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July 26, 2016

"The Death Penalty and the Fifth Amendment"

The title of this post is the title of this essay authored by Joseph Blocker and just published online by the Northwestern Law Review. Here is part of the introduction: 

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?

The dueling opinions in Glossip v. Gross have brought renewed attention to the constitutionality of the death penalty. In a dissent joined by Justice Ginsburg, Justice Breyer identified “three fundamental constitutional defects” with the death penalty.... Justice Breyer’s dissent marked the first time that two members of the current Court have announced a belief that the death penalty is likely unconstitutional “in and of itself,” and the opinion has justifiably been treated as a significant development.

In a blistering concurrence, Justice Scalia (joined by Justice Thomas) wrote that the dissent was full of “gobbledy-gook,” and that “not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible.” Justice Scalia argued that the Fifth Amendment afforded a textual basis for the capital punishment’s continued constitutionality....   Announcing his concurrence from the bench, Justice Scalia made the point even more strongly, saying that “the death penalty is approved by the Constitution.” He and many others have made some version of this point...

The Fifth Amendment contains prohibitions, not powers, and there is no reason to suppose that it somehow nullifies other constitutional prohibitions — most importantly, the ban on cruel and unusual punishment.  The real target of the Fifth Amendment Argument can only be the Court’s longstanding Eighth Amendment doctrine, which is not limited to the punishments considered cruel and unusual at the time of the Constitution’s framing. Unless and until that doctrine changes, the Argument itself carries no weight.

To be clear, the inverse argument would be equally faulty. The weakness of the Fifth Amendment Argument does not mean that the death penalty is unconstitutional, let alone “categorically” so, only that the “constitutional defects” Justice Breyer identifies cannot be dismissed out of hand.  Glossip, along with other developments in law and practice, have made the continuing constitutionality of capital punishment a pressing question. That question should be answered without the distraction of the Fifth Amendment.

July 26, 2016 at 08:49 AM | Permalink


To be clear, the inverse argument would be equally faulty. The weakness of the Fifth Amendment Argument does not mean that the death penalty is unconstitutional, let alone “categorically” so, only that the “constitutional defects” Justice Breyer identifies cannot be dismissed out of hand. Glossip, along with other developments in law and practice, have made the continuing constitutionality of capital punishment a pressing question. That question should be answered without the distraction of the Fifth Amendment.

Sheer idiocy. Unquestionably, the Constitution contemplates that capital punishment may be meted out.

Posted by: federalist | Jul 26, 2016 11:18:48 AM

The Fifth Amendment may not authorize capital punishment, but it is strong evidence that the understood meaning of "cruel and unusual" didn't include capital punishment.

Posted by: Erik M | Jul 26, 2016 11:41:48 AM

Though some might think the issue obvious, I think the article makes a good case.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fifth Amendment sets forth certain limits that contemplates capital punishment though the one express citation here hasn't even been applied to the states (Hurtado v. CA never overruled as applied to grand jury requirements).

The one express citation of "capital" crimes does not only apply to them and as the article say is not a grant of power to have them. It is quite possible that some other provision -- including as times and situations change over time the 8A -- might make capital punishment unconstitutional. At the very least, and leading people at the time as well as practice shows this, as applied to certain crimes or people who commit them. I note Erik uses the past tense too ("understood").

[The 8A provides an opening, as understandings change, to have a more open-ended limit while the 5A provides a basic set of procedures more immediately. It should be noted though that even in 1791 was there some inkling that the d.p. was unjust and by implication an undue use of power. http://press-pubs.uchicago.edu/founders/documents/amendVIIIs16.html]

Finally, the due process provision is general -- it concerns a range of deprivation of life. It particularly does not expressly say that the death penalty is acceptable. As with ear cropping and other "jeopardy to limb," practices seen as constitutional then, with its understanding of due process, might be unconstitutional today. The text is usefully open-ended in that respect. At the very least, as the article notes, specific procedures might be improper, even if in theory capital punishment might be possible. Cf. how Jewish practice left open capital punishment under the Torah, but in practice set forth so many safeguards, it was near impossible to apply.

BTW, the "Fifth Amendment is not a grant of power" argument was made by conservatives; Thomas, e.g., applied it to takings. He argued there had to be an independent power to "take" in the first place. Kelo v. New London (dissenting opinion): "The Takings Clause is a prohibition, not a grant of power: The Constitution does not expressly grant the Federal Government the power to take property for any public purpose whatsoever. Instead, the Government may take property only when necessary and proper to the exercise of an expressly enumerated power."

