As recently illustrated in Kennedy v. Louisiana, the Supreme Court regularly interprets the Eighth Amendment based on the perceived existence of "national consensus." Although this practice has been the topic of extensive commentary and criticism, the existing debate has overlooked the most natural implication of the Court's consensus-based argumentation--namely, the possibility that recent Eighth Amendment jurisprudence is subject to federal legislative override. This Article argues from existing case law that Kennedy should be susceptible to democratic correction via countervailing federal legislation. Such legislation would demonstrate that no "national consensus" supports the Court's holding, thereby suggesting that the punishment in question does not actually violate the Eighth Amendment. One might respond that Kennedy would have found a constitutional violation based on the Court's "independent judgment," regardless of whether a supportive national consensus existed. But even assuming that is true, federal legislation could address the concerns that underlie the Court's independent judgment analysis. Either way, Kennedy's contingent reasoning would permit at least some correction by the democratic branches. Exploring these possibilities allows us to better understand and justify recent Eighth Amendment jurisprudence, as well as recent substantive due process cases like Lawrence v. Texas that also look to state and federal practice as sources of constitutional law. Ultimately, though, the most important consequence of appreciating Kennedy's democratic reversibility has more to do with the President than with the professoriate. As a candidate for President, Barack Obama pointedly criticized Kennedy's holding. If this Article is correct, then the President and Congress now have an opportunity to engage the Court in a dialogue regarding the Eighth Amendment" s contemporary practical meaning.
I. WOULD COUNTERVAILING FEDERAL
LEGISLATION SHOW THAT NO
A. Situating Kennedy in Eighth
B. Legislative Trends and Actually
C. The Overriding Importance of
D. Justifying Kennedy's Methodology:
E. Was Consensus Necessary in Kennedy?
II. HOW MIGHT CONGRESS ADDRESS THE
COURT'S INDEPENDENT JUDGMENT?
A. Justifying Kennedy's Methodology:
B. Enforcing the Eighth Amendment
C. Addressing the Court's Independent
1. Reasons Within the Judiciary's
2. Reasons Outside the Judiciary's
3. Reasons Outside the Judiciary's
Expertise: Value Judgments
III. WHY CAN'T CONGRESS ALSO OVERTURN
LAWRENCE V. TEXAS?
A. Early Use of Objective Consensus
B. The Eighth Amendment as
Substantive Due Process
C. Absence of Consensus as a
D. Contingency in Substantive
Due Process Case Law
IV. DOES KENNEDY STAND UP TO CRITICISM?
A. State-based Efforts to Overturn Kennedy
B. Identifying Mechanisms for
C. Chilling and Limbering Eighth
D. Originalism versus Reversible Eighth
CONCLUSION: FIVE WAYS OF READING KENNEDY
In June 2008, the Supreme Court invalidated a Louisiana statute that made the rape of a child a capital offense. (1) The Court held that "the Eighth Amendment prohibits the death penalty" for child rape offenses that do not entail a victim's actual or intended death. (2) Therefore, the Court held that the Louisiana law "is unconstitutional." (3) When courts invoke the Constitution in this way, their edicts are typically received as final pronouncements. …