Another counterargument to the substantive due process challenge is prudential: given the Court’s “reluctan[ce] to expand the concept of sub- stantive due process,”332 per se challenges to the death penalty are more
appropriately analyzed under the Eighth Amendment. This argument de- rives from the Supreme Court’s “more-specific-provision” rule, which states that “if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be ana- lyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.”333 Because the death penalty is a pun-
ishment, the argument goes, the Eighth Amendment covers it, and “the more generalized notion of substantive due process” does not apply.334 At-
tractive in its simplicity, this argument is unpersuasive for two reasons. First, it is not at all clear that the Eighth Amendment “covers” per se challenges to the death penalty to the exclusion of substantive due process.335
As between the Eighth Amendment, on the one hand, and the Fifth and Four- teenth Amendments, on the other, the latter seem to provide the more “explic- it textual source of constitutional protection against a particular source of government behavior.”336 Indeed, the Fifth and Fourteenth Amendments are
the only constitutional provisions that explicitly mention the death penal- ty.337 Prominent jurists like Justice Scalia have repeatedly pointed to the
Fifth and Fourteenth Amendments for the proposition that the death penalty is constitutional per se; it would be strange to conclude that those amend- ments have no application when that very proposition is challenged.338
To the extent there is any doubt that the Fifth and Fourteenth Amend- ments apply to per se challenges to the death penalty, the prisoner—who faces a punishment indisputably greater than any other—ought to receive the benefit of the constitutional provision most protective of life.339 In the
of a sweeping, general fundamental right to ‘freedom from bodily restraint’ applicable to all per- sons in all contexts. If convicted prisoners could claim such a right, for example, we would sub- ject all prison sentences to strict scrutiny. This we have consistently refused to do.”).
332 Lewis, 523 U.S. at 842.
333 Id. at 843; accord Graham v. Connor, 490 U.S. 386, 395 (1989). 334 See Lewis, 523 U.S. at 843.
335 See id. 336 Id.
337 See U.S. CONST. amends. V, XIV.
338 See supra notes 317–331 and accompanying text (arguing that the Fifth and Fourteenth Amendments contemplate the death penalty).
339 See California v. Ramos, 463 U.S. 992, 998–99 (1983) (“The Court, as well as the separate opinions of a majority of the individual Justices, has recognized that the qualitative difference of
context of a per se challenge to the death penalty, the Fifth and Fourteenth Amendments are more protective than the Eighth Amendment because they require the State to prove that the death penalty is narrowly tailored to serve a compelling interest—i.e., that retribution and deterrence cannot be achieved through any less restrictive means.340 The Eighth Amendment, by
contrast, turns this analysis on its head: according to Gregg v. Georgia, the validity of the death penalty is “presume[d],” and the “heavy burden” is on the prisoner to produce “convincing evidence” that the death penalty is “so totally without penological justification that it results in the gratuitous in- fliction of suffering.”341 It cannot be that the Supreme Court is duty-bound
to give less protection to life; given the heightened burden imposed on the prisoner by the Eighth Amendment, the Fifth and Fourteenth Amendments should control.342
Second, even if the “more-specific-provision” rule were applicable to a substantive due process challenge to the death penalty, the Supreme Court’s commitment to the rule is anything but certain.343 Indeed, in the nearly thir-
ty years since announcing its “more-specific-provision” rule, the Supreme Court has never applied the rule to a substantive due process challenge in the death penalty context—let alone a challenge to the death penalty per se.344 In fact, the Court has rarely invoked the rule to reject a substantive
due process challenge in favor of an Eighth Amendment challenge; the cas- es applying the rule have almost universally involved unlawful searches and
death from all other punishments requires a correspondingly greater degree of scrutiny of the capi- tal sentencing determination.”); cf. Whitley v. Albers, 475 U.S. 312, 313, 326–27 (1986) (analyz- ing prison security claims under substantive due process and the Eighth Amendment, and holding that, “[i]n the prison security context, the Due Process Clause affords respondent no greater pro-
tection than does the Cruel and Unusual Punishments Clause” (emphasis added)).
340 See supra notes 99–102, 309–313 and accompanying text (discussing government’s bur- den under substantive due process).
341 428 U.S. 153, 175, 187 (1976); see also id. at 186–87 (stating that “the infliction of death as a punishment for murder is not without justification,” many post-Furman statutes reflected “a responsible effort to define those crimes and those criminals for which capital punishment is most
probably an effective deterrent,” and the Georgia legislature’s judgment “that capital punishment may be necessary in some cases” was not “clearly wrong” (emphasis added)).
342 See supra notes 38–40 and accompanying text (discussing Eighth Amendment and due process protections).
343 See United States v. James Daniel Good Real Prop., 510 U.S. 43, 49, 52 (1993) (“We have rejected the view that the applicability of one constitutional amendment pre-empts the guarantees of another . . . . [A]ssuming that the Fourth Amendment were satisfied in this case, it remains for us to determine whether the seizure complied with our well-settled jurisprudence under the Due Process Clause.”); Soldal v. Cook Cty., 506 U.S. 56, 70 (1992) (“Certain wrongs affect more than a single right and, accordingly, can implicate more than one of the Constitution’s commands.”).
344 See infra notes 345–346 and accompanying text (collecting cases discussing the “more- specific-provision” rule).
seizures implicating the Fourth Amendment.345 Furthermore, the rule’s ap-
plication is highly contested—often commanding a mere plurality or in- voked by dissenters.346 The Court’s failure to invoke the rule in like con-
texts, together with the disputed nature of the rule itself, thus raises substan- tial doubts about the Court’s willingness to apply the rule to a challenge to the death penalty per se.
C. Recognition of the Condemned’s Right to Life Will Undermine a