Figure 1: Racial Disparity in Prisons
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT
Table 1: Race of Executed Prisoners
*514 Table 2: No Deterrent Effect
of Executions to the National Murder Rate: 1976-1995*
American Civil Liberties Union, The Case Against the
Death Penalty (Dec. 31, 1997), available at http://www.aclu.org/capital/general/10441pub
a1. For Annika Veldre, a
wonderful psychologist, from whom I learned that deviant behavior
occurs because people are simply trying to obtain their basic and
natural human needs - in dysfunctional ways. Those might be the
only ways they know due to their experiences or are the only ways
they are capable of due to the features of their nervous system.
People with mental problems often do not realize they had any
other choice and therefore might feel justified in their actions.
Psychotherapy helps people understand their needs and their
unhealthy behaviours in order to transform them as much as
She also gave me this great
quote: "Many that live deserve death. And some die that deserve
life. Can you give it to them? Then be not too eager to deal out
death in the name of justice, fearing for your own safety. Even
the wise cannot see all ends." J.R.R. TOLKIEN, THE LORD OF THE
RINGS, at bk. 4, ch. 1. And also to our lady of the harbor: Best
loved by they who know her least.
1. This can be seen in the
Sanskrit Atman (soul, breath); c.f. German Atem (breath, though
Seele, soul). In Estonian it is also clear: hinge means both
"breath" and "soul."
HOBBES, LEVIATHAN 23 (Oskar Piest ed., 1958) ("For by art is
created that great LEVIATHAN called a COMMONWEALTH, or STATE - in
Latin CIVITAS - which is but an artificial man, though of greater
stature and strength than the natural, for whose protection and
defense it was intended; and in which, the sovereignty is an
artificial soul, as giving life and motion to the whole body .").
3. Id. at 142-43 ("This
done, the multitude so united in one person is called a
COMMONWEALTH, in Latin, CIVITAS. This is the generation of that
great LEVIATHAN (or rather, to speak more reverently, of that
mortal god) to which we owe, under the immortal God, our peace
KARL MARX, THE POVERTY OF PHILOSOPHY 119 (H. Quelch trans.,
1920) ("There is a continual movement of growth in the productive
forces, of destruction in social relations, of formation in ideas;
there is nothing immutable but the abstraction of the movement -
7 (Benjamin Jowett trans., Kessinger Pub. n.d.) ("Now,
that man is more of a political animal than bees or any other
gregarious animals is evident. Nature, as we often say, makes
nothing in vain, and man is the only animal whom she has endowed
with the gift of speech [I]t is a characteristic of man that he
alone has any sense of good and evil, of just and unjust, and
the like, and the association of living beings who have this
sense makes a family and a state.") (emphasis added).
state is a community of some kind, and every community is
established with a view to some good." Id. at 5. "[W]hen several
families are united, and the association aims at something more
than the supply of daily needs, the first society to be formed
is the village. And the most natural form of the village appears
to be that of a colony from the family ." Id. at 6 (emphasis
added). "When several villages are united in a single complete
community, large enough to be nearly or quite self-sufficing,
the state comes into existence, originating in the bare needs of
life, and continuing in existence for the sake of a good life."
Id. at 6-7.
7. See generally HOBBES,
supra note 2, at 139-42. I do not believe that there ever was a
state of nature. I take Aristotle's view that the state (society)
is natural and inevitable, and not conventional because
individuals are not self sufficient. The social contract and the
state of nature are impossible. The right to rebel against
tyrannical oppression and exploitation is an inalienable natural
right, not an alienable convention.
8. ARISTOTLE, supra note
5, at 6-7.
10. "Death, thou shalt
die!" John Donne, Death Be Not Proud (Holy Sonnet X), reprinted in
BARTLETT's POEMS FOR OCCASIONS 219 (Geoffrey O'Brien ed., 2004).
and Engels's views on the state and its withering away were
completely identical ." VLADIMIR LENIN, THE STATE AND
REVOLUTION, at ch. 5, Â§ 1 (1918), reprinted in 25 LENIN COLLECTED
WORKS 381, http://www.marxists.org/archive/lenin/works/1917/staterev/ch05.htm.
12. See, e.g., Steve
Mills & Maurice Possley, Did One Man Die for Another Man's
Crime?: "I Didn't Do It but I Know Who Did,' CHI. TRIB., Jun. 25,
2006, at C20; see also Equal Justice USA, Larry Griffin, http://www.ejusa.org/grip/reasonabledoubt/LarryGÃŒË†riffin.html.
13. See infra Statistical
Annex Table 1.
14. Capital punishment
cannot deter crimes of passion or crimes committed by the stupid.
See generally Jeffrey
Fagan, Death and Deterrence Redux: Science, Law and Causal
Reasoning on Capital Punishment, 4 OHIO ST. J. OF CRIM. L. 255
Weisberg, Death Penalty Meets Social Science: Deterrence and
Jury Behavior Under New Scrutiny (Stanford Law Sch. Annual
Review of Law & Soc. Sci., Working Paper No. 114, 2005),
available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=752044.
15. Jeffrey A. Fagan,
Capital Punishment: Deterrent Effects & Capital Costs, COLUM.
L. SCH. REP., http://www.law.columbia.edu/law_school/communications/reports/summer06/capitalpunish
("[E]ach execution can cost between $2.5 million to $5 million.").
Sherry, The Founders' Unwritten Constitution, 54 U. CHI. L. REV.
1127, 1130 (1987) (footnotes & citations omitted)
("Neither a single written document nor a category of either
natural or enacted law, the ancient constitution was an amorphous
admixture of various sources of law. It was essentially custom
mediated by reason This natural law tradition was also echoed in
the thought of various continental influences on the Americans.").
18. 2 EDWARD
COKE, THE FIRST PART OF THE INSTITUTES OF THE LAWS OF ENGLAND 344a
(Philadelphia, Robert H. Small 1853) (""Law temporall.' Which
consists of three parts, viz. First, on the common law, expressed
in our bookes of law, and judicial records. Secondly, on statutes
contained in acts and records of parliament. And thirdly, on
customes grounded upon reason, and used time out of minde.").
