In Baze v. Rees, the Supreme Court rejected a death-row inmate's claim that a state's use of a lethal injection protocol that carried risks of severe pain from improper administration violated the Constitution. Justice Thomas wrote a remarkable concurring opinion, joined by Justice Scalia, in which he argued that the plurality opinion announcing the governing standard for claims of this sort was wrong, and should have hewed more closely to the original understanding of the Eighth Amendment. Justice Thomas wrote that "the Framers intended to prohibit torturous modes of punishment akin to those that formed the historical backdrop of the Eighth Amendment," referring to eighteenth-century practices such as burning a person alive, public dissection, and live disembowelment.
Yet the Thomas concurrence merits our attention less for what it says than for what it does not say. Nowhere in the opinion does Justice Thomas refer to the Fourteenth Amendment. This is so even though the Fourteenth Amendment was the constitutional provision under review in the case. For Justice Thomas, as for many academic originalists, the Eighth Amendment applies to states only to the extent that relief from cruel and unusual punishments constituted a privilege or immunity of citizenship at the time the Fourteenth Amendment was ratified. Failing to mention or to offer any explicit analysis of the governing constitutional text is not unusual in Supreme Court opinions, but it is a notable omission in an opinion in which the Court's two most prominent originalists chide their colleagues for failing to heed constitutional text and history.
Fourteenth Amendment Originalism,
Md. L. Rev.
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