Posted by: Joe | Jul 26, 2016 12:11:41 PM

ETA: "in jeopardy of life or limb" probably does imply capital punishment, but it's literal reach is broader. There is a range of ways you can be put "in jeopardy of life" without actually expressly being sentenced to die & the term is used as unit to cover punishment generally.

"Capital" has added force there. The point is not damning anyhow -- the limit doesn't authorize the government to do things like ear crop or whip. It's quite possible that they won't be able to by another provision. It simply provides a limit if they do so.

Posted by: Joe | Jul 26, 2016 12:18:20 PM

The idea that the Constitution does not grant the power to execute is semantics--the fact is that the Constitution contemplates that capital punishment is available to be used.

Posted by: federalist | Jul 26, 2016 12:24:58 PM

While the rest of the article is somewhat better in making textual arguments, the introduction simply ignores the canons of constuction.

It is possible for a later amendment to "alter" an earlier constitutional provision -- e.g., the Twelfth Amendment changing the rules governing presidential elections found in Article II. When provisions are enacted at the same time -- as the Fifth and Eighth Amendment were -- the general rule is that the two provisions should be read in harmony. They do not necessarily alter or nullify each other, but courts should be reluctant to interpret the meaning of the two provisions in a way which creates a conflict.

As noted by Joe, the Fifth Amendment does recognize the constitutional validity of a death sentence at the time of the framing of the Bill of Rights. The canons of construction that provisions should be read in harmony to avoid conflicts is certainly an argument against a reading of the Eighth Amendment holding that the death penalty is unconstitutional. Whether the Fifth Amendment argument completely defeats an "evolving standard" of decency reading of the Eighth Amendment is different from saying that certain types of punishment are, by the plain meaning of the Constitution, recognized as exempt from such changes in judicial opinion.

Posted by: tmm | Jul 26, 2016 12:48:58 PM

"The Fifth Amendment contains prohibitions, not powers, and there is no reason to suppose that it somehow nullifies other constitutional prohibitions"

A prohibition is a power--it is the power to say no. Underlying the author's legal theory is a viewpoint that suggests certain constitutional provisions are advantaged over other constitutional provisions because of the way they are characterized. This is what allows him to view the 5A as a "distraction". But the 5A is no distraction because each constitutional provision is part of a whole and must be interpreted as part of that whole. So while I can concur that the 5A doesn't dictate the end result of an 8A analysis I believe the author is categorically wrong to suggest that the 5A shouldn't inform such deliberations.

Posted by: Daniel | Jul 26, 2016 1:28:41 PM

The whole thing is dumb--the Constitution specifically contemplates that the government is able to put people to death for certain crimes ("capital crimes), and we've had capital punishment since the founding of the Republic. If the Supreme Court purports to strike it down (or makes it damned near impossible to carry out), it would be an illegitimate act, and the states should simple execute anyway.

Bottom line, SCOTUS has said that the 8A allows it to bring its own judgment to bear on matters of punishment. Does anyone think that the 5A is going to be anything more than a speed bump?

Posted by: federalist | Jul 26, 2016 3:48:33 PM

"The canons of construction that provisions should be read in harmony to avoid conflicts is certainly an argument against a reading of the Eighth Amendment holding that the death penalty is unconstitutional."

First, "judicial opinion" is not the only way for a determination to be made that the death penalty is unconstitutional (as my link shows, something that even then was probably a view of a few people; more so as to only having it for a limited subset). Judicial review was in the beginning only a limited way for constitutional questions to be decided, something that is still somewhat true today. Judicial opinion, e.g., was to my understanding not the primary reason corporal punishments (at least outside of the school) was in time seen as illegitimate. It eventually only caught up with long time sentiment there.

Second, surely, the Fifth Amendment's text was written by people who figured "capital" punishments were legitimate. "Limb" also was not a figure of speech but also a clear recognition that physical punishments like whipping and ear cropping was readily acceptable. Some might disagree (especially if not involving sex offenders, who seem to get extra due care on this blog), but a majority think such punishments NOW are unconstitutional.