19. 1 id. at 110b ("[I]n
special cases, a custome may be alleged within a hamlet, a
towne, a burgh, a city, a manor, an honor, an hundred, and a
county; but a custome cannot be alleged generally within the
kingdom of England; for that is the common law.").
20. Id. ("Consuetudo
is one of the main triangles of the laws of England; those laws
being divided into common law, statute law, and custome.").
21. Id. ("Of
every custome there be two essentiall parts, time and usage;
time out of minde, (as shall be said hereafter) and continuall
and peaceable usage without lawful interruption.").
22. Id. at 81b ("[U]sage
is a good interpreter of laws, so non usage where there is no
example is a great intendment that the law will not bear it .").
23. See R.H. Helmholz,
Magna Carta and the Ius Commune, 66 U. CHI. L. REV. 297, 297
(1999) (comparing Magna Carta with the then contemporary
ius commune and suggests ius commune influenced the formulation of
24. 1 COKE, supra note
18, at 62a ("Lex est summa ratio.").
25. Id. at 97b ("And
the law, that is the perfection of reason, cannot suffer
anything that is inconvenient.").
MARCUS TULLIUS CICERO, DE REPUBLICA (51 B.C.), reprinted in
3 C.J. DE
VOGEL, GREEK PHILOSOPHY: A COLLECTION OF TEXTS WITH NOTES AND
EXPLANATIONS 177 (3d ed. 1973) ("Est
quidem vera lex, recta ratio, naturae congruens, diffusa in
omnes, constans, sempiterna, quae vocet ad officium jubendo,
vetando a fraude deterreat, quae tamen neque probos frustra
jubet aut vetat, nec improbos jubendo aut vetando movet."
(True law is right reason in accord with nature.)).
27. 1 COKE, supra note
18, at 97b ("[F]or
reason is the life of the law, nay the common law itself is
nothing else but reason gotten by long study, observation, and
experience, and not of every man's natural reason; for, Nemo
nascitur artifex. This legal reason est summa ratio.").
28. 2 id. at 183b ("[T]hough
a man can tell the law, yet if he know not the reason thereof,
he shall soone forget his superficial knowledge. But when he
findeth the right reason of the law, and so bringeth it to his
natural reason, that he comprehendeth it as his own, this will
not only serve him for the understanding of that particular
case, but of many others: for cognitio legis est copulata et
complicata; and this knowledge will long remaine with him.").
29. Id. at 395a ("Ratio
est anima legis; for then are we said to know the law, when we
apprehend the reason of the law; that is, when we bring the
reason of the law so to our owne reason, that wee perfectly
understand it as our owne; and then, and never before, we have
such an excellent and inseparable propertie and ownership
therein, as wee can neither lose it, nor any man take it from
use, and will direct us (the learning of the law is so chained
together) in many other cases. But if by your studie and
industrie you make not the reason of the law your owne, it is
not possible for you long to retaine it in your memorie.").
30. Bernard H. Siegan,
Protecting Economic Liberties, 6 CHAP. L. REV. 43, 67 (2003)
Rex v. Tooley, (1613) 80 Eng. Rep. 1055, 1059 (K.B.)).
v. United States, 356 U.S. 165, 189 (1958) (Frankfurter, J.,
Magna Carta has become is very different indeed from the
immediate objects of the barons at Runnymede.").
32. Siegan, supra note
30, at 58.
34. In re Oliver, 333
U.S. 257, 266 (1948) ("This nation's accepted practice of
guaranteeing a public trial to an accused has its roots in our
English common law heritage.").
35. BMW of N. Am. v.
U.S. 559, 587 (1996) (Breyer, J., concurring) ("This
constitutional concern, itself harkening back to the Magna Carta,
arises out of the basic unfairness of depriving citizens of life,
liberty, or property, through the application, not of law and
legal processes, but of arbitrary coercion.")
36. Hurtado v.
U.S. 516, 521-26 (1884) (interpreting due process in light
of the language and interpretations given to parts of the Magna
37. Robert E. Riggs,
Substantive Due Process in 1791, 1990 WIS. L. REV. 941, 972.
38. Id. at 971-72. In discussing chapter
39 of Magna Carta, he [Blackstone] sometimes identifies "law of
the land" with judicial procedures. Id.
39. Sherry, supra note
16, at 1132 (quoting SILAS
DOWNER, A DISCOURSE AT THE DEDICATION OF THE TREE OF LIBERTY
40. Liberty includes the
free movement of persons. "The right to travel is a part of the
"liberty' of which the citizen cannot be deprived without due
process of law under the Fifth (and Fourteenth Amendments). In
Anglo-Saxon law that right was emerging at least as early as the
Magna Carta." Bell v. Maryland, 378
U.S. 226, 293 n.10 (1964) (Goldberg, J., concurring).
41. Siegan, supra note
30, at 58-59.
Case, (1610) 77 Eng. Rep. 646, 652 (K.B.).
Case of the King's Prerogative in Saltpetre, (1606) 77 Eng. Rep.
1294, 1295 (K.B.).
Bonham's Case, 77 Eng. Rep. at 652.
46. See Mouse's
Case, (1609) 77 Eng. Rep. 1341 (K.B.).
Case of the Isle of Ely, (1610) 77 Eng. Rep. 1139, 1142 (K.B.).
Case of Monopolies, (1603) 77 Eng. Rep. 1260, 1265-66 (K.B.).
49. 1 WILLIAM
BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 140 (Univ.
of Chi. Press 1979) (1765).
50. Id. at 74-75.
51. Sherry, supra note
16, at 1128-29.
of London v. Wood, (1701) 12 Mod. Rep. 669, 678 (K.B.) ("[A]n
act of parliament can do no wrong[.]"). That is, an immoral law is
not a law. Id.
Bonham's Case, (1610) 77 Eng. Rep. 646, 652 (K.B.).
54. 1 COKE, supra note
18, at 140a ("[O]ne
of the maxims of the common law, viz. that all customs and
presumptions that be against reason are void.").
55. Id. at 115b ("The
common law has no controller in any part of it, but the high
court of parliament; and if it be not abrogated or altered by
parliament, it remains still, as Littleton here saith. The
common law appeareth in the statute of Magna Charta and other
statutes (which for the most part are affirmations of the common
law) in the originall writs, in judiciall records, and in our
bookes of termes and yeares.").
