"Kent's note raises the question whether public opinion should be relevant to constitutional adjudication. In the Fourth Amendment context, plainly the answer is "yes." As Kent observes, when the constitutional provision by its terms requires courts to determine what is "reasonable," the public's view is very much in point, if not dispositive.
Even more noteworthy is the Eighth Amendment's prohibition on cruel and unusual punishment. As the Supreme Court has recognized, a public consensus about what is "cruel" punishment for a given crime or criminal is one of the most important elements to be considered. It was therefore disappointing, but not surprising, that in Kennedy v. Louisiana, 554 U.S. ___ (2008) , a 5-4 majority concluded that the death penalty for child rape, even when particularly violent and grotesque, is unconstitutional. The Court justified its conclusion by pointing out that only a small minority of states had the death penalty for any non-homicide offense. What the Court failed to do was make a convincing argument that this was a result of anything besides its own opaque and ambiguous decision in Coker v. Georgia, 433 U.S. 584 (1977), which had barred capital punishment for the rape of an adult woman.
If one wants to know whether there is a public consensus against the death penalty for child rape, there's an easy way to go about it: ask. The Quinipac Poll did. It found that by a margin of 55-38, respondents favored making the death penalty an option for the jury in such cases.
Any lingering doubt about whether there is a national consensus against the death penalty for child rape was ended in short order. On the afternoon of the Court's decision in October 2008, both presidential candidates condemned it. For whatever flaws our politics may have, one thing is certain, and that is when the presidential candidates openly agree on X, X is the national consensus..." Read More
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