By Morris B. Hoffman[*]
In their recent essay, Professors Berman and Bibas stake out terribly important ground, recognizing and then wonderfully articulating an essential duality between justice and emotion, and between law and morality, all in the context of the constitutionality of the death penalty for child rape as raised in Kennedy v. Louisiana.
I do not express any opinion on whether their insight should have driven a different result in Kennedy—after all, there was the constitutional question of whether due process, or the Eighth Amendment, means that only death justifies death. True, labeling that inquiry as constitutional does not rescue us or the members of the Court from the “normative Furies,” to paraphrase Professors Berman and Bibas. Indeed, they are right to point out that those Furies are precisely what drove some state legislatures to make death the penalty for raping children, that such a journey is deeply personal and one about which reasonable and honorable legislators may disagree, and that this is therefore a fray into which the judicial branch should be especially leery to enter.
Still, the ultimate decision in Kennedy required the Court’s full range of constitutional tools, including, but certainly not limited to, its ability to recognize a state’s legitimate, emotional, and democratic expressions of deeply held stigma. Those of us who care about constitutional processes—not just outcomes—believe that some other tools, including text, history, and stare decisis should also play into the mix.