Thursday, December 31, 2009
Richard M. Re has posted Can Congress Overturn Kennedy v. Louisiana? The Contingency of Recent Eighth Amendment Jurisprudence (Harvard Journal of Law and Public Policy, Forthcoming) on SSRN. Here is the abstract:
As recently illustrated by Kennedy v. Louisiana, the Supreme Court regularly interprets the Eighth Amendment based on the perceived existence of “national consensus.” While 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.