The Fifth Amendment of the US Constitution anticipates the
existence of capital punishment. Justice Scalia declared that it follows that
capital punishment is constitutional. He
was wrong.
Justice Scalia
"The Fifth Amendment provides that '[n]o person shall be
held to answer for a capital . . . crime, unless on a presentment or indictment
of a Grand Jury, . . . nor be deprived of life . . . without due process of
law.' This clearly permits the death penalty to be imposed, and
establishes beyond doubt that the death penalty is not one of the 'cruel
and unusual punishments' prohibited by the Eighth Amendment." Callins v. Collins, 510 US 1141 (1994)
(concurring in denial of cert.)
Scalia apparently thought that an argument from the text of
the Fifth Amendment to the constitutionality of capital punishment was so
obvious that it need not even be sketched. What was that argument?
Without trying to undertake an exercise in Scalia exegesis,
I want to start with what seems to me the best hope of showing the implication
of which he was so confident – an argument that the Fifth Amendment has the
force of a partial definition of “cruel and unusual punishment.” A second best
hope seeks to use the Fifth Amendment to establish the “author meaning”
semantics of the Eighth Amendment. An extension of this argument goes to
meaning in the general language community. Finally, I take up the least
plausible, but perhaps most popular argument, that the Fifth Amendment shows
that our Founding Fathers wanted capital punishment to be constitutional – and
their will be done!
The Fifth Amendment as a partial definition of “cruel and unusual”
Vague or ambiguous provisions in a legal document may
properly be interpreted in terms of other parts of the same document if those
other parts shed light. When a term is
expressly defined, that definition governs throughout the document (absent some
egregiously inconsistent drafting), and it controls even if it conflicts with
the ordinary meaning of the term. For example, in New York a prosecutor can
charge use of a deadly weapon for a punch thrown with “plastic knuckles” or for
a lunge with a switchblade, but not for a slash with a sword. NYPL 10.12.
When a second passage in a document that is put forward to
interpret a vague first passage is not a definition, it yet may show so clearly
how the first is to be read on a particular point as to constitute, in effect, a
partial definition. Although not put in
these terms, this is what is often claimed in application to “cruel and
unusual” for the references to “capital . . . crime” in the Grand Jury Clause
and “of life” in the Due Process Clause
Provisions having the effect of partial definitions can
always be so formulated as logically to imply the contested-for reading of the
vague provision, just as the “plastic knuckle” definition implies that the
assault with a deadly weapon statute comprehends a punch with that
instrumentality.
The Fifth Amendment propositions do not, however, singly or
together, logically imply the constitutionality of capital punishment. If you
remember your college logic course, recall that universally quantified if-then
statements never imply an existentially quantified statement. (More comfortable
in Aristotelian tradition? No number of A premises can give you an I
conclusion.) Any charged capital case
must be afforded due process, but that does not establish that there is a
charged capital case, let alone one that is not cruel and unusual.
(Technical: You might think bringing in not actual, but
possible, instances of capital punishment would reveal the implication. There
are modal logics that will give us “there exists a possible capital punishment
. . .”. The obvious logics that do this, however, are so strong (implausibly strong) as to give
us possible capital punishment that is
not cruel and unusual without having to draw upon the Fifth Amendment
propositions at all. Alternatively, arguments in weaker modal systems really do
use the Fifth Amendment to get to the desired conclusion, but only with the
help of auxiliary premises that are the key steps of quite separate arguments.
An example is the meaning argument to be taken up next. )
Recall that in saying there is no implication from the Fifth
Amendment and that it does not function like a partial definition I am not for
a moment denying that “capital . . . crime” and “of life” would not be there
unless those responsible thought some instances of capital punishment ought to
be constitutionally permissible. Arguments specifically focusing on this
“intent” are, as promised, next.
We do not need implication or what amounts to partial
definition to construe one provision of a document in terms of others if the
document as a whole reflects purposes that would be frustrated if the provision
in question were read one way rather than another.
