Some pro­po­nents of the death penal­ty — includ­ing the late Justice Antonin Scalia and the 2016 Republican Party plat­form—have assert­ed that the Supreme Court can­not declare the death penal­ty uncon­sti­tu­tion­al because the Framers includ­ed ref­er­ence to the pun­ish­ment in the text of the Fifth Amendment. An arti­cle by Duke Law School Professor Joseph Blocher, pub­lished in the Northwestern University Law Review, crit­i­cal­ly ana­lyzes that argu­ment and con­cludes that the Fifth Amendment’s acknowl­edg­ment of the death penal­ty as an accept­able prac­tice in the 1700s does not fore­close judi­cial review of the con­sti­tu­tion­al­i­ty of the prac­tice under the Eighth Amendment or any oth­er con­sti­tu­tion­al amend­ment. This, Blocher says, is because the Fifth Amendment con­tains restric­tions on the exer­cise of gov­ern­ment pow­er, rather than affir­ma­tive­ly grant­i­ng the gov­ern­ment any con­sti­tu­tion­al pow­er. The Fifth Amendment, Blocher writes, ​“con­tains three pro­hi­bi­tions on the use of cap­i­tal pun­ish­ment.” The Grand Jury Clause pro­hibits the gov­ern­ment from bring­ing charges against a per­son ​“for a cap­i­tal, or oth­er­wise infa­mous crime, unless on a pre­sent­ment or indict­ment of a Grand Jury.” The Double Jeopardy Clause pro­hibits twice plac­ing any per­son ​“in jeop­ardy of life or limb” for the same offense. The Due Process Clause pro­hibits depriv­ing any per­son ​“of life, lib­er­ty, or prop­er­ty, with­out due process of law.” No one would argue that the men­tion of depri­va­tion of limb in the Double Jeopardy Clause con­sti­tu­tion­al­ly legit­imizes ampu­ta­tion as a crim­i­nal pun­ish­ment. And by impos­ing con­sti­tu­tion­al lim­its on gov­ern­ment con­duct in attempt­ing to take a defen­dan­t’s life, Blocher says ​“there is no rea­son to sup­pose that [the Fifth Amendment] some­how nul­li­fies oth­er con­sti­tu­tion­al pro­hi­bi­tions — most impor­tant­ly, the ban on cru­el and unusu­al pun­ish­ment.” He notes that the Ninth Amendment rein­forces this read­ing, ​“The Ninth Amendment indi­cates that the entire Bill of Rights — let alone any par­tic­u­lar pro­vi­sion of it — can­not be read as an exclu­sive list. …Compliance with the Fifth Amendment does not pro­vide the death penal­ty a safe har­bor against con­sti­tu­tion­al chal­lenges, includ­ing those derived from the Eighth Amendment.” Blocher con­cludes that to the extent rea­sons may exist not to abol­ish the death penal­ty, ​“the Fifth Amendment is not one of them.”

(J. Blocher, ​“The Death Penalty and the Fifth Amendment,” Northwestern University Law Review, 2016.) See U.S. Supreme Court and Law Reviews.

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