1 0 5An Example of Reconstruction: Capital Punishment
An eXAMPLe oF ReconstRUction: cAPitAL
PUnisHMent
We can illustrate the methods of reconstruction by examining the difficult
question of the constitutionality of capital punishment. It has been argued
that the U.S. Supreme Court should declare the death penalty unconstitu-
tional because it is a cruel and unusual punishment. The explicitly stated
argument has the following basic form:
(1) The death penalty is a cruel and unusual punishment.
∴(2) The death penalty should be declared unconstitutional. (from 1)
This argument plainly depends on two suppressed premises:
SP1: The Constitution prohibits cruel and unusual punishments.
SP2: Anything that the Constitution prohibits should be declared
unconstitutional.
These premises and this entire argument refer to the relevant jurisdiction,
which is the United States. So the argument, more fully spelled out, looks
like this:
(1) The death penalty is a cruel and unusual punishment.
(2) SP: The Constitution prohibits cruel and unusual punishments.
∴(3) The Constitution prohibits the death penalty. (from 1–2)
(4) SP: Anything that the Constitution prohibits should be declared
unconstitutional.
∴(5) The death penalty should be declared unconstitutional. (from 3–4)
This reconstruction seems to be a fair representation of the intent of the orig-
inal argument.
We can now turn to an assessment of this argument. First, the argument is
valid: Given the premises, the conclusion does follow. All that remains is to
determine the truth of the premises one by one.
Premise 4 seems uncontroversial. This premise is so much an accepted
part of our system that no one would challenge it in a courtroom proceeding
today.
Premise 2 is clearly true, for the U.S. Constitution does, in fact, prohibit
cruel and unusual punishments. Its Eighth Amendment reads, “Excessive
bail shall not be required, nor excessive fines imposed, nor cruel and unu-
sual punishments inflicted.” It is not clear, however, just what this prohibi-
tion amounts to. In particular, does the punishment have to be both cruel
and unusual to be prohibited, or is it prohibited whenever it is either cruel or
unusual? This would make a big difference if cruel punishments were usual,
or if some unusual punishments were not cruel. For the moment, let us in-
terpret the language as meaning “both cruel and unusual.”97364_ch05_ptg01_079-110.indd 105 15/11/13 9:53 AM
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