There are few areas of law whose jurisprudence has been fully developed within a period of the last forty years. Eighth Amendment jurisprudence relative to the death penalty in the United States is such an area of law. We will explore how the United States Supreme Court has approached the development of this jurisprudence, and include within our examination some elements of due process as well, to see how the Court, out of whole cloth, has created a practical jurisprudence for analyzing the constitutionality of capital punishment, and why the Court was motivated to do so.
This jurisprudence provides students with a window to the tug between justices who view the constitution as a “living” document that adapts to the times and the society, and those who view the constitution as a static outline of the powers of respective governments within a federal system to be understood as the framers of the document would have understood it.
Additionally, this jurisprudence provides students with a window to the strengths and weaknesses of a federal system in which the interplay between the power of the federal government and the power of the state governments must be understood and respected, even within the context of a constitutional jurisprudence that recognizes the imperative of the Supremacy clause.