Abstract
The death penalty poses a legal as well as a moral question. Thus, many lawyers in the United States have tried to get the Supreme Court to declare capital punishment unconstitutional mainly on the basis of the Eighth Amendment, which prohibits “cruel and unusual punishment,” or of the Fourteenth, which requires “the equal protection of the laws” for all the inhabitants of the United States. Let us consider the constitutional question then.
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Notes
William O. Douglas, The Court Years, 1937–75 (New York: Random House, 1980), p.
William O. Douglas, The Court Years, 1937–75 ( New York: Random House, 1980 ), p. 9.
J Wm. and Mary (1689), 2d Sess., c. 2.
Sir Leon Radzinowicz, A History of English Criminal Law and Its Administration from 1750 ( London: Stevens and Sons, 1948 ), pp. 518–520.
Anthony F. Granucci, “Nor Cruel and Unusual Punishments Inflicted:’ The Original Meaning,” California Law Review 57 (October 1969), pp. 839–865.
Furman v. Georgia (1971), 408 U.S. 238, at 257–306.
Joseph Story, On the Constitution ( Boston: Hilliard and Gary, 1833 ), p. 710.
Weems v. United States (1909), 217 U.S. 349.
Trop v. Dulles (1957), 356 U.S. 86.
Sir James Fitzjames Stephen, A History of the Criminal Law of England vol. 3 (London: Macmillan, 1883), p. 383. From the last sentence of this excerpt I infer a retributivism of the most rigorous kind; the really depraved must be exterminated. After all, it was Stephen who minted the curious comparison “the criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite.” A General View of the Criminal Law of England ( London: Macmillan, 1863 ), p. 99.
Michael J. Hindelang, Michael R. Gottfredson, and Timothy Flanagan, eds., Source-book of Criminal Justice Statistics-1980, U.S. Department of Justice, Bureau of Justice Statistics ( Washington, D.C.: U.S. Government Printing Office, 1981 ), pp. 200–201.
Michael J. Hindelang, Michael R. Gottfredson, and Timothy Flanagan, eds., Source-book of Criminal Justice Statistics-1980,U.S. Department of Justice, Bureau of Justice Statistics (Washington, D.C.: U.S. Government Printing Office, 1981), , p. 202.
Michael J. Hindelang, Michael R. Gottfredson, and Timothy Flanagan, eds., Source-book of Criminal Justice Statistics-1980,U.S. Department of Justice, Bureau of Justice Statistics (Washington, D.C.: U.S. Government Printing Office, 1981), , p. 202. For convenience I have omitted the percentages in the original table that related to the crimes of rape, airplane hijacking, and treason, all of which were substantially lower than the percentages favoring capital punishment for murder.
Hurtado v. California (1883), 110 U.S. 516, at 529.
Weems v. United States (1909), 217 U.S. 349, at 373.
Furman v. Georgia, at 403.
Hugo Adam Bedau, The Death Penalty in America, 3rd ed. ( New York and Oxford: Oxford University Press, 1982 ), p. 63.
United States Department of Justice, the Federal Bureau of Investigation, Uniform Crime Reports, 1980 (Washington, D.C.: U.S. Government Printing Office, 1981), p. 182. All the data in this section are drawn from this table.
Coker v. Georgia (1977), 433 U.S. 485.
Alexis de Tocqueville, Democracy in America, vol. 1, trans. Henry. Reeve, Francis Bowen, and Phillips Bradley ( New York: Knopf, 1945 ), p. 103.
See Furman v. Georgia (1972), 408 U.S. 238.
See Paul Hollander, The Political Pilgrims (New York: Oxford University Press, 1981). tCorruptio optimi pessima as Seneca put it: “The corruption of the best is worst.”
My opponent’s citation of John Stuart Mill’s advocacy of capital punishment calls for a discussion of that great man’s views on this topic. They will be found in a speech delivered in Parliament in 1868 in which the abolition of capital punishment was debated; the abolitionist lost. The full exchange is found in Gertrude Ezorsky’s Philosophical Perspectives on Punishment ( Albany: State University of New York Press, 1972 ), pp. 271–278.
Surely Mill was not at his best in this debate—even though his side won decisively. For a full but sanitized account of the various methods of execution now considered acceptable, see the Report of the Royal Commission on Capital Punishment, 1949–1953 (London: Her Majesty’s Stationery Office, Reprinted 1973, Cmd. 8932), pp. 246–273. After a detailed review of experience in England and other countries, the Royal Commission concluded that hanging is the speediest and most humane method of killing murderers. The three other prevailing alternatives—electrocution, gas, and shooting—were rejected for reasons that seem convincing. Lethal injections were considered. Although the painless aspect of the process held some appeal, the medical objections were considered insuperable.
For a skeptical commentary on the commission’s account of hanging, see Arthur Koestler, Reflections on Hanging (London: Victor Gollancz, 1956), pp. 9–10, 139–145.
The Royal Commission took special note of the good behavior of condemned men in England, who spared onlookers the experience of “distressing and unseemly scenes of panic and resistance. Those of our witnesses who have the duty of attending executions gave striking and unanimous testimony to the stoicism with which condemned men—and women—almost always face death on the scaffold.” Ibid., pp. 260–261.
Which is neither here nor there. A legal sense of “natural” (as in natural rights) is possible, but here too Professor Conrad is out of luck. Practically all traditional legal theorists, including the framers of our Constitution, thought of the death penalty as consistent with natural rights and laws.
Taken from John Julius Norwich, A History of Venice ( New York: Alfred A. Knopf, 1982 ), pp. 227–228.
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© 1983 Ernest van den Haag and John P. Conrad
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van den Haag, E., Conrad, J.P. (1983). The Constitutional Question. In: The Death Penalty. Springer, Boston, MA. https://doi.org/10.1007/978-1-4899-2787-3_9
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