The capital punishment language of the Fifth Amendment and
“cruel and unusual punishment” are not, however, intermeshing clogs of a single
constitutional device of broad application.
Their relation affects at most the capital punishment question and no
other features of the structure of the republic or its relations to civil
society. The Fifth and Eighth Amendments, of course, both have more than 99% of
their application to non-capital cases.
That the Fifth Amendment does not force Scalia’s reading of
“cruel and unusual,” will become obvious if we turn our attention from the authors
of the amendments to the ratifiers, whose votes turned the provisions into
constitutional law. Suppose there were a
member of a ratifying convention, perhaps Pennsylvania’s, who was adamantly
opposed to capital punishment. He believed it ought to be constitutionally
prohibited. Although he would have preferred a prohibition on “capital or other
cruel and unusual punishment,” he would vote for what became the 8th
Amendment. He is against all
cruel punishments, and would hope, and perhaps expect, that society in general
will come with time to share his belief that capital punishment is cruel.
A friend asks if he will vote against what became the 5th
Amendment, pointing out that its references to “capital . . .crimes” and “life”
could be used as an argument that some capital punishment must be
constitutional. He responds:
In addition to favoring the other clauses of that proposed
amendment, I support both the indictment requirement and due process in every
case. This applies all the more for capital cases for the period, however short
or long, before it is generally understood that capital punishment is
constitutionally cruel. No one thinks that the Fifth Amendment makes capital
punishment constitutionally required, and I will be happy to set right anyone who
claims that my vote for the requirement of indictment and due process in
capital cases implies my support for the proposition that executions are anything
but barbarously and unconstitutionally cruel.
Probably few of the ratifiers of the 5th and 8th
Amendments were like our hypothetical Pennsylvanian. Of the percentage who
thought capital punishment would violate the punishment clause we will never
know. However many there were, it is clear that they could vote to ratify both
the amendments without the slightest inconsistency with their belief that
capital punishment is constitutionally cruel and unusual. They would know that
the framers of the amendments had a contrary view of what is cruel and unusual,
but that leads to a different argument.
Framers’ meaning
The phrase “framers of the Constitution” is used promiscuously. Who should get that title for the provisions at issue here? For the indictment and due process clauses, a copyright sort of focus on creative authorship should probably give Madison the honor. For the punishment clause, the same attitude would lead us back to some subset of the members of the British Parliament who produced the English Bill of Rights of 1689. (Eternal condemnation is deserved for whichever of them thought conjoining “unusual” to “cruel” was clarifying.)
The British Parliamentarians of 1689 were great fans of
capital punishment, there being roughly half a hundred capital offenses in
Britain as of that date (a number which later quadrupled.) This has been cited
to show that “cruel and unusual” cannot possibly be interpreted to exclude
capital punishment. If it were really to follow this line of reasoning, it
would also establish the constitutional non-cruelty of executing pick pockets
and chicken thieves. For this reason, and because 17th century
Englishmen had no direct role in adoption of the US Constitution, we should
drop the drafters of the English Bill from our “framer” candidates.
Better, if you think author intentions or meanings are key
for constitutional interpretation, is to take “framers” to embrace anyone who
did or could have had a hand in deciding just what language should be sent out
for ratification. This would include all the members of the House and Senate
who were present for the debates on the amendments or voted upon them. All
these men, about 90 in number, had a power of authorship, however little most
of them actively exercised it.
Now it is necessary to go a little into the semantics of
meaning. Imagine that we were to give all the members of both houses of the
First Congress a questionnaire with an exhaustive set of possible punishments,
including such factors as the offense, the offender’s criminal history, and
whatever social categories of race, condition of servitude, gender, wealth, and
community standing might have been relevant for any of those members. For each
item they are to check off “Cruel and unusual” or “Not cruel and unusual.” This
would, of course, be practically impossible for reasons beyond the mere current
unavailability of the experimental subjects.
