Do you believe the death penalty is unconstitutional under the 8th amendment

[lfromnj]

No, I don't believe the death penalty is unconstitutional even if I oppose it.

[MarkD]

No, it was commonly practiced when the 8th Amendment was adopted. Our Founding Fathers did not adopt constitutional rules to ban what they themselves were doing.

[Big Abraham]

No, only torturous methods of execution are

[brucejoel99]

Under certain conditions, no. Archaic methods like the guillotine, torturing people to death via hanging, or even firing squads should probably be considered unconstitutional, yes, but I don't believe a hygienic & properly-undertaken lethal injection (i.e., the traditional 3 injections of sodium thiopental, pavulon, & potassium chloride with no mistakes whatsoever during the administering thereof) would be either cruel or unusual.

However, doing so has become pretty much impossible in the status quo, so until that changes, then yes, the death penalty as currently administered (i.e., sodium thiopental with only the possible usage of midazolam & hydromorphone) has become incredibly open to mistakes during the administration thereof, & as such, should be considered unconstitutional.

[Calthrina950]

No, it was commonly practiced when the 8th Amendment was adopted. Our Founding Fathers did not adopt constitutional rules to ban what they themselves were doing.

I'd agree with this, and the Fourth Amendment makes explicit mention of "capital, or other infamous crimes", when declaring that no person can be tried for such crimes unless they are indicted by a grand jury. I believe that the most plausible means to make the death penalty unconstitutional is to amend the Constitution. And of course, states obviously have the right to determine whether or not to utilize the death penalty for state offenses, and more (such as my home state of Colorado) have decided to abolish it.

[True Federalist (진정한 연방 주의자)]

Actually, based on all available evidence, the guillotine is a relatively humane method. About the only potential improvement would be to sedate the condemned to eliminate the chance of em experiencing a period of awareness that eir head and body are no longer connected.

[Battista Minola 1616]

Eeeh... at heart I think it fits well under "cruel and unusual punishments" but I am not sure it would be good legal reasoning.

[Ferguson97]

Yes.

[YE]

Yes.

[Del Tachi]

Obviously not.  The 8th amendment is a restriction on the judicial branch, not legislatively-prescribed punishments

[Alben Barkley]

The idea that "They did it at the time, therefore it can't be unconstitutional" isn't entirely sound reasoning. The Constitution is a living document. The founders were well aware when writing it that their values at the time were not flawless and would not necessarily translate to the values of future generations, which is why they made the Constitution open to revision and why they tended to keep what they wrote broad and open to interpretation.

This is why it has been ruled that the death penalty for minors and the mentally impaired, for example, is unconstitutional under the eighth amendment even though that too was not illegal at the time the Constitution was written and for many years afterwards. Likewise, same-sex marriage was legalized on the basis of the fourteenth amendment even though it's pretty clear that the authors of the amendment were not thinking of that when they wrote it.

It all comes down to which legal school of thought you subscribe to. If you're a strict originalist, you'll naturally say it's not unconstitutional because the original intent of the founders will matter more to you. But even a textualist could argue that it unconstitutional is if they believe the death penalty is "cruel and unusual" and thus is unconstitutional based on the plain meaning of the text, intent aside. (See Gorsuch arguing that discrimination against LGBT people is unconstitutional from a textualist stance.) And certainly a living Constitutionalist could argue that the death penalty meets our current standards for "cruel and unusual" even if didn't meet the standards at the time the Constitution was written, which they would say is not relevant.

[Bleach Blonde Bad Built Butch Bodies for Biden]

Yes, but I believe that the death penalty as practiced should be made public and heavily commercialized so as to expose the vengeful and bloodthirsty nature of the typical American. Sadly though, having the perp's head cut off and people betting on which hole it falls into would almost certainly meet the criteria of "cruel and unusual".

In other words, I take George Carlin's position on the matter.

[True Federalist (진정한 연방 주의자)]

Obviously not.  The 8th amendment is a restriction on the judicial branch, not legislatively-prescribed punishments

Agreed, but I don't think the purpose of this thread is to debate how the Court's 8th Amendment jurisprudence is one of the clearest examples of how the Court has abused judicial review to act as an unelected legislature.