Cruelty and kinds: Scalia and Dworkin on the constitutionality of capital punishment

I here revisit a debate between Antonin Scalia and Ronald Dworkin concerning the constitutionality of capital punishment. As is well known, Scalia maintained that the consistency of capital punishment with the Eighth Amendment can be established on purely textualist principles; Dworkin denied this. There are, Dworkin maintained, two readings of the Eighth Amendment available to the textualist. But only on one of these readings is the constitutionality of capital punishment secured; on the other, ‘principled’, reading (favoured by Dworkin) it is not. Moreover, breaking the stalemate in favour of the former reading cannot be decided on textualist principles alone. To resolve the issue, Scalia (Dworkin argues) is forced to appeal to interpretive principles he has explicitly disavowed – principles that permit us to go beyond the text and invoke the framers’ intentions. In this paper, I argue that Dworkin has misdescribed the situation: there is in fact a plausible textualist argument that favours Scalia’s reading – one that, as per its textualist credentials, makes no reference to the framers’ intentions or expectations.