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9 - How Should the Supreme Court Rule? Capital Punishment, Abortion, and Same-Sex Unions

Published online by Cambridge University Press:  22 July 2009

Michael J. Perry
Michael J. Perry
Affiliation:
Emory University, Atlanta
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Summary

I was concerned in Chapter 8 with the proper role of courts – their proper role, that is, in a liberal democracy – in protecting constitutionally entrenched human rights. I am concerned in this chapter with the proper role of one particular court: the Supreme Court of the United States. The point of departure for this chapter is a position I defended in Chapter 8: Because the power the Supreme Court exercises in protecting constitutionally entrenched human rights is the power of judicial ultimacy, the Court should exercise the power in a deferential (Thayerian) fashion. In this chapter, I pursue the implications of that position for three questions:

  • Should the Supreme Court rule that capital punishment is “cruel and unusual” within the meaning of the Eighth Amendment to the United States Constitution?

  • Should it rule that laws banning pre-viability abortions violate the Fourteenth Amendment?

  • Should it rule that state refusals to recognize, by extending the benefit of law to, same-sex unions violates the Fourteenth Amendment?

In Part Two of this book, I began exploring the human rights dimensions of capital punishment (Chapter 5), abortion (Chapter 6), and same-sex unions (Chapter 7); in this chapter, I continue and conclude the exploration.

CAPITAL PUNISHMENT AND THE EIGHTH AMENDMENT

The Eighth Amendment to the Constitution, which limits both national (federal) and state power, provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Is capital punishment “cruel and unusual” within the meaning of the Eighth Amendment?

Type
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Toward a Theory of Human Rights
Religion, Law, Courts
 , pp. 118 - 140
Publisher: Cambridge University Press
Print publication year: 2006

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