But, it does not "conflict" an express power (cf. if someone claims militia duty was a violation of religious liberty) if over time it is determined that the death penalty is "cruel or unusual" or that given modern guidelines of due process and equal protection, it violates other provisions. ANOTHER provision very well might later separately make it problematic. The 5A saying IF you carry out capital punishments you have to use grand juries etc. doesn't by itself (as compared to an express grant of power -- "Congress shall have the power to execute" -- the power here is at best implicit, perhaps under the Necessary and Proper Clause) truly conflict as much as two other sets of laws might.

The text and accepted practice provides a rebuttable presumption at best.

Posted by: Joe | Jul 26, 2016 4:34:03 PM

Wait a minute. It says "life or limb." So does that mean we can start chopping the hands off thieves without worrying about the 8th?

Posted by: Fat Bastard | Jul 26, 2016 4:57:31 PM

Joe, we get that the Court can talk in terms of due process yada yada yada to come to a determination that capital punishment is unconstitutional. The problem, which you unconvincingly attempt to address, is that the source document specifically contemplates that capital punishment will be available to the government. You try to make a lot of hay with the use of physical disfigurement as a punishment, but that punishment, whether allowed by the Constitution or not in 1789, has been abolished in every jurisdiction, and therefore, the comparison is specious. That we cannot go back to all manner of punishments in 1789 is a testament to the fact that times change, and the Constitution is not a license for the government to treat convicts as it did in 1789. That obvious fact is not a license for the Supreme Court to declare, in the face of actual executions, that this practice is somehow per se unconstitutional. Nor is it a license to junk the words of the Constitution because politicians in robes don't like the death penalty.

The application of old law to new times is as old as the statute books. And the rule is that the law is to be followed--the fact is that society has made a judgment, expressed through enactments, that disfigurement just isn't acceptable as a punishment, then it is "Cruel and Unusual" and thus barred. But we are so so so far away from capital punishment being close to that.

Let's think of something else---we all know that there is life tenure for judges--well, pretty soon, likely in the next 40 or so years, life spans will be double or even triple what they are--can the Constitution be revised sans amendment to remove judges when they hit 90? I'd say, honestly, that argument would have more force than the idea that 5 'rat judges can ban capital punishment.

Posted by: federalist | Jul 26, 2016 5:12:00 PM

"The problem, which you unconvincingly attempt to address, is that the source document specifically contemplates that capital punishment will be available to the government."

In 1791, it was so assumed, but the text also leave opening for change. Likewise, the Fugitive Slave Clause contemplates that slavery is constitutional but this isn't fixed for all time. It's even possible that changing understandings of due process etc. would in practice make slavery impractical. In the short term, however, a narrower rule was in place.

"You try to make a lot of hay with the use of physical disfigurement as a punishment."

It is only part of my argument, but your reply is rather telling. The "the source document [5A] specifically contemplates" that physical punishments would be used. They were common practice at the time and continued in some form into the 20th Century. In fact, even today, corporal punishment is allowed in schools though it is treated differently than corporal criminal punishments (Justice White, a conservative in criminal justice matters, dissented there).

But, you seem to grant that it's acceptable for the courts to hold it unconstitutional given it is truly "unusual" now -- each state bans it. When this tipping point arose (was 45 states enough?) is unclear. Anyway, the text of the 5A isn't enough. More has to be done to determine the question. It's possible, even though corporal punishments was contemplated that today they are unconstitutional by applying the 8A.

Doing so does not "junk the Constitution" etc. As to removing judges, Hamilton himself argued in Federalist that judges could be removed for insanity. Also, some argue "good behavior" provides a separate qualification, a means for removal beyond high crimes or misdemeanor. Perhaps, inability by age would violate it, at least as lower court judges can be removed at least for a time from active practice by the rules in place now. I guess it can be assumed 90 year olds are by definition likely to be mentally unfit. Age is not a suspect class. Case against d.p. seems strong. ymmv.

BTW, again, state and federal judges who have on state and federal grounds held the death penalty as unconstitutional (including in such a way that it might technically be open but barely so) have been both Democrats and Republicans. After he retired, Justice Powell said so. Blackmun was a Nixon appointee too. Stevens was a Ford appointee. etc. I in the past broke down the judges in Connecticut, showing one or more were Republicans too.

Posted by: Joe | Jul 26, 2016 5:56:00 PM

"even though corporal punishments was contemplated that today they are unconstitutional by applying the 8A."