Case, 77 Eng. Rep. at 652.
57. See Vanhorne
v. Dorrance, 2 U.S. (2 Dall.) 304, 28 F. Cas. 1012 (C.C.D. Pa.
1795) (No. 16,857).
58. Glenn M. Willard,
Courts of General Jurisdiction: Judicial Power Extending to
Cases Arising Under the "Laws of Nature and of Nature's God," 7
REGENT U. L. REV. 1, 22 (1996) ("The
Bonham's Case principle was affirmed, though carefully
circumscribed, only fifty-three years before Blackstone wrote
his Commentaries [T]he principle was not categorically denied
until 1871 .").
59. Id. at 23 ("[I]n Blackstone's eighth
edition of his Commentaries, published in 1778, there is a note in
the margin of a copy, alleged to be in Blackstone's own hand, that
makes the latter part of the second sentence of the quotation
above read: "I know of no power in the ordinary forms of the
Constitution that is vested with authority to control it.' The
ninth and all later editions have this modification. Josiah Quincy
suggested that Blackstone had changed his opinion with respect to
judicial review, as a consequence of American precedents.").
60. Transcript of Oral
Argument, Jurney v. MacCracken, 294
U.S. 125 (1935) (No. 339) ("We did not create a new
Constitution as a result of the Revolution. All the
pre-Declaration of Independence conventions and resolutions show,
whether from small groups or from such sources as the Boston
Convention and the Continental Congress, the demand of the
Colonies was not for a new Government or for a new Constitution.
The complaint was that King George and his Parliament were
violating our Constitution which had come down to us through the
centuries as our heritage from our ancestors. We fought not to
free ourselves from a Constitution, but to preserve it. Ours was
not a true revolution. It was a territorial secession and a resort
to arms to preserve our existing Constitution. When we wrote our
Constitution we naturally brought forward in the main our former
unwritten Constitution. On this point an analytical comparison of
the unwritten and the written Constitutions, the facts of our
history and the weight of probabilities agree.").
61. Benjamin Franklin
argued from the ""common rights of Englishmen,' as declared by
Magna Charta, and the petition of right." 4 BENJAMIN FRANKLIN, The
Examination of Doctor Benjamin Franklin, in the British House of
Commons, Releative to the Repeal of the American Stamp Act (1766),
in THE WRITINGS OF BENJAMIN FRANKLIN 412, 445 (Albert Henry Smyth
C. Grey, Symposium on Interpreting the Ninth Amendment: The Uses
of an Unwritten Constitution, 64 CHI.-KENT L. REV. 211, 217
(1988) ( "[T]he
American Revolution was made by a generation of lawyers and
pamphleteers who believed in and were used to arguing on the
basis of a legally supreme and yet unwritten English or British
Rubenfeld, The New Unwritten Constitution, 51 DUKE L.J. 289,
289-90 (2001) ("From the very beginning, American judges
have been prepared to enforce constitutional rights that cannot
fairly be said to derive from any enumerated textual guarantee.
The Framers themselves, we are told, understood constitutional
rights in unwritten, natural-law terms, drawing on the English lex
non scripta and "ancient constitution" traditions passed down to
them by Blackstone and others.").
64. See, e.g., Dollar
Sav. Bank v. United States, 86 U.S. (19 Wall.) 227, 239
rule thus settled respecting the British Crown is equally
applicable to this government It may be considered as settled
that so much of the royal prerogatives as belonged to the King
in his capacity of parens patriae, or universal trustee, enters
as much into our political state as it does into the principles
of the British constitution.")
65. Glasser v. United
U.S. 60, 84 (1942) ("Since it was first recognized in Magna
Carta, trial by jury has been a prized shield against oppression,
but, while proclaiming trial by jury as "the glory of the English
law,' Blackstone was careful to note that it was but a
"privilege.' Our Constitution transforms that privilege into a
right in criminal proceedings in a federal court." (citation
66. E.g., Chambers v.
U.S. 227, 237 n.10 (1940) (comparing Bill of Rights with the
Habeas Corpus Act).
67. Riggs, supra note 37,
at 969 ("Given
the common perception of Magna Carta as a protection against
arbitrary government, it is not surprising that the colonists
also resorted to the Great Charter in their controversies with
king and Parliament, particularly over the right to tax.").
68. Twining v. New
U.S. 78, 107 (1908) (naming Bill of Rights and Magna Carta).
"[T]he great instruments in which we are accustomed to look for
the declaration of the fundamental rights ." Id.
69. Paul Finkelman,
The Ten Commandments on the Courthouse Lawn and Elsewhere, 73
FORDHAM L. REV. 1477, 1511 (2005) ("At the time of the
American Revolution, the substantive provisions of the Magna Carta
and the English Bill of Rights became central to the process of
the drafting of the state constitutions and, later, the United
States Constitution. The United States Constitution and the Bill
of Rights incorporated many of the substantive provisions of both
documents, sometimes word-for-word.")
211 U.S. at 105 ("Magna Carta, "a sacred text, the nearest
approach to an irrepealable, "fundamental statute" that England
has ever had."').
71. Hurtado v.
U.S. 516, 529 (1996) ("[O]wing to the progressive
development of legal ideas and institutions in England, the words
of Magna Charta stood for very different things at the time of the
separation of the American colonies from what they represented
72. Id. at 531-32. "The
concessions of Magna Charta were wrung from the King as guaranties
against the oppressions and usurpations of his prerogative." Id.
Applied in England only as
guards against executive usurpation and tyranny, here they have
become bulwarks also against arbitrary legislation; but, in that
application, as it would be incongruous to measure and restrict
them by the ancient customary English law, they must be held to
guarantee not particular forms of procedure, but the very
substance of individual rights to life, liberty, and property.
Id. at 532.
73. See, e.g., State Farm
Mut. Auto. Ins. Co. v. Campbell, 538
U.S. 408, 416 (2003); see supra text accompanying note 35.
74. E.g., Miller v.
P.2d 531, 536 (Cal. 1944).
