McGautha v. California (402 U.S. 183)/Dissent Black

Separate opinion of Mr. Justice BLACK.

I concur in the Court's judgments and in substantially all of its opinion. However, in my view, this Court's task is not to determine whether the petitioners' trials were 'fairly conducted.' Ante, at 221. The Constitution grants this Court no power to reverse convictions because of our personal beliefs that state criminal procedures are 'unfair,' 'arbitrary,' 'capricious,' 'unreasonable,' or 'shocking to our conscience.' See, e.g., Rochin v. California, 342 U.S. 165, 174, 72 S.Ct. 205, 210, 96 L.Ed. 183 (1952) (Black, J., concurring); United States v. Wade, 388 U.S. 218, 243, 87 S.Ct. 1926, 1940-1941, 18 L.Ed.2d 1149 (1967) (Black, J., concurring and dissenting). Our responsibility is rather to determine whether petitioners have been denied rights expressly or impliedly guaranteed by the Federal Constitution as written. I agree with the Court's conclusions that the procedures employed by California and Ohio to determine whether capital punishment shall be imposed do not offend the Due Process Clause of the Fourteenth Amendment. Likewise, I do not believe that petitioners have been deprived of any other right explicitly or impliedly guaranteed by the other provisions of the Bill of Rights. 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. Although some people have urged that this Court should amend the Constitution by interpretation to keep it abreast of modern ideas, I have never believed that lifetime judges in our system have any such legislative power. See Harper v. Virginia Board of Elections, 383 U.S. 663, 670, 86 S.Ct. 1079, 1083, 16 L.Ed.2d 169 (1966) (Black, J., dissenting).