The conclusion does not follow from the premise. Assuming that the DP is now cruel and unusual it doesn't follow that the proper constitutional solution is via "applying the 8A". I reject the idea that all constitutional provision are equal but some are more equal than others. What to do when two constitutional provisions come into conflict is a thorny question but clearly one possible answer is to amend the constitution directly. It seems to me that applying the 8A in this case is a cure worse than the disease because it creates a free floating amendment which the courts can use to stamp on all manner of legitimate government activity that the constitution contemplates.

Posted by: Daniel | Jul 26, 2016 7:29:58 PM

Wow. First off, Amendment XIII has abolished slavery, so the Constitution does not contemplate it. Second, the Constitution, in 1789 and today, contemplates that judges would interpret it (we have a common law system) so there is a judicial role in determining what is "Cruel and Unusual"--but that judicial role is very limited and is more akin to reporting what has already been determined by society. It does not include taking a punishment that has been used since the founding, is specifically contemplated in the document and has broad national support as a moral response to the horror of taking someone's life deliberately. That you think that the judicial power encompasses a "say so" means that you don't really support the supremacy of the law, but rather the supremacy of judges. Well, that is not our system. And, if the Supreme Court continues down its path, ultimately, it will make the wrong decision, and it will be at the mercy of the political branches.

Ginsburg crossed a line. Everyone knows it. Well, what if Trump decided that he was going to make a yuuuuuge issue out of it. What if he ran ads that tied Ginsburg to alien criminal predations traceable to Zavydas v. Davis? What if he ran ads that showed a child victim of an alien predator forced to be released by Zavydas v. Davis and said that Ginsburg had blood on her hands. What if the ads were really clever and well-done. "A little girl murdered--liberal Justices to blame. Common sense tells us that criminal aliens shouldn't be released back on the streets, but liberal justices invented that right and got this girl killed." Think the courts could withstand a popular political leader hitting them that hard for a long period of time? If I were president, one of my first acts would be to round up criminal aliens and simply put them on a plane to these countries that won't take them back. And if the courts tried to stop me, I'd take the case directly to the American people. And you know what, with the right prep work and picking the right criminal aliens (sex offenders/murderers)--PRUCOLs too, I'd win that fight.

Now I believe in our common law system (precedent etc) and a strong judiciary, but I don't believe in it at the expense of the democracy.

Posted by: federalist | Jul 27, 2016 11:31:51 AM

Daniel, my understanding is that corporal punishments are seen as cruel and unusual punishments, that would be primarily an 8th Amendment problem. That's why I singled it out there. I think the death penalty causes various constitutional problems, including equal protection related. In that respect, I think balancing various constitutional provisions would if anything work against it. Since the 5A "contemplates" corporal punishment, anyways, why your problem doesn't come up there too is unclear to me. Anyway, it can apply in any number of cases - the 1A was broad and can raise the same problem if misapplied.

As to federalist, first off, my hypo as to slavery assumed the 13A was not in place. And, antebellum lawyers and activists DID attempt to argue that the Constitution should be so interpreted, particularly when the federal government was involved. At best, they wanted slavery severely cabined, the provisions strictly applied. Others argued differently. They thought what was "contemplated" went beyond the literal words. The 5A sets forth limits on capital punishments; it does not by its own words "contemplate" for all time capital punishment would remain. Many thought slavery was a temporary evil and that for the time being certain things would be in place to regulate it. Capital punishment, by the mere words of the text, can be such a thing too.

The "very limited" role of judges is argument -- in practice, since the days of John Marshall, judges and others have in various ways supported a broader understanding. Obviously, there are loads of strands and degrees there too. The "say so" comment simplifies my argument. Judges take a range of factors into consideration but "broad national support" (quite mixed on this subject as seen by actual practice at any rate) is but one factor. This is seen by your own words -- you have various criteria, so that, e.g., something "contemplated" (corporal punishment) might very well now be illegitimate. So, even if your argument is correct (the d.p. as a whole is still constitutional) the article isn't wrong. You have to go beyond that to defend it.

The RBG paragraph seems fairly non-germane. I'll not comment on it.

Posted by: Joe | Jul 27, 2016 4:15:09 PM

ETA: Those who saw slavery as a temporary evil did not all think the way slavery would be abolished is by constitutional amendment, so "fine, try to pass a constitutional amendment banning the death penalty" is not a full rejoinder. Some argued slavery violated various existing constitutional protections and that in time enough people (including judges as applicable) would understand that. Provisions that dealt with slavery but did not expressly give broad power to enslave should not "contemplate" applying the other provisions (including an early substantive due process argument) narrowly.