75. Davidson v. City of
New Orleans, 96
U.S. 97, 101 (1878); Munn v. Illinois, 94
U.S. 113, 123 (1876).
76. See, e.g., Smith v.
Mercy Hosp. & Med. Ctr., 560
N.E.2d 1164, 1169 (Ill. App. Ct. 1990).
77. Davidson, 96 U.S. at
101 ("The equivalent of the phrase "due process of law,' according
to Lord Coke, is found in the words "law of the land,' in the
Great Charter ."); Wichita Council v. Sec. Benefit Ass'n, 28 P.2d
976, 980 (Kan. 1934); Ex parte Sizemore, 8
S.W.2d 134, 136 (Tex. Crim. App. 1928); see also Den v.
Hoboken Land & Improvement Co. (Murray's Lessee), 59 U.S. (18
How.) 272, 276 (1856); Motor Equip. Co. v. Winters, 69
P.2d 23, 28 (Kan. 1937); Jordan v. Gaines, 8
A.2d 585, 587 (Me. 1939); State v. Ballance, 51
S.E.2d 731, 769 (N.C. 1949); State v. McClintick, 23 Ohio
Misc. 194, 198 (1970).
Lessee, 59 U.S. (18 How.) at 276.
79. See generally An
Act Declaring the Rights and Liberties of the Subject, and
Settling the Succession of the Crown, 1688, 1 W. & M.,
c. 2 (Eng.).
80. Harmelin v. Michigan,
U.S. 957, 966 (1991).
81. Solem v. Helm, 463
U.S. 277, 284-85 (1983).
Indus. v. Kelco Disposal, Inc., 492
U.S. 257, 266 (1989). ("[I]t is clear that the Eighth
Amendment was "based directly on Art I, Â§ 9, of the Virginia
Declaration of Rights,' which "adopted verbatim the language of
the English Bill of Rights.' Section 10 of the English Bill of
Rights of 1689, like our Eighth Amendment, states that "excessive
Bail ought not to be required, nor excessive Fines imposed; nor
cruel and unusual Punishments inflicted."' (citations omitted)).
83. Carlson v. Landon, 342
U.S. 524, 545 (1952).
84. Ford v. Wainwright, 477
U.S. 399, 405 (1986).
85. Trop v. Dulles, 356
U.S. 86, 101 (1958).
86. Hurtado v.
U.S. 516, 530-31 (1996) ("The Constitution of the United
States was ordained, it is true, by descendants of Englishmen, who
inherited the traditions of English law and history; but it was
made for an undefined and expanding future, and for a people
gathered and to be gathered from many nations and of many tongues.
And while we take just pride in the principles and institutions of
the common law, we are not to forget that in lands where other
systems of jurisprudence prevail, the ideas and processes of civil
justice are also not unknown. Due process of law, in spite of the
absolutism of continental governments, is not alien to that code
which survived the Roman Empire as the foundation of modern
civilization in Europe, and which has given us that fundamental
maxim of distributive justice - suum cuique tribuere. There is
nothing in Magna Charta, rightly construed as a broad charter of
public right and law, which ought to exclude the best ideas of all
systems and of every age; and as it was the characteristic
principle of the common law to draw its inspiration from every
fountain of justice, we are not to assume that the sources of its
supply have been exhausted. On the contrary, we should expect that
the new and various experiences of our own situation and system
will mould and shape it into new and not less useful forms.").
87. MARCUS TULLIUS
CICERO, TREATISE ON THE COMMONWEALTH, in 1 THE POLITICAL WORKS OF
MARCUS TULLIUS CICERO (Francis Barham trans., London, Edmund
Spettigue 1841-42), available at http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php/title=546&layout=html
is a true law, a right reason, conformable to nature, universal,
unchangeable, eternal, whose commands urge us to duty, and whose
prohibitions restrain us from evil. Whether it enjoins or
forbids, the good respect its injunctions, and the wicked treat
them with indifference. This law cannot be contradicted by any
other law, and is not liable either to derogation or abrogation.
Neither the senate nor the people can give us any dispensation
for not obeying this universal law of justice. It needs no other
expositor and interpreter than our own conscience. It is not one
thing at Rome and another at Athens; one thing to-day and
another to-morrow; but in all times and nations this universal
law must for ever reign, eternal and imperishable.").
88. Sherry, supra note
16, at 1138 (quoting Alexander Hamilton).
HAMILTON, The Farmer Refuted, in 1 THE PAPERS OF ALEXANDER
HAMILTON 81, 122 (Harold C. Syrett & Jacob E. Cooke eds.,
Sherry, Commentary on the Symposium Interpreting the Ninth
Amendment: The Ninth Amendment: Righting an Unwritten
Constitution, 64 CHI.-KENT. L. REV. 1001, 1003 (1988).
91. Sherry, supra note
16, at 1132 (citation omitted).
92. Id. at 1143-44 ("Commonwealth
v. Caton, a 1782 Virginia case is the first reported case in the
United States in which a court reviewed a statute for
constitutionality. Caton and others had been sentenced to death
for treason under a 1776 statute that, in addition to defining
the treason, removed the pardon power from the executive to the
legislature. The lower house of the legislature (the House of
Delegates) passed a resolution pardoning the prisoners, but the
Senate refused to concur. When the attorney general moved the
court for authority to execute the prisoners, Caton and his
fellows responded that the 1776 statute must either be
interpreted to grant pardon power to the House of Delegates
alone or be held unconstitutional. The Virginia Court of
Appeals, to which the case was sent by the trial court because
of its novelty and difficulty, found the statute constitutional
and held the singlehouse attempt at pardon ineffective.")
Robin v. Hardaway, Jeff. 109, 114 (Va. 1772) (citing Coke).
94. Bernard H. Siegan, Protecting Economic Liberties, 6 CHAP. L.
REV. 43, 73-74 (2003). "[A]s Alexander Hamilton put it in
The Federalist Papers No. 84, the United States Constitution was a
bill of rights. It did not grant the national government any power
to deprive the people of their common law rights." Id. at 73.
FEDERALIST NO. 84 (Alexander Hamilton).
CONST. amend. IX ("The enumeration in the Constitution, of
certain rights, shall not be construed to deny or disparage others
retained by the people.").
