National Consensus by State Counting

Abstract

A core tenet of interpretivism of particular relevance to this chapter is consistency, or ‘coherence in principle’. Short of a nationwide referendum on every permutation of every issue—in the death penalty context this could include race, gender, age, methods, appeals, intellectual capacity, aggravation, mitigation—weighting citizens equally in a way that upholds the one person, one vote principle is impractical. The next best alternative in the Eighth Amendment’s adjudicative context could therefore be to gauge the harmony between state legislatures, the elected representatives of the people. That process is reflected by the Constitution’s procedure for legislative ratification of its Amendments, requiring a supermajority (two-thirds) of the votes in both houses of Congress to propose, and three-quarters to approve an Amendment, or an equally burdensome state convention option. In the judicial sphere, specifically with respect to punishments clause interpretation, it is that method—majoritarianism—that has found favour with a majority of the justices. Majoritarianism in this setting manifests as jurisdictional “state counting”, where the 52 American systems are considered to symbolise national consensus on a given legal issue. This chapter outlines the precedent for majoritarianism in the Court’s punishments jurisprudence (section “Precedent”), followed by an interpretivist assessment (section “An Interpretive Assessment”), and finally an application to solitary confinement (section “Solitary Confinement: A Jurisdictional Assessment”).