Contradictory Constitution?

In this article: Are the Eighth and Fifth Amendments in conflict? What happens if they are? And what to make of implied repeal with concurrent Amendments?

This week should go down in history among the best weeks for leftists. On the racial front, Confederate flags are coming down — albeit 150 years late — and the country seems ready to acknowledge black oppression as the historical residue of the slavery economy. 

We've even had progress ushered in by the Roberts Court. They saved the universal healthcare movement from being killed in its infancy by upholding the ACA, and they finally recognized that equal protection entails marriage equality. Although, nothing has been done to preempt the nullification issue that I have covered previously. 

But make no mistake; Ginsburg has not orchestrated a judicial coup d'etat. Another decision handed down by the Court on Monday comes from the case of Gossip v. Gross, in which the Court decided that Oklahoma's lethal injection system (the very same that spawned the grueling death by heart attack of one prisoner last year) does not violate the Eighth Amendment.

But what is interesting, and what I write about today, does not concern the Gossip ruling. Rather, I wish to take note of interesting activities in the dissenting and concurrence opinions, and their logical consequences.

In their dissent, Breyer and Ginsburg make the case that capital punishment is categorically cruel and unusual. They take a decidedly Brandeisian approach, relying on what Scalia called "a ream of the most recent abolitionist studies" to demonstrate racial bias, irrelevance of the original crime, post-sentencing exoneration, and so forth.

More interestingly, at least to me, is that Scalia took it upon himself to write a concurrence exclusively devoted to rebutting Breyer and Ginsburg. 

Although I am opposed to any use of execution, and I agree with the abolitionist opinion, Scalia also makes a seemingly irrefutable point directly in contradiction of the dissent. I find myself agreeing with both Breyer and Scalia, and this has led me to believe that the Constitution may have a very peculiar quality — a self-imposed expiration mechanism of sorts.

What I mean to say is that capital punishment has always been directly constitutional, but has also become inherently unconstitutional.

First, I must admit that Scalia has actually changed my opinion about the constitutionality of execution, doing so with an argument I've never heard from the pro-death crowd. He writes:

Mind you, not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible. The reason is obvious: It is impossible to hold unconstitutional that which the Constitution explicitly contemplates. 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,” and that no person shall be “deprived of life . . . without due process of law.” [Emphasis added by Scalia]

As far as I can see, this cannot be argued with. If something were to be unconstitutional, the constitution would not provide the proper procedure for its existence. For this same reason, it could not be tenably held that the slave trade was unconstitutional before the 13th Amendment.

Nevertheless, execution is definitely cruel and unusual under the Eighth Amendment.

(I will note now that the core argument of this article is irrelevant to the actual Eighth Amendment status of execution. If you reject abolitionist arguments, skip to "This is where the contradiction really picks up.")

To briefly summarize the abolitionist position, the cruelty can be seen in two ways. One, the perfectly consistent historical pattern is that society shudders at the thought of every single previous method up until whatever method happens to be used. 

Beheading? Terrible; what were they thinking? 
Hanging? Attrocious; what were they thinking?
Gas chambers? Hideous; what were they they thinking?
Electrocution? Horendous; what were they thinking?
Lethal injection? Humane.

Clearly, looking from a viewpoint of historical analysis, we simply find the killing methods of the past to be cruel. 

The second way to understand the cruelty of execution is to recognize the diffusion of guilt that we use whenever we can. Only half of firing squad shooters get real bullets. Why? Because we don't want the guilt of committing such a cruel act. Some members of lethal injection teams are given dumby IV tubes. Why? Because we don't want the guilt of committing such a cruel act.

And for the unusual qualities, I accord to Justice Breyer's dissent, which shows that execution truly is as arbitrary "as being struck by lightning."

Returning to the contradiction, Scalia's point rests on the fact that the framers did not find capital punishment to be cruel or unusual. Luckily for his originalist  school of thought, their stance translated into indirect endorsement of the institution.

But this is not the death knell — so to speak — for Breyer and Ginsburg. For, as Justice Stevens wrote in Atkins v. Virginia (2002):

A claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the ‘Bloody Assizes’ or when the Bill of Rights was adopted, but rather by those that currently prevail. 

Simply put, the living document doctrine holds true with regards to the Eighth Amendment. 

This is where the contradiction really picks up. Even if society is not ready, or never will be ready, to accept the abolitionist case of cruelty and unusualness, the fact remains that society could. That is what matters. 

Imagine a hypothetical America where we have concluded that state-sanctioned homicide is definitely cruel. In this America, execution would violate the Eighth Amendment, and therefore be unconstitutional. But the Fifth Amendment would still provide for capital punishment. Thus, execution would be both unconstitutional and constitutional at the same time. The Fifth Amendment would be in conflict with the Eighth Amendment.

Should this ever happen, and should the Court consider the question if it does, what would be the correct decision?

Under the doctrine of implied repeal, the most recent provision of the constitution would take precedent when in conflict. This is why voting rights are extended to 18 year olds in spite of the 14th and 15th Amendment provisions specifying "21 years of age." The 26th Amendment takes precedent because it is more recent.

But the Fifth and Eighth Amendments were adopted at exactly the same time: December 15, 1791.

This disables use of implied repeal in a strict sense. Both Amendments were textually ratified concurrently. What remains is our understanding of them. 

Perhaps our updated understanding of the Eighth Amendment would cancel the Fifth Amendment endorsement of execution. I don't know. But it would seem that the Constitution contains a programming glitch of sorts.