I address two questions in this chapter: Is capital punishment unconstitutional? Should the Supreme Court rule that capital punishment is unconstitutional? The questions should not be confused: Although it doesn't make sense to give an affirmative answer to the latter question unless one also gives an affirmative answer to the former question, it can make perfect sense, as I explain in this chapter, to give an affirmative answer to the former question but a negative answer to the latter question.

Constitutional Rights

Originalism, yes; Scalia, no

The Eighth Amendment to the Constitution, which limits state as well as federal power, provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Is capital punishment “cruel and unusual” within the meaning of the Eighth Amendment – and therefore unconstitutional?

The Preamble to the Constitution declares, in part, that “We the People of the United States … do ordain and establish this Constitution for the United States of America.” The text of the Constitution is We the People's text; it is their text, their written communication of various imperatives. To whom does the Preamble's “We the People” refer? Neither to those who wrote (drafted) the constitutional text (or some part of it) nor even to those elected representatives in the states who voted to ratify the text. Rather, “We the People” refers to the citizens on whose behalf the text was written and ratified. The constitutional text is, as the Preamble indicates, their text.