Death Penalty Part 1: Is It Constitutional?

The governor of Alabama has granted a temporary stay of execution for convicted murderer Thomas Arthur. Understand the governor is not opposed to the death penalty. He is, however, concerned about the way it is carried out especially, since a federal judge in Tennessee has ruled the current meds used in lethal injection carried a “substantial risk of unnecessary pain.” The “substantial risk of unnecessary pain” according to the court violates the eighth amendment prohibiting “cruel and unusual punishment.” I am no legal scholar, so there is no pretense here. My comments I hope reflect a common sense reading of the Constitution.

It is the obvious irony of the current controversy over the issue in Alabama which strikes me as being a bit odd. I am not arguing the specific merits of the Thomas Arthur or any other death penalty case per se where superfluous arguments are made against its application relative to race, economics or any other alleged societal misapplications. I believe the death penalty is permissible both morally and, even less importantly to me overall, constitutionally. I want to argue for capital punishment on both fronts. Since the latter is not as important to me as the moral right for it to exist, let me address in this post the opposition to the death penalty on the basis of the eighth amendment, which prompted the governor’s stay.

To argue against the constitutionality of the death penalty from the eighth amendment is to undermine the rest of the Bill of Rights to the Constitution of the United States. Clearly, the framers of the Constitution understood the right of the death penalty to exist as evidenced by the language in the Fifth Amendment (which upholds the right, against self-incrimination and double jeopardy, for due process, against confiscation of private property without just compensation). Notice how the wording of the fifth amendment begins (bold emphasis mine – br):

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”

There is a well-known and accepted maxim that states “that which proves too much proves nothing at all.” If the death penalty is unconstitutional based on the eighth amendment, then the fifth amendment itself must be declared unconstitutional because it clearly accepts the right of capital punishment to exist. Thus, any argument based on the eighth amendment proves too much and is an unreasonable, untenable assault (whether intentional or not) on the whole of the Bill of Rights.

Death from a human point of view by its very nature is cruel and unusual. Just ask the parents of a small child whose life has been taken away by “natural causes” (some explainable or unexplainable disease). Just ask the young children who suffered the loss of a parent(s) to some accident or disease. Just ask a bystander who has helplessly and beyond his control had to watch another die for whatever reason. All of this we ask of those who are innocent survivors and victims of life. Yet lost in the innocence of these survivors are the victims of criminal homicide and their survivors, who know all too well, the nature of death as being cruel and unusual.

The constitutionality of the death penalty exists for a higher reason than the Constitution itself.

Next Post: Death Penalty Part 2: Is Capital Punishment Moral?