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Death Penalty Jurisprudence By Tallying State Legislative Enactments: Harmonizing The Eighth And Tenth Amendments, Akram Faizer, Charles E. Maclean
Death Penalty Jurisprudence By Tallying State Legislative Enactments: Harmonizing The Eighth And Tenth Amendments, Akram Faizer, Charles E. Maclean
Akram Faizer
Whenever most legislatures in death penalty states have rejected a particular application of capital punishment, the Supreme Court has held that no state may retain that application, reasoning that any death penalty approach rejected by the majority of states is, perforce, unconstitutionally “cruel and unusual” under the Eighth Amendment. Although some laud these decisions, they ignore the States’ Tenth Amendment rights to govern themselves within broad constitutional parameters. Rather than defer to opinion polls or tallying state legislative enactments, the Court should engage in true constitutional analysis, forbidding cruel and unusual punishments, but simultaneously honoring states’ rights to govern themselves.