Hi Red,
The more one looks at it the more intricate it gets! I had a look through Gregg v Georgia and was struck by note (c). “The existence of capital punishment was accepted by the Framers of the Constitution, and, for nearly two centuries, this Court has recognized that capital punishment for the crime of murder is not invalid per se.”
Assuming the ruling precise, there being no real reason to assume it is not, I think use of the word “accepted” confirms the point that at the 1st Congress, people, probably not individually but as a group, did not actually require a DP, but, in writing restrictions on its use into Amendment 5, they in effect allowed its use:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The “in jeopardy of life” being no more than a statement of possibility, I think it’s right the allowance, or “acceptance” is drawn directly from the “nor be deprived of life”, which (also in Amendment 14) is a statement of certainty.
Looking at it as an outsider I would say that changed the Constitution immensely, maybe more than thought.
Somewhere I saw that George Mason who did the Bill of Rights did not want to do such a bill from feeling that all Rights are inseparable from people anyway, but in the end he did agree to do it even if only so he could ensure the Constitution came to say no one can claim any Rights not recognised in the Constitution were invalid. And apparently he then drew heavily upon the old Virginia Declaration of Rights.
Looking at that one, in its Section 8, it says: “That in all capital or criminal prosecutions a man has a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgment of his peers.”
And, like the original Constitution, it appears to make no mention of “nor deprived of life” or anything like that, in that section or anywhere else. So, an interesting thing, I have not yet got to, will be to see if there’s anything anywhere about how the 1st Congress came to accept the DP in Amendment 5, because surely everyone at that congress must have had at least some notion of the Virginia document. I mean, one would expect half of them likely had copies of it right in front of them for reference in examining the wording of the proposed Amendments they were debating.
However, going back earlier, I’d say the Founders as a group possibly did not want a DP, leastwise not at the time when they were writing the original Constitution itself.
The reason I say this is National Archives note that for the Declaration of Independence, George Washington drew heavily on the beginning of the old Virginia Declaration of Rights. And he was no fool, so it is inconceivable he would have not had a grasp of the whole document and it’s spirit, and would not have twisted half into meaning something completely different, given he was seeking unity and such a twist would have instantly caused a political split a mile wide.
So, it is seems a well used popular document, and it ends, in Section 16, very moderately, indeed one might say in but an appeal; to good and charitable conduct on the part of the population:
Section 16. “That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity toward each other.”
And it is impossible to equate “Christian forbearance, love, and charity” with any support at all of a death penalty being exercise upon a restrained convict.
So, somewhere in that 1st Congress they changed things, whether they realised it or not, from a state just appealing for extreme harmony into a state also threatening against extreme disharmony: In other words, with “nor be deprived of life” they said a civilisation can probably not be entirely built upon a pile of carrots, to do the job properly it likely needs a few very heavy sticks as well.
The more pragmatic approach. But, surely it made America much more like Europe than might otherwise have been the case.
And, strangely, Britain, in giving up the DP, would appear to have become quite pre-America, in seemingly adopting the Virginia Declaration of Rights.
I can not help but finish by teasing with the observation that in the nation that threw off the yoke for a better life, and that adopted a written constitution, the wealthy grant the poor no more than they absolutely have to in order to have them fit enough to labour. Whereas, in the nation that was the yoke, and that sticks up two fingers to any written constitution, the wealthy fall over each other to give and lend the poor everything they possibly can, so they may sit at home and watch the telly in comfort.
Is it possible, in the USA, the introduction of that element of harshness into the Constitution, by marking the far end of the spectrum, had the unforeseen consequence of making acceptable a range of restrictions of all kinds, restrictions that in turn make it near impossible for many to create and retain significant wealth in material and aesthetic quantities and qualities, leastwise sufficient to make it crystal clear they need not resort to crime in order to obtain a worthwhile life?
I may be wrong. If there's anything in the above you want to frame or shred, feel free. You may be wrong. I'm off now, to see what I can find out about the 1st Congress.
