The Most Cruel and Unusual Punishment

Supreme Court Associate Justice William J. Brennan Jr. on September 5 called for the high court to reverse its position and declare capital punishment unconstitutional.

Returning to the school where he earned a law degree in 1931, Brennan told a Sanders Theater throng that the Eighth Amendment prohibition of "cruel and unusual punishment" does not clearly dictate a position on the death penalty.

"It seems we just can't know what punishment the framers considered cruel and unusual," Brennan said, adding that the "majestic generality" of the Constitution paves the way for modern interpretations by jurists.

He predicted the Supreme Court would one day reject the death penalty. At one point in the 1970s, the high court rejected the death penalty but then reinstituted it.

Brennan's speech was the 26th Oliver Wendell Holmes Jr. Lecture. He was the first sitting justice to deliver the annual address, which this year drew more than 1000 of those attending Harvard's 350th anniversary celebration.

After the address, Associate Justice Harry A. Blackmun '29, a 1932 Law School graduate attending the anniversary, joined Brennan for a less formal discussion with about 200 law students.

The two, considered among the court's most liberal, agreed a recent decision that allows states to outlaw certain sexual acts would not lead to a curtailing of individual rights.

In the formal, 50-minute lecture, Brennan went beyond the question of capital punishment, discussing competing views of the high court's role.

As in its ruling on capital punishment, Brennan said, the court sometimes goes too far in trying to discern the intentions of the Constitution's 18th-century framers. He said the court should more actively interpret the law to bring about effects that benefit society.

"The Constitution must be read in light of evolving standards," he said.

If strict interpretation were a valid theory of Constitutional law, then "a court of historians to compile a master list of life in 1891" would be all that was needed to form the third branch of government, he said.