ular use of penalties, suggest that it is ‘cruel and unusual’ to apply the death penalty -- or any other penalty -- selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not countenance general application of the same penalty across the board.” This explanation was clear enough in that the Furman case was based more on race grounds than on legal grounds. The four dissenting Justices, however, refused to see the case in this light. They had their own explanation of the Eighth Amendment: “In the 181 years since the enactment of the Eighth Amendment, not a single decision of this Court has cast the slightest shadow of a doubt on the constitutionality of capital punishment. In rejecting Eighth Amendment attacks on particular modes of execution, the Court has more than once implicitly denied that capital punishment is impermissibly ‘cruel’ in the constitutional sense. Wilkerson v. Utah, 99 U.S. 130 (1879); Louisiana ex rel. Francis v. Resweber, 329 U.S., at 464. In re Kemmler, 136 U.S. 436 (1890) (dictum). The Eighth Amendment forbids 'cruel and unusual punishments.' In my view, these words cannot be read to outlaw capital punishment because that penalty was in common use and authorized by law here and in the countries from which our ancestors came at the time the Amendment was adopted. It is inconceivable to me that the framers intended to end capital punishment by the Amendment.” The justices handled the case well on an individual basis but the collective handling of the case left much to be desired. The justices did not reach a consensus on this most sensitive of issues, neither did they state that the death penalty was unconstitutional. They merely stated that it was cruel under its present format. This was not much of a hindrance to the states because they promptly made amendments in their de...
