The Constitution Limits of the "National Consensus" Doctrine in Eighth Amendment Jurisprudence

I. INTRODUCTIONShould Congress be able to unilaterally determine the constitutionality of a criminal sentence under the Eighth Amendment? Moreover, should Congress be able to override the Supreme Court's judgment that a particular criminal punishment is unconstitutional without amending the Constitution?Presumably, the Bill of Rights and the Fourteenth Amendment were adopted with the intention of imposing an outer limit on what kinds of actions legislatures may take against individuals. In particular, the Eighth Amendment limits legislative discretion by prohibiting the imposition of "cruel and unusual punishments" by state and federal legislatures.1 However, as some scholars have argued, the U.S. Supreme Court may have already vested Congress and state legislatures with the power to independently dictate whether a particular punishment is permissible under the Eighth Amendment.2Although the text of the Eighth Amendment provides little guidance as to which particular punishments are unconstitutional,3 the Supreme Court has made clear that the Amendment prohibits (1) certain modes of punishment, such as torture,4 and (2) punishments that are grossly disproportionate or excessive.5 This latter category has comprised the majority of cases giving rise to the Supreme Court's Eighth Amendment jurisprudence.6 In determining which sentences are unconstitutionally excessive, the Court has adopted two approaches for reviewing disproportionality challenges.7First, for the majority of noncapital crimes, the Court has utilized a "gross disproportionality" analysis.8 Essentially, this approach consists of judges weighing the seriousness of an offense against the seriousness of the punishment, so as to determine whether the penalty is unconstitutionally excessive.9Second, the Court has used a "categorical" approach that implements bright-line rules to prohibit certain sentencing practices.10 This approach differs from the gross-disproportionality method because, rather than requiring judges to subjectively weigh the proportionality of a sentence, the Court simply creates blackletter rules that dictate the specific applications of the Eighth Amendment. While most cases implicating the categorical approach have dealt with capital punishment,11 the Court has recently applied this method to a noncapital case,12 suggesting that the categorical approach may now be utilized in both capital and noncapital cases.13The categorical approach consists of a two-part analysis. First, the Court considers "Objective indicia of society's standards, as expressed in legislative enactments and state practice' to determine whether there is a national consensus against the sentencing practice at issue."14 In other words, the Court first considers state and federal legislation to determine if there is a national consensus against implementing a particular sentencing practice. Second, the Court considers "the Court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose."15 This second part of the analysis has been deemed the "independent judgment" analysis, and has historically complemented the national consensus rationale to help the Court determine whether a particular sentencing practice violates the Eighth Amendment.16 Using these methodologies in complementary fashion, the Court has been able to determine whether particular sentencing practices violate the Eighth Amendment.17Recently, however, the dual relationship between the national consensus and independent judgment rationales has become unclear,18 prompting onlookers to wonder which of the two methods should predominate whenever they point to different outcomes. Some scholars have argued that in Kennedy v. Louisiana,(TM) this issue was decided as the national consensus rationale became the primary basis for the Court's holding.20 Because of this, scholars have argued that the holding in Kennedy should be subject to legislative override, since new legislation would indicate a different national consensus. …