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In his dissent from the Supreme Court's denial of review in the case of Callins v. Collins, No. 93-7054, Justice Blackman correctly points out the Supreme Court's inability to reconcile the existence of the death penalty with the demands of the eighth amendment of the Constitution. In criticizing Justice Blackman's conclusion that the death penalty violates the constitution, Justice Scalia makes a serious error in his reasoning.
Justice Scalia argues that the fact that the Fifth Amendment refers to capital punishment "establishes beyond doubt that the death penalty is not one of the 'cruel and unusual punishments' prohibited by the Eighth Amendment." He quotes two clauses of the Fifth Amendment: "(n)o person shall be held to answer for a capital ... crime, unless on a presentation or indictment of a Grand Jury (the Grand Jury Clause) ... nor be deprived of life, liberty, or property, without due process of law (the Due Process Clause)".
There is a third clause in the Fifth Amendment that mentions capital punishment. That clause, however, demonstrates the problem with his argument. The Double Jeopardy Clause states "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb."
By Justice Scalia's literalist interpretations of the Constitution, this clause must be taken to authorize not only the loss of life as punishment for a crime, but also the loss of a limb. At the time the Constitution was written, many colonial laws authorized physical mutilation as a penal sanction. The "evolving standards of decency" of our society (the cornerstone of Eighth Amendment jurisprudence), however, have long since rejected such punishments as cruel and barbaric. As a result, there are few who would question that today these punishments violate the Eighth Amendment's ban on "cruel and unusual punishments."
Much of remainder of Justice Scalia's opinion is dedicated to graphic
descriptions of brutal crimes. It appears that it is perhaps Justice Scalia, and
not Justice Blackman, who is appealing to emotion rather than "the text and
tradition of the Constitution."