Can the Constitution Prohibit Something it Contemplates?

Posted: July 28, 2016 by Nazim in Death Penalty, The Breyer Scale

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The Fifth Amendment expressly mentions the possibility of the government putting someone “in jeopardy of life” and being “deprived of life,” clear references to the possibility that the death penalty is a possible sentence. But there is a growing movement that believes that the death penalty is unconstitutional “in and of itself.” Among the multitude espousing this position is Justice Breyer, who announced his position in his dissent in Glossip v. Gross, in which Justice Ginsburg joined. The question of whether the Constitution can prohibit something it contemplates is examined by Joseph Blocher in the Northwestern University Law Review. Hat tip to the Sentencing Law and Policy Blog.

 

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