Joseph Blocher Death Penalty Analysis

In an article written by Joseph Blocher the argument regarding the constitutionality of the death penalty is presented regarding both sides of the argument. He poses the question that if the Bill of Rights mentions a specific punishment is the Supreme Court allowed to find something unconstitutional if the text only suggests said punishment. 1 The conflicting opinions in Glossip v. Gross 2 has created renewed attention to the constitutionality of the death penalty. With the renewed attention several Supreme Court Justices have publicly voiced their stances on the topic. Both Justice Breyer and Justice Ginsburg stated they identified “three fundamental constitutional defects within the death penalty”. Those three defects they speak of are …show more content…
“The Fifth Amendment contains prohibitions not powers and there is no reason to suggest that it in anyway nullifies other constitutional prohibitions, most importantly the ban on cruel and unusual punishment”.1 The basis of the Fifth Amendment Argument is that the text contained in the amendment protects the death penalty from constitutional changes. Blocher also points out that from “the text of the constitution itself the existence of capital punishment was accepted by the …show more content…
The most prominent reason why is that having one set of prohibitions does not give the government license to violate another.1 As the Supreme Court stated in Trop v Dulles the Eighth Amendment "draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society."6 The Fifth Amendment Argument is an affirmation regarding the Framer's beliefs, not why those beliefs should be of concern. Blocher reminds us that “The same people who proposed and ratified the Eighth Amendment also proposed and ratified the Fifth, including its references to the death penalty.”1 There are many points yet what we are left with is the Founding Era's position on capital punishment render mild and highly unnecessary support. Per Blocher “The only constitutional argument to which this fact is at all relevant is one concerning the original meaning of the Eighth Amendment”.1 According to the Supreme Court doctrine nothing within the Fifth Amendment states whether the “evolving standards of decency” should possibly be reviewed. The current debate regarding the death penalty is a separate issue from the Fifth Amendment Argument, though many would