The Federalist Blog

Lawyers for Patrick Kennedy, a Louisiana man who received a death sentence for raping a child has petitioned the U.S. Supreme Court to have his case heard before the justices. Kennedy’s legal team wants the court to declare Louisiana’s law allowing the death penalty for child rape unconstitutional.

The petition asks the court to consider whether the Eighth Amendment’s Cruel and Unusual Punishment clause permits a state to impose the death penalty for child rape – a punishment usually reserved for those convicted of murder. If this is the case, Kennedy’s attorneys ask a second question: Does Louisiana’s capital rape statute violates the Eighth Amendment because it does not set clear guidelines for juries as to who is eligible for the death penalty?

There has not been an execution for rape in the United States since 1964, and no one has been executed for such a crime since the death penalty was reinstated in 1976.

Lawyers have petitioned the Supreme Court before (1997) over Louisiana’s child rape death penalty law. The court declined to hear the case, resulting in three of the justices – John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer – releasing a statement that indicated they had reservations about the law.

During the twentieth century, there were at least 14 States found to have had death penalties for the crime of rape: Alabama, Arkansas, Delaware, Georgia, Kentucky (if under age of 12), Louisiana, Maryland, Mississippi, Missouri, South Carolina, Tennessee (if under age of 18), Texas, Virginia, and West Virginia. There were also a number of State statutes that called for life imprisonment in lieu of death.

Whatever reservations these three justices may care to drum up, they cannot argue such laws are “unusual” in regards to punishment by death for rape.

The issue is not strictly confined to Louisiana as Texas recently joined six other states (Florida, Louisiana, Montana, Georgia, South Carolina and Oklahoma) with statutes allowing for the death penalty for the rape of a child.

So what does the Eighth Amendment under the United States Constitution have to do with State guidelines of capital punishment or even methods of execution? Amazingly, nothing at all.

Why do we find the words “cruel and unusual punishment” under the Eighth Amendment? The answer is simply because Congress was empowered to declare punishment for acts of treason, leading to the desire to have a precaution against mimicking England’s own shocking punishments for treason.

Blackstone described England’s punishment for treason as “very solemn and terrible.” How terrible? The guilty could first be hanged, to then be disemboweled, even if still alive. The head was then cut off and body carved up in four parts for the king to dispose. In some cases, one could be burned alive.

It should be noted the Eighth Amendment has nothing to do with torture but only with post criminal conviction punishment. Torture was never used for punishment but for obtaining confessions (witness against oneself) or information. The Fifth Amendment’s no person “shall be compelled (tortured) in any criminal case to be a witness against himself” addresses the use of torture for obtaining confessions or other false or true statements.

Many States adopted their own form of the U.S. Constitution’s Eighth Amendment because they too had their own laws for treason against the State. State courts and legislatures had since the beginning voided many kinds of punishments as a violation under the States own Eighth Amendment, whether dealing with cruel punishments or excessive fines.

Following the adoption of the Fourteenth Amendment, the court in Kemmler (136 U.S. 436) unanimously held the Eighth Amendment under the United States Constitution in no way restrained the States. There is a very good reason why this is so.

The Fourteenth Amendment is not about federal meddling in the administration of justice within any State, nor is it about forcing federal limitations or norms of justice upon the States. The Fourteenth Amendment is all about redress for the “willful and corrupt” (Bingham’s words) denial or unequal application of State laws in the administration of justice for life, liberty, and property by organic acts of the legislature.

One might protest by pointing out the Fourteenth’s first section primary author, John Bingham, proclaimed three years after its adoption that the first eight amendments were never a limitation upon the States until made so by the Fourteenth Amendment. Many conveniently ignore the fact that he also made clear he was only speaking of the privileges and immunities of United States citizens as distinguished from citizens of a State.

He also made clear that if the first eight amendments were to be applicable against the States, it was through the privileges and immunities of United States citizens – not due process.

The distinction between citizens of the United States, and citizens of a State was well known and understood in 1866, yet Mr. Bingham settled upon the language “citizens of the United States.” He later declared in January of 1871 (House Report No. 22) that the Fourteenth Amendment neither changed nor modified the relationship between citizens of a State, and citizens of the United States.

In other words, citizens of the States under the Fourteenth Amendment were left exclusively under the protection and laws of the States, and no jurisdiction over matters of administering State laws were surrendered. If this were to be the purpose of the amendment, then all the coercion in the world by radical Republicans would have lead to no more than four States at best ratifying such an amendment.

All Bingham did, as he explained in March of 1871, was imitate Article I, Section 10. Did Congress or the court ever use anything under Article I, Section 10 as a pretext for new expansive federal powers over the States? No because like the Fourteenth’s first section, merely imposed a limitation upon the States directly, that is, “a law unto itself.” It gave the federal judiciary no direct jurisdiction or legislative powers over State enactments that did not clearly touch upon any of the provisions prohibited to the States.

After all, Bingham did state over and over that the Fourteenth Amendment did not change anything in regards to existing rights belonging to the States or the citizens of a State. Citizens have an inviolable right to enact whatever laws they deem fit for their security, and to punish offenders of their laws.

What might constitute cruel and unusual punishment in the ordinary course of imprisoning convicts, or in executing them, only the political societies of the States can judge. The only thing that can be said the Fourteenth Amendment does indeed prohibit in regards to capital punishment – and indeed, any punishments for that matter – is whatever punishments that may be authorized, they must be equally applicable to all, i.e., no caste laws of punishment.

Whatever one might think in regards to the death penalty for rape under State statutes, one thing is certain: The Fourteenth Amendment does not give the federal judiciary any jurisdiction under any pretense to sit in judgment over the validity of any State enacted statute any more than Article I, Section 10 had. The only remote jurisdiction the court could claim under the Fourteenth Amendment is in the event of a “willful and corrupt disregard” for the States own laws of due process – or when some State court decides white defendants will be spared execution while blacks will face death (unequal administration of laws).

Until the Fourteenth Amendment is amended to allow for federal review of all State laws in terms of whether they are just and proper, meet federal judicial standards, or whether the law promotes some substantial state interest, the court is just kidding itself in unlawfully extending its jurisdiction where it has long been prohibited.