Cruel and Unusual Arguments

In his critique of Scalia’s argument, Dworkin argues against Scalia’s interpretation of the “cruel and unusual” phrase. Scalia believes that the phrase does not forbid capital punishment for two reasons. First, the definition of cruel and unusual did not include the death penalty at the time of its writing. Second, because the Constitution in other sections allows for the possibility of the government taking life, the cruel and unusual punishment phrase in context must not forbid it.

Dworkin first argues against the second point, pointing out that the Constitution does not allow for the death penalty merely because it makes reference to it. To clarify his point, he pretends that Congress has passed a law forbidding the hunting of endangered species. Merely because Congress later institutes laws imposing limits on hunting a specific endangered animal does not mean that hunting that animal is not forbidden. While Scalia does address this argument in his response, he seems to misunderstand it. He claims that the endangered animal example is distinct from the death penalty example because the population of animals is constantly changing, and an animal may become endangered or not over time, as distinct from moral principles, which he believes are permanent. However, this rebuttal is misdirected, as Dworkin’s point is that a law of Congress that makes mention to an act but does not specifically forbid it does not allow the act if it was forbidden in prior law. Therefore, the mere mention of the government’s inability to take life without due process does not mean that they are permitted to take life even with proper due process.

Dworkin also argues against Scalia’s first argument, stating that if the founder’s wanted their definition of cruel and unusual to be dated, they would have specified it as such. He backs this up with reference to the fourth through seventh amendments, as they used similar language and yet backed it up with concrete provisions. Dworkin argues that if cruel and unusual were meant to be dated, the founders would have made concrete provisions. Especially because they believed life to be such a fundamental right, Dworkin does not believe they would so lightly and casually have allowed for the possibility of some to take it from others. Scalia’s argument against this is merely that the founders did, in fact, clarify this language when they made a provision allowing for the death penalty. However, this argument does not fully address Dworkin’s argument that an allowance for something in one law does not cancel out its prohibition in another law.