97. JOHN BOUVIER, A LAW
DICTIONARY 154 (Philadelphia, J.B. Lippincott & Co. 1874) ("Quotiens
dubia interpretatio libertatis est, secundum libertatem
respondendum erit. Whenever there is a doubt between liberty and
slavery, the decision must be in favor of liberty.").
98. 4 BLACKSTONE, supra
note 49, at 66, 73 ("International law is "deducible by natural
reason,' and each state shall "aid and enforce the law of nations,
as part of the common law; by inflicting an adequate punishment
upon offenses against that universal law."').
99. William C. Bradford,
The Changing Laws of War: Do We Need a New Legal Regime After
September 11?, 79 NOTRE DAME L. REV. 1365, 1429 n. 248
(2004) ("[T]he English common law regarded international law
as a species of natural law - and therefore a part of the domestic
law - that bound all individuals and states consistent with the
principle that natural law resided at the apex of the hierarchy of
sources of law both domestic and international.").
100. Martin v. Lessee of
U.S. 367, 403 (1842) (argument of appellant, who won at the
U.S. Supreme Court).
101. People v. Bull, 705
N.E.2d 824, 846-47 (Ill. 1998) (Harrison, J., concurring in
part and dissenting in part) (noting death penalty
unconstitutional and considering foreign judicial opinion).
102. See The Paquete
U.S. 677, 700 (1900) (stating that "international law is a
part of our law"); see also Hilao v. Estate of Marcos (In re
Estate of Ferdinand E. Marcos, Human Rights Litigation), 25
F.3d 1467, 1474 (9th Cir. 1994) (stating that previous
courts did not hold that "international law is not part of federal
common law if there are no contradictory federal statutes");
Filartiga v. Pena-Irala, 630
F.2d 876, 885 (2d Cir. 1980) ("[T]he law of nations... has
always been part of the federal common law.").
CONST. art. VI ("This Constitution and all treaties made, or
which shall be made, under the authority of the United States,
shall be the supreme law of the land; and the judges in every
state shall be bound thereby, anything in the Constitution or laws
of any State to the contrary notwithstanding.").
104. State v.
A.2d 144, 226-27 (N.J. 2001) (Long, J., concurring in part
and dissenting in part) ("The international community has moved
more quickly toward an understanding of the flaws and dangers
inherent in any capital punishment scheme.").
105. Gulf, Colo. &
Santa Fe Ry. Co. v. Ellis, 165
U.S. 150, 159-60 (1897).
106. Filan v. Martin, 684
P.2d 769, 773 (Wash. Ct. App. 1984).
107. See, e.g., id.; Am.
Fed"n of Labor v. Buck's Stove & Range Co., 33 App. D.C. 83
ex rel. Tyroler v. Warden of City Prison, 51 N.E. 1006 (N.Y.
108. Schick v. United
U.S. 65, 69 (1904) ("Blackstone's
Commentaries are accepted as the most satisfactory exposition of
the common law of England [U[ndoubtedly the framers of the
Constitution were familiar with it.").
109. Finkelman, supra
note 69, at 1500-01.
110. E.g., Pollock v.
Farmers' Loan & Trust Co., 158
U.S. 601 (1895); McPherson v. Blacker, 146
U.S. 1 (1892); Rhode Island v. Massachusetts, 37
U.S. 657 (1838); Cohens v. Virginia, 19
U.S. 264 (1821); McCulloch v. Maryland, 17
U.S. 316 (1819). In ascertaining the meaning of the phrase
"republican form of government" the debates of the constitutional
conventions and The Federalist Papers are of great importance, if
111. Randolph J. Haines,
Getting to Abrogation, 75 AM. BANKR. L.J. 447, 451 (2001).
Blackstone had defined the basic
rights of Englishmen - those set forth in the Magna Carta, the
Habeas Corpus Act, the Petition of Right, and the English Bill
of Rights - as a collection of "privileges" and "immunities,"
and explained why he chose each of those terms: "The rights
themselves, thus defined by these several statutes, consist in a
number of private immunities; that residuum of natural liberty,
which is not required by the laws of society to be sacrificed to
public convenience; or else those civil privileges, which
society hath engaged to provide, in lieu of the natural
liberties so given up by individuals."
Id. (quoting 1 BLACKSTONE, supra
note 49, at 125-29).
112. See Malinski v. New
U.S. 401, 413-14 (Frankfurter, J., concurring).
113. ROBERT A. FERGUSON,
LAW AND LETTERS IN AMERICAN CULTURE 11 (1984) ( "All of our
formative documents - the Declaration of Independence, the
Constitution, the Federalist Papers, and the seminal decisions of
the Supreme Court under John Marshall - were drafted by attorneys
steeped in [Blackstone's Commentaries]."); David J.
Bederman, The Curious Resurrection of Custom: Beach Access and
Judicial Takings, 96 COLUM. L. REV. 1375, 1382 (1996); see
also Martha J. Dragich,
Will the Federal Courts of Appeals Perish if They Publish? Or
Does the Declining Use of Opinions to Explain and Justify
Judicial Decisions Pose a Greater Threat?, 44 AM. U. L. REV.
757, 771-72 (1995); Mark Spatz,
Comment, Shame's Revival: An Unconstitutional Regression, 4 U.
PA. J. CONST. L. 827, 835 (2002) ("Blackstone's
treatise, Commentaries on the Laws of England, served as the
source of law for American courts.").
114. J. Stanley McQuade,
Ancient Legal Maxims and Modern Human Rights, 18 CAMPBELL L.
REV. 75, 75 (1996) ("Until
the middle of the nineteenth century books were still being
published which appeared to regard the ancient maxims as central
pillars of the law. The teaching of the law was organized round
them. They were cited reverentially in court. Since that time
the maxims have steadily declined in importance.").
115. See Geoffrey P. Miller,
Pragmatics and the Maxims of Interpretation, 1990 WIS. L. REV.
1179, 1179-81 (1990).
116. See KARL
N. LLEWELLYN, THE COMMON LAW TRADITION 521-35 (4th prtg.
117. See, e.g., Larry
Kramer, Rethinking Choice of Law, 90 COLUM. L. REV. 277 (1990).
