Michael J. Perry (Emory University School of Law) has posted Capital Punishment is Unconstitutional, but that Doesn't Mean that the Supreme Court Should So Rule on SSRN. Here is the abstract:
Whether a law (or other policy) is unconstitutional is one question; whether the Supreme Court (in an appropriate case) should rule that the law is unconstitutional is a different question. Contemporary constitutional theorists are virtually unanimous in ignoring the analytic space between the two questions. That a law is unconstitutional does not entail that the Supreme Court should rule that the law is unconstitutional. In this paper - a revised version of which will be my contribution to a symposium issue of the Georgia Law Review honoring Professor Milner Ball - I explain why we should conclude that capital punishment violates the cruel and unusual punishments clause. (I am inclined to think that we are all originalists now; in any event, my explanation presupposes an originalist conception of constitutional interpretation - although, to be sure, *not* Antonin Scalia's misconceived originalist conception of constutitional interpretation.) I also explain, however, why the Supreme Court (probably) should not rule that capital punishment is unconstitutional.
