Dissenting in today’s death penalty case, Justice Stephen Breyer made a surprising argument against the death penalty. In 41 pages, Breyer makes a very good and convincing argument that the death penalty is unfair, discriminatory, outdated, and a complete mess. He calls attention to the racial disparities in sentencing, the long waits until execution, and the lack of evidence of any deterrent effect. The death penalty, he concludes, is “highly likely” to be unconstitutional under the Eighth Amendment’s ban of “cruel and unusual punishment.”

Justice Antonin Scalia only needed 7 pages to completely eviscerate that argument.

The problem, as Scalia points out in his concurring opinion, is that the Constitution very obviously permits the death penalty. Like, extremely obviously. Take the text of the Fifth and Fourteenth Amendments:

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 offence 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. … All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

What’s at play here is the legal principle that the exception proves the rule. If a law explicitly says that you can’t sell alcohol on Sunday, it implicitly says that selling alcohol is perfectly legal on Monday through Saturday. Any prosecutor who went after a bar for weekday sales would be laughed out of court, probably with severe consequences for his career.

In the above amendments, the drafters explicitly say that a person’s life cannot be taken unless they are indicted by a grand jury and provided due process of the law by the state. Again, the clear implication is that the death penalty is perfectly constitutional when those conditions are met. That’s why the same Founders who voted on the Eighth Amendment executed people on a daily basis.

Many opponents of the death penalty accept this argument. “[W]e should not pretend the Constitution is silent or ambivalent about the basic existence of the practice,” Reason’s Damon Root writes. “Like it or not, the death penalty is constitutional.”

How does Breyer address the single most prevalent and most obvious argument against the blanket unconstitutionality of the death penalty, which served as the centerpiece of the Supreme Court’s 1976 ruling upholding the death penalty? He doesn’t. At all. Why couldn’t his 41-page dissent add a few pages? Because there are no intellectually honest arguments against it.

Instead, two hundred years of legal scholarship, public opinion, Supreme Court precedent, and common sense must bend to his personal views on the death penalty. But rather than blush at this shockingly undemocratic view, Breyer argues in his dissent that the opinions of the people and elected officials must bow to the mental superiority of judges:

I recognize a strong counterargument that favors constitutionality. We are a court. Why should we not leave the matter up to the people acting democratically through legislatures? The Constitution foresees a country that will make most important decisions democratically. Most nations that have abandoned the death penalty have done so through legislation, not judicial decision… I recognize that in 1972 this Court, in a sense, turned to Congress and the state legislatures in its search for standards that would increase the fairness and reliability of imposing a death penalty. The legislatures responded. But, in the last four decades, considerable evidence has accumulated that those responses have not worked. Thus we are left with a judicial responsibility.

Democracy is for plebeians, apparently. Leave up to the judges to take the burdensome “responsibility” of dictating to 300 million Americans what they are and are not allowed to do. Scalia took heat from liberals for saying in his opinion that Breyer was “rejecting the Enlightenment,” but how else should one describe Breyer’s authoritarian sentiment?

There’s a reason that liberal Justices Sonia “Wise Latina” Sotomayor and Elena Kagan, usually eager adherents to the Illiberal=Unconstitutional theory of constitutional interpretation, refused to join Breyer’s dissent. Arguments that the death penalty is unconstitutional are the most extreme and untenable examples of the “Living Constitution” theory; that the Constitution ought to be interpreted in line with modern sensibilities, Founders’ intentions be damned. No one believes that judges should declare what the Constitution explicitly allows for unconstitutional, solely because they believe popular opinion, every other branch of government, and both political parties are wrong on the issue.

No one, it appears, except for Justice Stephen Breyer.

[Image via screenshot]

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