118. Freeman v.
Caldwell, 10 Watts 9, 10 (Pa. 1840).
119. BOUVIER, supra note
97, at 116 ("Maxims
in law are somewhat like axioms in geometry.").
120. Liebig Mfg. Co. v.
A. 902, 907 (Del. Ch. 1896) ("These principles are legal
maxims or axioms essential to the existence of regulated
society."); Rice v. State, 7
Ind. 264, 265 (1855) ("There are some propositions that may
be regarded, we think, at this day, as being settled; as having
passed into the rank of maxims or axioms in American
121. BOUVIER, supra note
97, at 123 ("When the death of a human being may be concerned, no
delay is long. When the question is concerning the life or death
of a man, no delay is too long to admit of inquiring into
122. See Bradford, supra
123. Kristi Tumminello
Prinzo, The United States - "Capital" of the World:
An Analysis of Why the United States Practices Capital
Punishment While the International Trend Is Towards Its
Abolition, 24 BROOK. J. INT'L L. 855, 856 (1999) (citing
Ursula Bentele, Race and Capital Punishment in the United
States and South Africa, 19 BROOK. J. INT'L L. 235, 237 (1993)).
INTERNATIONAL, FACTS AND FIGURES ON THE DEATH PENALTY 5-6 (Jan. 1,
2007), available at http://www.amnesty.org/en/alfresco_asset/c3d650aa-a2a8-11dc-8d74-6f45f39984e5/act500022007en.pdf.
125. E.g., Atkins v.
U.S. 304, 321 (2002).
126. E.g., Roper v.
U.S. 551, 574-75 (2005).
127. E.g., Woodson v.
North Carolina, 428
U.S. 280, 301-04 (1976).
128. See, e.g., Coker v.
U.S. 584, 598-600 (1977) (finding the death penalty an
unconstitutionally disproportionate sentence for the crime of rape
of an adult woman).
129. Breard v. Greene, 523
U.S. 371, 372-74 (1998) (per curiam).
130. Vienna Convention
on Consular Relations (Para. v. U.S.), 1998
I.C.J. 248, 258 (Apr. 9).
131. In Beard, the
Supreme Court indicated that the U.S. secretary of state asked
Virginia to stay the execution, pending the result of the ICJ
case. The Court found that it was unable to intervene because of
the Eleventh Amendment. That view was rather uncreative. The
Eleventh Amendment divests jurisdiction from the federal courts
over cases in law and equity. It does not refer to cases before
the admiralty courts. The admiralty courts were those which
specialized in international law at the time. Since the Eleventh
Amendment does not divest the federal government of jurisdiction
over admiralty cases, a foreign plaintiff could bring a claim
under international law (as opposed to national law!) before the
federal courts. Moreover, as far as international law is
concerned, the internal constitution of any state is irrelevant to
the international obligations of that state. Additionally, U.S.
states ceded their treaty making powers to the federal government.
Members of federations have, at most, limited international legal
personality. For a contemporary view of these purely internal
questions of U.S. constitutional structure, see Thomas
Healy, Is Missouri v. Holland Still Good Law? Federalism and the
Treaty Power, 98 COLUM. L. REV. 1726.
132. LaGrand Case
(F.R.G. v. U.S.), 2001
I.C.J. 466 (June 27).
133. Id. at 515-16.
135. See Linda
Greenhouse, Supreme Court to Hear Appeal of Mexican Death Row
Inmate, N.Y. TIMES, May 1, 2007, at A16.
136. Medellin v. Texas,
No. 06-984 (U.S. argued Oct. 10, 2007).
137. Avena & Other
Mexican Nationals (Mex. v. U.S.), 2004
I.C.J. 12 (Mar. 31).
138. Id. at 53-54.
139. Charles Lane, U.S.
Quits Pact Used in Capital Cases: Foes of Death Penalty Cite
Access to Envoys, WASH. POST, Mar. 10, 2005, at A1 ("The United
States proposed the protocol in 1963 and ratified it - along with
the rest of the Vienna Convention - in 1969.").
140. Ian Austen,
Canadian Manual Has U.S. on Torture List, N.Y. TIMES, Jan. 18,
2008, at A10; Canada Puts U.S. on "Torture List," BBC NEWS, Jan.
18, 2008, http://news.bbc.co.uk/1/hi/world/americas/7195276.stm;
U.S. Acknowledges Torture at Guantanamo; in Iraq, Afghanistan -
U.N., AFX NEWS, June 24, 2005; American Civil Liberties Union,
Autopsy Reports Reveal Homicides of Detainees in U.S. Custody, http://action.aclu.org/torturefoia/released/102405/
(listing autopsy reports of persons tortured to death that were
obtained from the Department of Defense under Freedom of
Information Act requests.) (last visited **
Feb. 3, 2008). The U.S. military has admitted that it has tortured
prisoners. See, e.g., Torture of Iraqi POWs, http://www.whatreallyhappened.com/torture_
pow.html (last visited **
Jan. 24, 2008). Salon has also documented graphic evidence of U.S.
torture of prisoners of war. See Joan Walsh, The Abu Ghraib Files,
SALON, Oct. 2003, http://www.salon.com/news/abu_
ghraib/2006/03/14/introduction/. The CIA has admitted to near
drowning of intentional prisoners (so called waterboarding). CIA
Admits Waterboarding Inmates, BBC NEWS, Feb. 5, 2008, available at
141. See Elizabeth Burleson,
Juvenile Execution, Terrorist Extradition, and Supreme Court
Discretion to Consider International Death Penalty
Jurisprudence, 68 ALB. L. REV. 909, 910 (2005).
Soering v. United Kingdom, 1989 E.C.H.R. (ser. A) No. 161,
at 14, available at http://www.worldlii.org/eu/cases/ECHR/1989/14.html.
144. Alan M. Dershowitz,
The Torture Warrant: A Response to Professor Strauss, 48 N.Y.L.
SCH. L. REV. 275, 277 (2003). "I am generally against
torture as a normative matter, and I would like to see its use
minimized." Id. (emphasis added). "Minimized" is no synonym for
"abolished." Though Dershowitz may not know it, torture is illegal
under international law and is a violation of jus cogens. See
generally HUMAN RIGHTS WATCH, SUMMARY OF INTERNATIONAL AND U.S.
