Over in another thread, Wendell Wagner and I have gotten into a bit of a debate about capital punishment. Specifically, whether or not it would be reasonable for the Supreme Court to rule that it is impermissible in all cases, based solely on th language in the Constitution itself. Since the discussion is a hijack of that thread, and definitely a debate rather than a general question, I thought I’d kick it over here and see what happened when a few more people got a crack at it.
Here’s the language that seems relevant to me, the first clause of the Fifth Amendment to the Constitution, which itself obviously modified the original document, which contained no such language:
Seems pretty clear to me : the Constitution as originally written contained no limitation on the power of the courts (or the legislative branch) to impose capital punishment; the language above says, specifically, “it is okay only in these circumstances”, which certainly means that it’s okay in those circumstances. However, I’d certainly like to hear, not only from Wendell Wagner, but from anyone with an opinion on the passage in question.
One final note: I personally, am opposed to capital punishment in almost all cases, though I do make an exception for military trials during the conduct of a declared war, as well as for treason. I would like nothing more than to see such barbarism go away as soon as possible; I simply don’t think that an arbitrary decision by an activist court is a legitimate way to go about accomplishing this; I also think that, legitimate or not, such a resolution of the issue would do more harm than good to the public’s perception of judicial legitimacy. However, I’ve started this thread for a very narrow purpose, and would appreciate it if we all refrained from hijacks about the rightness or wrongness of the death penalty itself.