We amalgamate the answers on all the questionnaires and plot
the result on an n + 1 dimensional graph, where n is the number of those
factors we varied in constructing each question of the questionnaires. The +1 dimension is for number of affirmative
responses. A punishment description, say, 100 lashes for failure to pay for a
cup of tea by a well-to-do white woman, would be at 90 on this scale (all respondents
mark “Cruel and unusual”), while a week in jail for mass murder should be 0. (Put aside that some
respondents would balk at answering this question, objecting to the very idea of
short incarceration for a horrendous crime. The experimenters would patiently
explain that by marking “Not cruel” the subject would only be agreeing that,
despite its other faults, the punishment was not cruel. They would not be
endorsing the short jail time for murder.)
This would give us a sort of semantic map of “cruel and
unusual punishment” for the framer population. It would have an enormous amount
of detail that would be interesting for other purposes, but would not bear upon
our capital punishment concern. What is important for us, and what I think we
can be quite confident about, is that there would be a substantial number of
capital punishment points clustering close to 0 on the “cruel and unusual”
scale. (It would not be at 0 because of New Hampshire’s Representative Livermore
who thought capital punishment as well as whipping were cruel, although
necessary, and voted against the punishment clause. Interestingly no one rose to contest his contention that capital punishment and whipping were cruel.)
This map, in addition to other semantic applications, would
illustrate graphically why House and Senate were comfortable with the capital
punishment references in the Fifth Amendment. As these gentlemen were, I
suppose, not a terribly biased sample of fluent speakers of their time, this is
also fairly good evidence of how other speakers of American English in 1789 would
respond to our questions about “cruel” punishments. (I hesitate to say that it is
any evidence to the general speech usage
of the exact phrase “cruel and unusual”
because that phrase was probably never found in ordinary speech except in
conversations having to do with its use in constitutional documents. “Cruel,”
however, has always done all the real work.)
If you are uninterested in the other sorts of semantic
illumination provided by n-dimensional maps, we can get the same conclusion for
our particular concern by simply asking the members to list those offenses for
which (at least with some combination of criminal history and social factors)
could be punished capitally without being cruel. Because there would be at least some items on the
great majority of the 90 lists, it can be argued that one dimension of meaning
of “cruel and unusual punishment” for the framers, and probably for the general
population, did not embrace all instances of capital punishment.
To look to this semantic map or list alone, however, would
over-simplify the meaning of “cruel and unusual.” It would be good at predicting
the way the framers would talk and vote, but it would not reflect the thought
process by which they or we arrive at our conclusions about what is cruel. “Cruel”
has more to its semantics than what the language community would apply it to at
a given moment in time. In answering “is x cruel?” an English speaker, in 1789
as well as now, would think something like “is the physical or mental suffering
this will cause undue, excessive, or horrible?”
There is an essentially normative component to every judgment of what is
cruel.
The semantics of color words does not have this complexity.
A “what would you call” semantic map of “blue” pretty much tells the whole
story. If Madison and the Pennsylvanian disagree about whether the East River
on a particular morning was blue or green, it would only be a dispute about the
application of those words to color instances. Their dispute whether capital
punishment was cruel would be dominated by moral-political considerations. A
semantic theory on which “yes-no” maps or lists would try to handle the second
dispute would be utterly inadequate
If the Pennsylvanian were to have convinced Madison, the
latter would not have said, “the meaning of ‘cruel and unusual’ has changed.” He
might say, “I would now call more things cruel than I did before, in particular
capital punishment. That is because I now see that capital punishment really is
cruel.”
To turn from the theory to some practical implications,
consider what the shape of constitutional punishment would be if it were to be
governed by the map or lists of what the framers or the language community as a
whole would have regarded as “cruel and unusual” in 1789. Capital punishment
would be OK. In fact, it would be OK for much more than treason and murder:
rape (although probably not rape of a black woman by a white man), some
robberies, some burglaries, horse theft and some other large thefts. Whipping
would be constitutional for a wide range of offenses, and banishment for some.
