Capital Punishment: Constitutional?

By Douglas V. Gibbs

The Constitution does not necessarily forbid, or condone, the death penalty. That is not to say that the document is totally silent on the matter. In the Fifth Amendment, capital crimes are addressed. A capital crime is a crime to which the penalty is death. The founders did believe that a death penalty was sometimes warranted. Treason would be one of those crimes that the founders believed was punishable by death.

Thomas Jefferson said: “If a man do levy war against the Commonwealth or be adherent to the enemies of the commonwealth giving to them aid or comfort in the commonwealth, or elsewhere, and thereof be convicted of open deed, by the evidence of two sufficient witnesses, or his own voluntary confession, the said cases, and no others, shall be adjudged treasons which extend to the commonwealth, and the person so convicted shall suffer death by hanging, and shall forfeit his lands and goods to the Commonwealth.”

The argument against the death penalty often uses the 8th Amendment for their argument. The 8th Amendment reads: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted."

First, the 8th Amendment applies to the federal government, not the states. Second, it would be reasonable to accept that this amendment is essentially saying that the punishment should fit the crime. Third, cruel and unusual punishment was not something that needed to be specifically defined, because it was understood what cruel and unusual punishments were. Fourth, if one would argue that the death penalty is a cruel and unusual punishment, then why in the above quote did Jefferson recommend the death penalty for treason?

This is not to say states should not ban the death penalty. Even though personally I am a supporter of capital punishment for some crimes, I recognize that the states have every right to have the death penalty on their books, or to ban the punishment from their particular state. That is a part of the beauty of state sovereignty. Some states may choose to keep the death penalty, some may decide to get rid of it. There is no authority in the Constitution for the federal government to dictate to the states where to stand on the issue, the answer is for each state to determine on its own.

If you disagree with your state's choice on this matter, you have one of three decisions you can make. Shut up and put up, work to change it, or vote with your feet and move to a state that more fits your belief system.

-- Political Pistachio Conservative News and Commentary