LAW PROHIBITING TORTURE AND OTHER ILL-TREATMENT OF PERSONS IN
CUSTODY (2004), http://www.hrw.org/english/docs/2004/05/24/usint8614.htm.
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (discussing
civil causes of action in the United States based on international
law). So Dershowitz's proposal for torture warrants is not just a
fascist affront to human rights, it is also quite illegal.
145. See Arthur J.
Goldberg & Alan M.
Dershowitz, Declaring the Death Penalty Unconstitutional, 83
HARV. L. REV. 1773, 1775 (1970).
146. This argument was
adopted suddenly, in 1972, in Furman v. Georgia, 408
U.S. 238, 239-40 (1972) (per curiam).
147. See In re Kemmler,
U.S. 436, 447 (1890) ("Punishments are cruel when they
involve torture or a lingering death; but the punishment of death
is not cruel within the meaning of that word as used in the
U.S. 153 (1976).
149. See Steven G. Calabresi,
The Tradition of the Written Constitution: Text, Precedent, and
Burke, 57 ALA. L. REV. 635, 664-65 (2006).
150. See Coker v.
U.S. 584, 598-600 (1977) (declaring the death penalty an
unconstitutionally disproportionate sentence for the crime of rape
of an adult woman).
151. See, e.g., Enmund
v. Florida, 458
U.S. 782 (1982) (finding death penalty unconstitutional
where defendant merely participated in the felony to which the
murder charge was imputed).
152. See Rudolph J. Gerber,
Death Is Not Worth It, 28 ARIZ. ST. L.J. 335, 350 (1996)
("[N]o proof exists that general deterrence results from capital
punishment as opposed to life imprisonment."); Michael L. Radelet
& Ronald L. Akers,
Deterrence and the Death Penalty: The Views of the Experts, 87
J. CRIM. L. & CRIMINOLOGY 1, 10 (1996) ("[T]he death
penalty does, and can do, little to reduce rates of criminal
violence."). But see Adam Liptak, Does Death Penalty Save Lives? A
New Debate, N.Y. TIMES, Nov. 18, 2007, Â§ 1, at 1 (citing recent
studies that have found a minor deterrent effect associated with
the death penalty).
153. See generally
Furman v. Georgia, 408
U.S. 238, 301-05 (1972) (Brennan, J., concurring).
154. See generally ACLU,
THE CASE AGAINST THE DEATH PENALTY (1997), http://www.aclu.org/capital/general/10441pub19971231.html.
155. Id. For example,
the federal prison labor program, UNICOR, paid wages ranging from
$0.23 per hour to $1.15 per hour in 2001. PETER WAGNER, THE PRISON
INDEX: TAKING THE PULSE OF THE CRIME CONTROL INDUSTRY Â§ 3 (2003),
available at http://www.prisonpolicy.org/prisonindex/prisonlabor.html.
156. See generally ACLU,
supra note 154.
157. For example, in
Washington State, the trial of a murder case pursuing the death
penalty is approximately $470,000 more expensive than trying the
same case as a non-capital case. Direct appeals cost approximately
$100,000 more in death penalty cases than in non-death penalty
murder cases. WASH. STATE BAR ASS'N, FINAL REPORT OF THE DEATH
PENALTY SUBCOMMITTEE OF THE COMMITTEE ON PUBLIC DEFENSE 18-20
(2006), available at http://www.wsba.org/lawyers/groups/finalreportbog.pdf.
158. See generally
Jeffrey R. Kling & Alan B. Krueger, Costs, Benefits and
Distributional Consequences of Inmate Labor (Princeton Univ.
Indus. Rel. Section, Working Paper No. 449, 2001), available at
159. South Carolina
Department of Corrections presents a representative example of
three operating programs:
working in this [traditional] program may receive a wage of up
to $.35 per hour [I]nmate wages can be negotiated with private
sector companies since it does not fall under Federal Minimum
Inmates [in the Service
Program] earn from $.35 to $1.80 per hour. . . .
in the Prison Industry Enterprise Program] acknowledge that
taxes, victim compensation and room and board will be deducted
from their gross pay. Pay ranges from $5.15 to $10.00 per hour.
2,233 inmates are working in Prison Industries. The Prison
Industries Program is completely self-supporting, providing
valuable training for the inmates while generating funding for
S.C. Dep't of Corr., Traditional,
Prison Industries (2007), http://www.doc.sc.gov/programs/pi.jsp
(emphasis added). Of course, prison labor is not subject to
OSHA, nor are the laborers able to quit, strike, or even
complain. And it just so happens that the majority of prison
laborers are black and hispanic. One can fairly call it a modern
form of the slave plantation, but it is more economically
productive than the death penalty and the lesser of two bads.
160. See ROY
WALMSLEY, KING'S COLLEGE, WORLD PRISON POPULATION LIST (6th
ed. 2005), available at http://www.kcl.ac.uk/depsta/rel/icps/world-prison-population-list-2005.pdf;
see also Gail Russell Chaddock, U.S. Notches World's Highest
Incarceration Rate, CHRISTIAN SCI. MON., Aug. 18, 2003, at 2
("More than 5.6 million Americans are in prison or have served
time there, according to a new report by the Justice Department
released Sunday. That's 1 in 37 adults living in the United
States, the highest incarceration level in the world If current
trends continue, it means that a black male in the United States
would have about a 1 in 3 chance of going to prison during his
lifetime. For a Hispanic male, it's 1 in 6; for a white male, 1 in
17."). The land of the free and home of the brave has been turned
into the land of the fear and the home of the slaves. Patriots,
those who love liberty, ought to organize against that.
Enforcement Officials Call on New York State Legislature to Keep
New York's Unjust Death Penalty Law off the Books, NEW
YORKERS AGAINST DEATH PENALTY, Aug. 1, 2004, http://www.nyadp.org/main/police811.html?news=50.
162. United States v.
F. Supp. 2d 416, 420 (S.D.N.Y. 2002).
163. See infra
Statistical Annex Table I.
