Death Penalty Jurisprudence by Tallying State Legislative Enactments: Harmonizing the Eighth and Tenth Amendments

35 Pages Posted: 18 Feb 2014

See all articles by Charles MacLean

Charles MacLean

Metropolitan State University School of Law Enforcement and Criminal Justice

Akram Faizer

Lincoln Memorial University - Duncan School of Law

Date Written: February 1, 2014

Abstract

Whenever most legislatures in death penalty states have rejected a particular application of capital punishment, the Supreme Court has held that no state may retain that application, reasoning that any death penalty approach rejected by the majority of states is, perforce, unconstitutionally “cruel and unusual” under the Eighth Amendment. Although some laud these decisions, they ignore the States’ Tenth Amendment rights to govern themselves within broad constitutional parameters. Rather than defer to opinion polls or tallying state legislative enactments, the Court should engage in true constitutional analysis, forbidding cruel and unusual punishments, but simultaneously honoring states’ rights to govern themselves.

Suggested Citation

MacLean, Charles and Faizer, Akram, Death Penalty Jurisprudence by Tallying State Legislative Enactments: Harmonizing the Eighth and Tenth Amendments (February 1, 2014). Available at SSRN: https://ssrn.com/abstract=2397388 or http://dx.doi.org/10.2139/ssrn.2397388

Charles MacLean (Contact Author)

Metropolitan State University School of Law Enforcement and Criminal Justice ( email )

700 East Seventh Street
St. Paul, MN 55106
United States

Akram Faizer

Lincoln Memorial University - Duncan School of Law ( email )

601 West Summit Hill Drive
Knoxville, TN 37902
United States

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