At Volokh Conspiracy, Josh Blackman: It Is Time To Revisit Kennedy v. Louisiana – Even if there was an actual “national consensus” against capital punishment for child rape in 2008, the facts are different today. From the introduction:
I often speak of June 26, 2008, the day that District of Columbia v. Heller was decided. Yet, I still clearly remember the day before when the Court decided Kennedy v. Louisiana. Justice Kennedy declared that there was a “national consensus” against executing child rapists, and accordingly, the Eighth Amendment prohibits such punishment. Two decades later, I am still appalled by that decision. It has to be wrong as an originalist matter, as the meaning of the Eighth Amendment cannot change based on what states do. And Kennedy offered no objective basis to determine what the “national consensus” even was.
Maybe now is the time to reconsider this precedent. Judge Josh Devine (EDMO) takes Kennedy as a starting point, and suggests that the facts on the ground have changed. …
Posted at 6:20 AM