Barbarism Revisited

In January 2024, Kenneth Eugene Smith became the first person in recorded history to be executed by nitrogen hypoxia. By witness accounts, Smith appeared to suffer for as long as twenty-seven minutes as he was slowly suffocated. The incident unfolded much as medical experts and human rights advocates had predicted. Yet the Supreme Court declined to intervene either to stay the execution or to grant Smith’s request to be executed instead by firing squad. The facial incongruity of Smith’s killing with the Eight Amendment’s Punishments Clause provides a window into three fundamental failings in the Roberts Court’s allegedly history-oriented, individual-rights jurisprudence. First, the Court’s treatment of semantic originalism in its most relevant case, Bucklew v. Precythe, shows that the text-oriented version of the doctrine often fails to deliver on its promises of constraining judges and delivering conservative policy wins. Consequently, the originalist Justices muddle the theory to make their subjective choices appeared historically determined. Second, the Court has repeatedly declined to apply its novel traditionalist analysis—as seen in Bruen and Dobbs—in Punishments Clause cases. The emergence of traditionalism itself demonstrates the elective nature and limited utility of semantic originalism, while the Court’s failure to give equal methodological treatment to all parts of the Constitution demonstrates that neither approach is binding. Finally, a fuller investigation of the history of early American criminal-law practices demonstrates that both semantic originalism and traditionalism rely on assumptions that distort the very history they purport to uncover and miss a powerful statement of local control inherent in early-American understandings of the Punishments Clause.