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Death Is Different, But Not Really, Corinna Barrett Lain
Death Is Different, But Not Really, Corinna Barrett Lain
Corinna Lain
The Supreme Court’s landmark death penalty rulings over the past several years have renewed scholarly criticism of the Eighth Amendment’s “evolving standards of decency” doctrine, which invalidates a punishment when a national consensus has formed against it. Critics claim that it makes no sense for constitutional protection to follow majoritarian sentiment—particularly in the capital context, where death penalty politics make “tyranny of the majority” more than a theoretical concern. Defenders contend that while majoritarian constitutional protection may be problematic in general, Eighth Amendment protection is different; the text of the “cruel and unusual punishments” clause invites, if not requires, protection …
The Unexceptionalism Of Evolving Standards, Corinna Barrett Lain
The Unexceptionalism Of Evolving Standards, Corinna Barrett Lain
Corinna Lain
Conventional wisdom is that outside the Eighth Amendment context, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the “evolving standards of decency” doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely—and explicitly—bases constitutional protection on whether a majority of states agree with it. This Article examines the Supreme Court’s reliance on the majority position of the states to identify constitutional norms, then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon. While the past few …