Glossip v. Gross: Getting the Logic Right?

If we agreed that “no woman shall ever launch a nuclear weapon” does it then follow that it is okay for a man to do so? It seems that Scalia answers in the affirmative.

Scalia (pdf):

Mind you, not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible. The reason is obvious: It is impossible to hold unconstitutional that which the Constitution explicitly contemplates. The Fifth Amendment provides that “[n]o person shall be held to answer for a capital… crime, unless on a presentment or indictment of a Grand Jury,” and that no person shall be “deprived of life… without due process of law.”

He argues that because the Constitution says the government cannot execute unless if meets certain conditions, that the Constitution also permits it to execute so long as those conditions are met. I am willing to concede that the Founders thought that the death penalty was constitutional. And it would be one thing if the Constitution enumerated the power (”The government shall have the power to deprive a person of life withstanding due process of law.“

However, Scalia argues that the Constitution permits it to execute even if the government can find no way around some other constitutional barrier. There must always be a constitutional way for it to kill. From the Opinion of the Court (emphasis added):

Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, “[i]t necessarily follows that there must be a [constitutional] means of carrying it out.” Id., at 47. And because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain. Ibid. After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.

From Breyer’s dissent:

The relevant legal standard is the standard set forth in the Eighth Amendment. The Constitution there forbids the “inflict[ion]” of “cruel and unusual punishments.” Amdt. 8. The Court has recognized that a “claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the ‘Bloody Assizes’ or when the Bill of Rights was adopted, but rather by those that currently prevail.” Atkins v. Virginia, 536 U. S. 304, 311 (2002). Indeed, the Constitu­tion prohibits various gruesome punishments that were common in Blackstone’s day. See 4 W. Blackstone, Com­mentaries on the Laws of England 369–370 (1769) (listing mutilation and dismembering, among other punishments).

Notice the conflicting arguments:

• Scalia: It is constitutional, therefore there must be a constitutional means of execution.
• Breyer: If there is no constitutional means, then it is unconstitutional.

Need I say that I find Breyer’s the more compelling argument? Regardless, if Scalia had not assumed his answer, he might have argued “If it is constitutional, then there must be a constitutional means.” But that would not differ in logic from Breyer’s argument.

I am not prepared to argue that the government is barred from exerting any inferred power which may come into conflict with any part of the Constitution. There are always questions of power and rights, but I find Scalia’s argument very strange.