Long term incarceration, however, probably would be considered cruel. It was
certainly unusual in colonial America.
Were we to follow the list-of-1789 approach for “Grand Jury”
we would certainly find only collections of men on the lists, overwhelmingly
white, property owning men. For “Jury”
(Art III, 6th & 7th
Amendments). We would get “12 men,” again of the same social strata.
What the framers meant in the, list-of-1789 sense of “meant,”
by “cruel and unusual” was compatible with capital punishment, and by “jury”
and “grand jury” was compatible with keeping women off the panels. What they
(and the Constitution) meant, on a more adequate semantics, would prohibit
punishments that really are cruel and jury selections that conflict with the
root idea of a jury in its role in the judicial process and in the community.
So the sense in which what the framers meant by “cruel and unusual” clearly permitted capital punishment,
as is shown by the Fifth Amendment, is historically interesting, but what
should control is the deeper sense in which the meaning was a matter of what
causes excessive or undue or horrible suffering.
It is an easy to extend my argument to 1791 and the ratifiers
or the general language community. What is important for constitutional
interpretation is “meaning” that looks inside the concept of cruelty at that
time, not the lists of cruel punishments people of that time would have made.
The Constitution does not prohibit what this or that set of
men 1789 or 1791 took to be cruel. It prohibits what is cruel. That is the
text.
What the Founding Fathers wanted
The final argument that is sometimes used to support a
Scalia-type position on capital punishment is cruder than both the preceding
arguments. Its key premises are that the members of the First Congress, including
the non-Conventioneers among them, were Founding Fathers, and that the vision
of the Founding Fathers should control.
Granted, many of the Founding Fathers, however you divide
them out, were men of some wisdom and foresight to whom we owe many of the
successes of the republic. The capital punishment references of the Fifth
Amendment are pretty good evidence that most of them wanted capital punishment
to be constitutional. Interpreters, the argument concludes, have no business
second guessing them.
I wish that there were no need even to propound, much less
to belabor, the proposition that Founding Father policy preferences are no more
important than anyone else’s except as those preferences are set out in the constitutional
text ratified. The Constitution does at a couple of points entrench what were
expected to be elites: the Electoral College and the Senate, especially in the
latter’s advice and consent role. Founding paternity, however, gets no special
status. The Constitution could have created a life tenure committee of founders
to serve as special advisers on constitutional interpretation to Congress, the
executive, and the courts. But it didn’t.
Academics sometimes, and polemicists and editorialists
almost always, treat framer quotes as if they were holy writ. It is important
to recall, however, that, in addition to their good ideas, the framers also had
some terrible ideas of which the slavery complex was the worst. We are still
plagued by some of their other bad ideas. (For more on the secular apotheosis of the
founders, see https://lawrencecrocker.blogspot.com/2019/02/is-non-amendable-constitutional.html#more; “Authority of the Founders” section.)
Suppose a hitherto unknown diary of Madison’s turned up with
the entry, “It would be cruel to whip a white woman or a gentleman for theft,
but not a labourer, and an African may, I conceive, be given even a hundred
lashes for that same offense without cruelty.”
Now Madison didn’t write anything like this, but suppose he
had. Should his wisdom and probity or his special connection to the 8th Amendment lead a senator to consult such a
diary entry in drafting criminal legislation or a judge in passing on its
constitutionality?
Most quotations from framers, of course, are a good deal more
palatable than my imagined one. None of the framers were free from egregious
prejudices, however. Their prejudices may be explicable in terms of their place
in history, but they are sufficient to undermine the “civic saint” rationale
for using their expressions of policy preferences as input for constitutional
construction.
Conclusion
Justice Scalia is not alone in thinking that the Fifth
Amendment entails that some instances of capital punishment are constitutional.
So far as I can see, however, there are no good arguments to that effect.
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