The Living Constitution as an impediment to legislative abolition of the death penalty

Suppose one thinks that the way the Living Constitution works these days involves some judicial leading-from-behind emboldened by shifts in public opinion that have themselves been partially prompted by bolder, earlier attempts by other judges to shift public opinion. And further suppose that one supports the policy outcome pushed by the judicial norm entrepreneurs, but opposes their legal reasoning and the very idea of a Living Constitution. 

This is something of the frame of mind I bring to abolition of the death penalty.

I advocate legislative abolition of the death penalty at the state level. As a matter of political prudence, this seems more likely to occur if the death penalty at the federal level remains available. And while abolition at the federal level also would be desirable, a gradual transition appears more feasible and more likely to prove enduring.

Whether my assessment of the political landscape is correct (it often isn't, after all), legislative abolition of the death penalty is more likely to occur if public opinion supporting abolition grows. So I'd like to see that happen.

But we've learned that Justices of the Supreme Court also have been known to take shifts in public opinion as permission to implement their policy preferences through appeal to the Living Constitution. I don't like to see that happen. It is contrary to the bedrock idea of fixed, authoritative, superior law that underwrites judicial enforcement of the Constitution in the first instance.

So the shift in public opinion I'd like to see regarding the death penalty is not as simple as "death penalty, bad." It's more like "we (the people ... of Virginia, of Pennsylvania, of Indiana, and so on) should get rid of our death penalty."

The headline of a recent Bloomberg News article captures some of what underlies my uneasiness: "Death for the Death Penalty? Justice Scalia Predicts It's Coming."

As an aside, the headline is a little misleading. Justice Scalia said he "wouldn't be surprised" if his colleagues were to find the death penalty unconstitutional. That is not a prediction that Justice Scalia's colleagues will do so, just a statement that he would not be surprised if they did. And there may not be much that some of his colleagues would do with the Constitution that would surprise Justice Scalia, anyway. With respect to the parallel to same-sex marriage suggested in the article, there is an important difference of degree. Justice Scalia's language in Lawrence v. Texas and United States v. Windsor was much stronger, explaining that the Court was dismantling the justification for understanding marriage as requiring a man and a woman. Justice Scalia did not need to be a prophet to see where the Court's logic was leading. 

Put aside, though, problems with the headline. The possibility of an emboldened judiciary using the Living Constitution to find the death penalty itself cruel and unusual is a plausible one.

Anyone who would celebrate this, though, should beware that the Living Constitution can take as well as give. Consider one of the article's main sources:

The ACLU’s national legal director, Steven R. Shapiro, told reporters in Washington Thursday that he, too, sees momentum toward a Supreme Court ruling ending the death penalty. Pointing to the abolition of capital punishment in Connecticut this year, Shapiro likened the cause to the gay marriage movement, which won victories at the state level before the court legalized it nationwide in June. "We may see a repeat of the same-sex marriage playbook," Shapiro said. "We can now see in the future a moment when the death penalty will be declared unconstitutional."

Mr. Shapiro and his organization are the same people who were on the wrong side of the unanimous Supreme Court free speech decision in McCullen v. Coakley. If you want to see "evolution" on constitutional meaning, check out footnote 5 of the ACLU's brief in that case.

Now consider the evidence that Mr. Shapiro cites: "the abolition of capital punishment in Connecticut this year." The reference is to a Connecticut Supreme Court opinion from earlier this year. That opinion eliminated the death penalty judicially for people who remained subject to capital sentences after the Connecticut legislature abolished the death penalty prospectively in 2012. It was a judicial clean-up effort, further evidence of a leading-from-behind judiciary emboldened by shifts in public opinion. By placing prospective legislative abolition of the death penalty off the table, the opinion's reasoning makes it harder in other jurisdictions to undertake abolition legislatively; a powerful compromise for the transition is declared unconstitutional.

Another problem for anti-death-penalty, anti-Living-Constitution people like me is posed by Eighth Amendment doctrine that counts legislative abolition as evidence of "evolving standards of decency" used to underwrite judicial abolition.

Is there any way to abolish the death penalty in one's state without providing more grist for the evolving standards of decency mill? Nothing comes to mind, but I sure would like to know.

For now, I'll simply express regret for, and opposition to, the way in which current Eighth Amendment doctrine makes it more difficult and more costly to accomplish abolition appropriately under our law.