Page:Russell Bucklew v. Anne L. Precythe, Director, Missouri Department of Corrections.pdf/36

2 “‘very atrocious crimes,’” such as treason and murder. See Baze, supra, at 96–97 (quoting 4 Blackstone *376). The founding generation ratified the Eighth Amendment to reject that practice, contemplating that capital punishment would continue, but without those punishments deliberately designed to superadd pain. See Baze, 553 U. S., at 97–98. Under this view, the constitutionality of a particular execution thus turns on whether the Government “deliberately designed” the method of execution “to inflict pain,” id., at 94, without regard to the subjective intent of the executioner.

Contrary to ’s suggestion, my view does not render the Eighth Amendment “a static prohibition” proscribing only “the same things that it proscribed in the 18th century.” Post, at 15–16. A method of execution not specifically contemplated at the founding could today be imposed to “superad[d]” “terror, pain, or disgrace.” 4 Blackstone *376. Thankfully—and consistent with Justice Story’s view that the Eighth Amendment is “wholly unnecessary in a free government,” 3 J. Story, Commentaries on the Constitution of the United States 750 (1833)—States do not attempt to devise such diabolical punishments. E. g., Baze, supra, at 107 (“Kentucky adopted its lethal injection protocol in an effort to make capital punishment more humane”). It is therefore unsurprising that, despite ’s qualms about the death penalty, e. g., post, at 18, this Court has never held a method of execution unconstitutional. Because the Court correctly declines to do so again today, I join in full.