Posted by: Joe | Jul 27, 2016 4:21:25 PM

Whatever, Joe. To simplify all this back-and-forth, yes, interpretation isn't a black and white thing, and our common-law system does give the judiciary some ability to deal with novel conditions or necessary implications of things (dormant commerce clause). But that nod to reality and the fact that the Constitution doesn't have the prolixity of a legal code is not a license for courts to do whatever they want. And judicial abolition of the death penalty is so well beyond any boundaries of interpretation--something which is painfully obvious because the Constitution expressly contemplates that there will be capital crimes. That itself should end the conversation--not because it definitively settles it, but because anyone with an ounce of sense should know that should be enough. But no, you guys want to make some niggling points about how theoretically this could be done, and that requires more explication. Bottom line--we are talking about a punishment that has wide support and has been used with some degree of frequency. To think that is the same thing as mutilation, which no one seriously thinks should be imposed as a criminal punishment, has ANY relevance to this issue is nuts on its face (law is supposed to deal with the real world, and that the constitution would likely ban mutilation is a truism). Rather, this is a mighty attempt to give the veneer of respectability to something that really should be unthinkable--that judges can simply decree that capital punishment is unconstitutional--in the face of the language, the respectability of capital punishment and societal support.

It's possible to think of things that are contemplated by the constitution, but are unconstitutional--but they are necessarily thin reeds. At the end of the day, as a purely practical matter, the camel has his nose in the tent. But you are arguing that because the nose is in the tent we have to tolerate the camel taking a shit in the bed.

But forget about all this---no one thinks that the Fifth Amendment is going to be a barrier to judges like Breyer.

AS for non-relevance--Joe, one never knows when the Supreme Court will go too far (as a political matter), but if it ever loses, it's a problem. And the more it does these sorts of things, if the wrong ox is gored, then we could lose judicial review.

Posted by: federalist | Jul 27, 2016 4:37:26 PM

@Joe writes, "so 'fine, try to pass a constitutional amendment banning the death penalty' is not a full rejoinder."

I never claimed it was a full rejoinder, I explicitly acknowledged that it was "one possible answer". For me the issue is not whether someone like Breyer can hold his judicial opinion; it's his vote he can do whatever he wants. For me the issue is whether holding such a position is a WISE use of power--I think it is not.

One reason I think it is not is because, as federalist has pointed out, that the further the court takes the country down the road of polyarchy the less legitimate it becomes. Ginsburg said that gay marriage would only requires a "small adjustment" on the part of the country but several small adjustments add up to one big one. Reducing the courts legitimacy doesn't promote domestic tranquility, it undermines it.

The second reason is the reason I already stated in my initial response: it creates significant problems with constitutional interpretation generally by treating amendments as isolated provisions rather than part of a seamless whole.

TL;DR. I don't think Breyer and Ginsburg are stupid, I think they are unwise.

Posted by: Daniel | Jul 28, 2016 10:13:00 AM

"Whatever." Okay. Have a nice day.

Daniel, I didn't think you "claimed" that & that to me gets past the specific issue at hand -- the point of the original article. My citation of corporal punishment (also somehow "contemplated" -- whatever that entails) addresses that. The argument that (unlike corporal punishment, which even federalist seems to grant is at least a reasonable judgment) the USSC shouldn't strike down d.p. writ large has some strength. It isn't what I was primarily trying to address.

What Breyer and Ginsburg did was start the conversation. This is how things start. Thus, in the early 1980s, two justices signed on to a dissent that homosexuality should be considered a matter of heightened scrutiny. They didn't think they had five votes. But, even two justices saying that was a big deal to start off. They have been on the Court since the 1990s. They are playing the long game. They know about the limits of judicial power.

I don't think the death penalty will be struck down by the USSC (as compared to individual state courts, which have begun to do so) any time soon myself. Still, the death penalty is in decline in recent years. The end very well might not be that far away. But, I also don't think that was the point of the article.

I don't think they are treating the amendments as "isolated provisions." As I noted, I think the case against the death penalty rests on various constitutional grounds. They do too. I cited the 8A in respect to corporal punishment since I think that is what people think matters the most there.

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