Raoul Berger, one of the greatest constitutional scholars of all time, addresses the Supreme Court's treatment of the death penalty. Here, he explores the history and original meaning of the Eighth Amendment's "cruel and unusual punishments" clause. What does the Constitution say about capital punishment?
With history and logic on his side, Berger demonstrates that the Eighth Amendment's "cruel and unusual punishments" clause does not prohibit the death penalty. It does not even require that a punishment be proportional to the crime. Rooted in English law, the clause only referred to certain kinds of punishments. Here, Berger is not obligated to give an exhaustive, inclusive definition. It is sufficient to simply show what the clause did not mean to the people who wrote and ratified it.
In keeping with his previous work on the incorporation doctrine and the Fourteenth Amendment, Berger demonstrates that the Eighth Amendment is only applicable against the federal government, not the states. In short, the Supreme Court's interference in state policies on capital punishment is totally unwarranted by the Constitution and is totally opposite to anything the sovereign people have ratified.
This book is highly recommended! When the philosopher kings on the court substitute their own "evolving standards of decency" for the Constitution's original understanding, we get the arbitrary rule of judges, as Berger details in this outstanding scholarly book.
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