Published by the Center for the Study of The Great Ideas (founded in 1990 by Mortimer J. Adler and Max Weismann)
In association with the The Adler-Aquinas Institute and Aquinas School of Leadership
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Sunday, October 17, 2010

A Question about Capital Punishment . . .

Why do you think this country has not abolished capital punishment, while most other (including our two neighbors, Canada and Mexico) so-called civilized nations have?


  1. I struggle to distill my answer to as concise an answer as possible. I will make an attempt:

    Question: Why do you think this country has not abolished capital punishment, while most other (including our two neighbors, Canada and Mexico) so-called civilized nations have?

    Answer: Profit. There’s just more money in it for the current dominant classes. If there were a shift in the dominance of classes, or a perceived shift in the profit and loss calculations of the current dominate classes, the policy would shift.

  2. I would propose that the reason this country does not abolish capital punishment as its neighbors have is probably the same reason this country took so long to abolish slavery, well behind other peer countries.

    This led to the cost of its bloodiest conflict (its Civil War) and the loss of 600,000 lives. A steep price to pay.

  3. There was a time in the early '70s when there was a virtual moratorium on capital punishment - people simply weren't executed - as the Supreme Court was considering its constitutionality. The Court came this close to saying the death penalty violated the 8th Amendment prohibition on cruel and unusual punishment. Had Humphrey been elected in '68 and appointed four Justices (as Nixon did), I believe the Court would have found the death penalty unconstitutional. But that, of course, didn't happen. And what with the reactionary turn in American politics and the American judiciary since then, such an outcome would be unthinkable today.

  4. Have we become such a nation of positive law that the natural right to life is ignored?

  5. Max--I would say that the response to your question is yes.
    Additionally, though you say 'become a nation of positive law', am not so sure this has not essentially been the case since the beginning.

  6. You are correct Jaime, but the philosophical underpinnings found in the Declaration and not in the Constitution, were historically our guiding light, yes?

  7. An early (1798) decision of the Supreme Court shows how the justices took the path of ignoring Natural Law in favor of positive law.

    See Calder v Bull [].

    There the majority writes:

    "...If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice. There are then but two lights, in which the subject can be viewed: 1st. If the Legislature pursue the authority delegated to them, their acts are valid. 2nd. If they transgress the boundaries of that authority, their acts are invalid. In the former case, they exercise the discretion vested in them by the people, to whom alone they are responsible for the faithful discharge of their trust: but in the latter case, they violate a fundamental law, which must be our guide, whenever we are called upon as judges to determine the validity of a legislative act."

    By ignoring the Natural Law, the legal positivists continually find themselves having to invent their way out of the boxes they have created themselves.

    In the process, human beings may be killed or simply defined out of existence by positive law depending on the votes of the majority on the court.

  8. John Paul Stevens's One Regret: Upholding The Death Penalty


    Over an almost 35 year Supreme Court career, now retired Justice John Paul Stevens said recently that the lone vote he regrets is one that he cast to restore the death penalty in 1976.

    Less than a year into his Supreme Court judgeship, Stevens sided with the majority decision in Gregg v. Georgia a case that served to overrule a temporary stay in capital punishment enacted by Furman v. Georgia in 1972.

    Three and a half decades later, Stevens spoke with NPR about that particular vote and the misgivings he had about his opinion in the case.

    From NPR's report:

    "I thought at the time ... that if the universe of defendants eligible for the death penalty is sufficiently narrow so that you can be confident that the defendant really merits that severe punishment, that the death penalty was appropriate," he says. But, over the years, "the court constantly expanded the cases eligible for the death penalty, so that the underlying premise for my vote has disappeared, in a sense."
    According to NPR, Stevens described the bending of the court toward capital punishment as a function of an increasing number of "hard-line conservative justices" who broadened the applicability of the death penalty.

    "Not only is it a larger universe, but the procedures have become more prosecution-friendly," Stevens told NPR.

    Practices such as allowing prosecutors to screen jurors who could potentially be opposed to giving the death penalty, as well as the approval of emotionally-charged testimony from the families of victims during the sentencing phase of trials have all "load[ed] the dice in favor of the prosecution and against the defendant," Stevens told NPR.

    Though Stevens did also vote with the majority in Baze v. Reese, a Kentucky decision that upheld the death penalty by lethal injection in 2008, he called his vote in Gregg "the one vote I would change." According to NPR, Stevens described his vote as "incorrect," and claimed the 1976 court "did not foresee how it would be interpreted."

    "I really think that the death penalty today is vastly different from the death penalty that we thought we were authorizing," Stevens said. "And I think if the procedures had been followed that we expected to be in place, I think I probably would've still had the same views."

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  11. Does anyone in this discussion, agree with having capital punishment, as a law in our country?

  12. First, while I agree that the death penalty is contrary to natural law, this view is not universally held - there are those who believe that the lex talionis (an eye for an eye, letting the punishment fit the crime) is part of natural law, and support capital punishment on that ground.

    Second, it was not until the Civil War (Gettysburg address, 14th amendment, etc.) that the equality said in the Declaration to be self-evident became the underpinning of constitutional interpretation.

    Third, the notion of unelected judges making decisions on the basis of their views of natural law that are ungrounded in legislation or precedent gives me the willies. This does not make me a legal positivist - just that our constitution sets a method by which natural law can become positive law through the actions of the three branches of government.

  13. Max--yes, I think you are correct about the Declaration of Independence. That said, perhaps this is where things get a little muddled. Moving from philosophical underpinnings and 'a guiding light' to putting something into action that is supposed to be true to these and yet seem to 'work' in practice.

  14. Thanks Jay, I get the willies too, especially with the character of the court, these days!

    My name is Max Weismann and I approve this message.

  15. I have heard many arguments against capital punishment all my life, but never on the basis of our inalienable right to life. Imagine a world where we did not have an inalienable right to life.

  16. Postscript: Actually, I don't think much of the world really believes in inalienable rights--including many in this country.

  17. Sorry to be so late to the discussion. Since no one has yet provided the correct answer, allow me:

    We haven't abolished the death penalty because we aren't as foolish as they are.

    No applause please; I'm at the office and don't want to startle my co-workers.

  18. Then to you Agim, the right to life is not inalienable, correct?