164. See Furman v.
U.S. 238, 256 (1972) (Douglas, J., concurring) (arguing that
a law that yields discriminatory results "has no more sanctity"
under the Eighth Amendment than a law effecting those same results
through express terms).
165. See, e.g., Gregg v.
U.S. 153, 177-78 (1976) (plurality opinion) ("For nearly two
centuries, this Court, repeatedly and often expressly, has
recognized that capital punishment is not invalid Per se.").
166. McCleskey v. Kemp,
U.S. 279, 292 (1987) (emphasis added) (quoting Whitus v.
U.S. 545, 550 (1967)).
167. See id. at 315-18.
168. See Andrea
Shapiro, Unequal Before the Law: Men, Women and the Death
Penalty, 8 AM. U. J. GENDER SOC. POL'Y & L. 427, 428
the victims of homicide were White, it was statistically likely
that the defendant would be convicted and sentenced to death.")
(citing David C. Baldus et al., Law and Statistics in Conflict:
Reflections on McCleskey v. Kemp, in CAPITAL PUNISHMENT
AND THE JUDICIAL PROCESS 147, 148 tbl.13.2 (1994)).
F. Supp. 1005, 1025 (E.D. Ark. 1988) (rejecting plaintiffs'
standing but nonetheless recognizing the constitutional
requirement of mandatory review for death sentences).
170. Woodson v. North
U.S. 280, 301-04 (1976).
171. Coker v. Georgia, 433
U.S. 584 (1977) (finding death penalty unconstitutionally
disproportionate sentence for crime of rape of an adult woman).
172. Atkins v. Virginia,
U.S. 304, 321 (2002).
173. See id.
U.S. 551, 574-75 (2005).
175. Thompson v.
U.S. 815, 822-23 (1988) (holding death penalty per se
unconstitutional where criminal is under sixteen years of age when
543 U.S. at 564, 577-78.
on the Rights of the Child art. 37, adopted Nov. 20, 1989,
1577 U.N.T.S. 3 ("Neither capital punishment nor life imprisonment
without possibility of release shall be imposed for offences
committed by persons below eighteen years of age.").
178. Roper, 543 U.S. at
179. Calabresi, supra
note 149, at 668.
180. See generally Neder
v. United States, 527
U.S. 1, 30-31 (1999) (Scalia, J., concurring in part and
dissenting in part).
William Blackstone, the Framers'
accepted authority on English law and the English Constitution,
described the right to trial by jury in criminal prosecutions as
"the grand bulwark of [the Englishman's] liberties secured to
him by the great charter." One of the indictments of the
Declaration of Independence against King George III was that he
had "subject[ed] us to a Jurisdiction foreign to our
Constitution, and unacknowledged by our Laws" in approving
legislation "[f]or depriving us, in many Cases, of the Benefits
of Trial by Jury." The right to trial by jury in criminal cases
was the only guarantee common to the 12 state constitutions that
predated the Constitutional Convention, and it has appeared in
the constitution of every State to enter the Union thereafter.
Id. (citations omitted).
181. Trial by jury was
the first and most essential feature of the English constitution:
passages in Judge Blackstone's Commentaries, from the variety of
authorities to which he refers, and from many others of the
greatest reputation, it most clearly appears, that the trial by
jury was ever esteemed a first, a fundamental, and a most
essential principle, in the English constitution. From England
this sacred right was transferred to this country, and hath
continued, through all the changes in our government, the firm
basis of our liberty, the fairest inheritance transmitted by our
182. The right of trial
by jury descended from England to the United States. Id. at 17-18.
183. Glasser v. United
U.S. 60, 84-85 (1942).
184. See generally Steve
Lysander Spooner, Jury Nullification, and Magna Carta, 22
QUINNIPIAC L. REV. 651 (2004). See also Georgia v.
Brailsford, 3 U.S. (3 Dall.) 1, 3-4 (1794) (recognizing the jury's
right "to determine the law as well as the fact in controversy").
185. See generally 1
COKE, supra note 18, at 155a ("[U]sage
and ancient course maketh law. And it seemeth to me, that the
law in this case delighteth herselfe in the number of 12; for
there must not onely be 12 jurors for the tryall of matters of
fact, but 12 judges of ancient time for tryall of matters of law
in the Exchequer Chamber.").
186. Smith v. Texas, 311
U.S. 128, 130 (1940) ("It is part of the established
tradition in the use of juries as instruments of public justice
that the jury be a body truly representative of the community.").
187. William Sharpe McKechnie,
MAGNA CARTA: A COMMENTARY ON THE GREAT CHARTER OF KING JOHN,
WITH AN HISTORICAL INTRODUCTION 377-78 (1914) (citations
The need for "a judgment of
peers" was recognized at an early date in England [T]he "peers"
of a Crown tenant were his fellow Crown tenants, who would
normally deliver judgment in the Curia Regis; while the "peers"
of the tenant of a mesne lord were the other suitors of the
Court Baron of the manor.
Id. Also, Jews might be judged by
those of their own religion, and a foreign merchant by a jury
composed partly of those of his country. Id. at 378; see also
F.M. Powicke, Per Iudicium Parium Vel Per Legem Terrae, in MAGNA
CARTA COMMEMORATION ESSAYS 96, 101-02 (Henry Elliott Malden ed.,
188. See Furman v.
U.S. 238, 240, 305, 358-59 (1972) (Justices Brennan and
Marshall finding the death penalty unconstitutional per se).
189. Trop v. Dulles, 356
U.S. 86, 101 (1958) (plurality opinion) ("The [Eighth]
Amendment must draw its meaning from the evolving standards of
decency that mark the progress of a maturing society.").
J. Brennan, Jr., Constitutional Adjudication and the Death
Penalty: A View from the Court, 100 HARV. L. REV. 313, 330
(1986) (arguing that the death penalty is per se unconstitutional
as an affront to human dignity).
191. Cf. THOMAS
AQUINAS, SUMMA THEOLOGICA 1048 (Fathers of the English
Dominican Province trans., 2d rev. ed. 1920) ("[A] law that is not
just, seems to be no law at all." (citing AUGUSTINE,
DE LIBERO ARBITRIO, I, 5)).