is studying finance and hopes to work in investment banking upon graduation.

The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.

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About Russell Kitsis

Russell Kitsis is a Jewish conservative student at Babson College. Russell is studying finance and hopes to work in investment banking upon graduation.

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