The Death Penalty and the Fifth Amendment

In this essay, Blocher considers recent developments that have given new hope to those seeking constitutional abolition of the death penalty. Some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty is constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but Blocher argues that its strength is largely superficial and also mostly irrelevant to the claims being made against the constitutionality of capital punishment. At most, the references to the death penalty in the Fifth Amendment may reflect a founding-era assumption that capital punishment was constitutionally permissible at that time.

But they do not amount to a constitutional authorization; if capital punishment violates another constitutional provision, it is unconstitutional. Blocher concludes that there might be good arguments for the constitutionality of the death penalty, but the Fifth Amendment Argument is not among them.