The Courts, the Constitution, and Capital Punishment
Whenever legislatures refuse to modify the law in response to demands for reform, other governmental institutions through which these demands can be satisfied should be explored. In our nation, reform denied in the legislature can sometimes be obtained through the appellate courts because legislative action can be limited by the rule of constitutional law with its provision for basic rights and liberties, and because final interpretation rests with an independent judiciary empowered to review and nullify statutory enactments. During the 1950s and early 1960s, it was not the Congress but the Supreme Court that instructed the nation in the meaning of "equal protection of the laws" under the Constitution as it applies to all Americans in schools and other public facilities. A few state legislatures anticipated the court decisions by repealing the inherited segregationist laws or by passing antidiscrimination legislation, but many other legislatures turned a deaf ear to the demands for reform. One could cite other instances where legislative inertia has been overcome only by judicial initiative. To mention but one other contemporary example, the "loyalty oaths" imposed on public employees, including teachers, have at last been falling in state after state thanks to court decisions which have found these oaths invalid and unconstitutional. In no case, however, has a legislature itself undone its misguided enactments in this area; the work of reform has been accomplished almost entirely by the judiciary.
In the United States today, one is tempted to guess that repeal of the death penalty is roughly at the same point that abolition of slavery would be had there been no Emancipation Proclamation and no Civil War. This country's slow and uneven progress toward abolition of capital punishment has depended upon the fitful attention of the several state legislatures, rarely noted for their preoccupation with the task of penal reform. Given the affront to human dignity of this anachronistic penalty, one naturally wonders whether the lethargy of the legislatures might not be effectively outflanked by recourse to the courts and the Constitution. In another place, I have proposed that eventually there ought to be a constitutional prohibition of the death penalty. 1 Although this would not be a specially plausible political tactic for abolitionists to pursue, it would be a fitting way to record society's total repudiation of this mode of punishment. But before this idea is pursued, a prior strategy commends itself. Why not try to establish the unconstitutionality of the death penalty under the Constitution as it already stands, and rid ourselves of this blight in the same way we are ridding ourselves of legally protected racial discriminations and legally imposed tests of