"Government speech", "Compelled speech" and Free Speech

. . . As it is, however, the Constitution that I interpret and apply is not living but dead—or, as I prefer to put it, enduring. It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted. For me, therefore, the constitutionality of the death penalty is not a difficult, soul–wrenching question. It was clearly permitted when the Eighth Amendment was adopted (not merely for murder, by the way, but for all felonies—including, for example, horse–thieving, as anyone can verify by watching a western movie). And so it is clearly permitted today.

The law has long forbidden routine use of visible shackles during the guilt phase; it permits a State to shackle a criminal defendant only in the presence of a special need.

This rule has deep roots in the common law. In the 18th century, Blackstone wrote that “it is laid down in our antient books, that, though under an indictment of the highest nature,” a defendant “must be brought to the bar without irons, or any manner of shackles or bonds; unless there be evident danger of an escape.” 4 W. Blackstone, Commentaries on the Laws of England 317 (1769) (footnote omitted); see also 3 E. Coke, Institutes of the Laws of England *34 (“If felons come in judgement to answer, . . . they shall be out of irons, and all manner of bonds, so thattheir pain shall not take away any manner of reason, nor them constrain to answer, but at their free will”).

. . . To reach its result, the Court resurrects an old rule the basis for which no longer exists. . . .

My legal obligation is not to determine the wisdom or the desirability of shackling defendants, but to decide a purely legal question: Does the Due Process Clause of the Fourteenth Amendment preclude the visible shackling of a defendant. Therefore, I examine whether there is a deeply rooted legal principle that bars that practice. Medina v. California, 505 U. S. 437, 446 (1992); Apprendi v. New Jersey, 530 U. S. 466, 500 (2000) (THOMAS, J., concurring); see also Chicago v. Morales, 527 U. S. 41, 102–106 (1999) (THOMAS, J., dissenting). As I explain below, although the English common law had a rule against trying a defendant in irons, the basis for the rule makes clear that it should not be extended by rote to modern restraints, which are dissimilar in certain essential respects to the irons that gave rise to the rule. Despite the existence of a rule at common law, state courts did not even begin to address the use of physical restraints until the 1870’s, and the vast majority of state courts would not take up this issue until the 20th century, well after the ratification of the Fourteenth Amendment. Neither the earliest case nor the more modern cases reflect a consensus that would inform our understanding of the requirements of due process therefore find this evidence inconclusive."

. . . The settlers in the New World brought this English code with them, although the shortage of manpower in the colonies led to a drastic reduction in the imposition of the death penalty, especially for minor crimes. People who could work were too valuable to lose because of petty infractions such as stealing rabbits. The Puritans in Massachusetts, for example, abolished capital punishment for any form of theft, and in the Massachusetts Body of Liberties (1641) declared that "for bodily punishments, we allow amongst us none that are inhumane, barbarous or cruel."

By the time of the Revolution, most colonies had laws that provided the death penalty for arson, piracy, treason, murder, sodomy, burglary, robbery, rape, horse-stealing, slave rebellion, and counterfeiting, with death by hanging the usual mode of execution. Some colonies had more severe criminal codes, but in all of them the record seems to indicate that even though a particular crime could be punished by death, judges and juries imposed this penalty only in the cases of the most heinous crimes.

. . .A major debate over what constituted cruel and unusual punishment took place at the time of the Revolution and extended through the drafting of the Constitution and the Bill of Rights, a debate that in many ways foreshadowed the modern controversy over whether capital punishment is cruel and unusual punishment.

. . . The debate over cruel and unusual punishment also included a discussion of whether capital punishment should be outlawed. The writings of European philosophers such as Immanuel Kant were well known in the United States, and his restatement of the old Biblical notion of proportionality carried a great deal of weight. But so, too, did the writings of reformers such as the Italian Cesare Beccaria, who opposed the death penalty. Beccaria believed that the very severity of a law often made criminals "commit additional crimes to avoid punishment for a single one." For example, if a simple crime like stealing a chicken might lead to a severe penalty, then the chicken thief would resort to even greater violence in avoiding capture so as to evade that punishment.

There were some significant voices raised at the time in favor of abolishing capital punishment. Some argued that the success of the new republic should depend upon the virtue of its citizens and not on their fear of a harsh penal code, which many saw as the hallmark of tyranny. Benjamin Rush, one of the signers of the Declaration of Independence, declared that "capital punishments are the natural offspring of monarchical governments." Even a conservative like Alexander Hamilton believed that "the idea of cruelty inspires disgust," and that the death penalty undermined republican values and behavior.