Changing Against the Times: Against an Originalist Cruel and Unusual Jurisprudence

Changing Against the Times: Against an Originalist

Cruel and Unusual Jurisprudence

BLAKE ALLEN*

ABSTRACT

After interpreting the Cruel and Unusual Clause of the Eighth Amendment in

a decidedly nonoriginalist fashion for a century, the Supreme Court has

recently introduced a new, purportedly originalist jurisprudence specif‌ic to

method-of-execution challenges. This new analysis, focusing on readily avail-

able alternative methods of execution to those methods challenged under the

Clause, facially appears to guarantee the constitutionality of capital punishment

going forward. Even conceding that this “alternative-methods” analysis is

indeed originalist in nature (it is not), originalism should be rejected within the

context of the Court’s Cruel and Unusual jurisprudence. By originalists’ own

criteria, their theory ought to be accepted in light of the supposedly superior

results that theory’s wholesale adoption would offer. In the context of the

Clause, however, the costs of doing so are far too great for these benef‌its to be

compelling.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 584

I. HISTORICAL OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 585

A. A Brief Sketch of the Court’s Death Penalty Jurisprudence . . 585

1. Evolving Standards of Decency . . . . . . . . . . . . . . . . . . . 585

2. Baze’s Sea Change. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 586

B. A Comparably Brief Sketch of Originalism. . . . . . . . . . . . . . . 588

II. ORIGINALIST INCOMPATIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . 591

A. Potential Reconciliations. . . . . . . . . . . . . . . . . . . . . . . . . . . . 591

B. The Nonoriginalism of the Alternative-Methods Analysis . . . . 593

C. The Precedent Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 595

1. Option 1: Rejecting Precedent. . . . . . . . . . . . . . . . . . . . . 596

2. Option 2: Rejecting Originalism . . . . . . . . . . . . . . . . . . . 599

* J.D., Georgetown University Law Center, 2020. © 2020, Blake Allen.

583

III. THE ADVANTAGES OF REJECTING ORIGINALISM . . . . . . . . . . . . . . . 599

A. Originalism’s Anormative Smokescreen. . . . . . . . . . . . . . . . . 599

B. Originalism’s Normative Failings . . . . . . . . . . . . . . . . . . . . . 601

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 604

INTRODUCTION

Writing for the Supreme Court, Justice Neil Gorsuch announced in Bucklew

v. Precythe

1

that a proper analysis of a challenge to a state’s chosen method of

execution under the Eighth Amendment’s Cruel and Unusual Clause begins

by “examin[ing] the original and historical understanding of the Eighth

Amendment.”

2

That is, the proper analysis is explicitly originalist in nature.

But the issue in Bucklew was so divorced from the context of the Eighth

Amendment’s adoption in 1791 that viewing it through an originalist lens

presents an at least facial incoherence. Namely, at issue was whether a single-

drug lethal injection protocol using an overwhelming dose of a sedative (pento-

barbital) carried an unconstitutional risk of unnecessary pain as applied to a

convict suffering from a rare blood vessel disease when compared to a proposed

alternative method of execution of using nitrogen gas to induce lethal hypoxia.

3

Why should we imagine whether someone over two centuries in the past would

consider the lethal injection of the Bucklew challenger a cruel and unusual pun-

ishment when that person would have no context for many of the issue’s compo-

nents (e.g., injections, blood vessel disorders, and nitrogen gas)?

With this paper, I aim to show that this facial incoherence speaks to a deeper—

perhaps fundamental—incompatibility with originalism and analyzing punish-

ments under the Cruel and Unusual Clause (“the Clause”). In Part I, I provide

brief overviews of the Court’s Cruel and Unusual jurisprudence and of original-

ism as a theory of constitutional interpretation. In Part II, I demonstrate that the

Court’s jurisprudence—up to and including Bucklew—has never been consis-

tently originalist; indeed, much of the Court’s jurisprudence is explicitly nonori-

ginalist in character. Finally, in Part III, I argue that we should prefer a Cruel and

Unusual jurisprudence free of originalist inf‌luence.

Although this paper does not make any arguments regarding originalism as an

overarching theory of constitutional interpretation, my arguments have obvious

implications for originalism’s viability. If my argument that originalism should

be rejected in the context of the Eighth Amendment is correct, it would seem to

follow that originalism cannot coherently be applied to other constitutional issues

1. 139 S. Ct. 1112 (2019).

2. See id. at 1122.

3. Id. at 1121–22.

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