National Consensus, Retributive Theory, and Foundations of Justice and Morality in Eighth Amendment Jurisprudence: A Response to Advocates of the Child Rape Death Penalty Statute in Kennedy v. Louisiana

This Article examines the foundations of law and justice in American jurisprudence to illuminate the Court's decision in Kennedy. Drawing on the philosophy of retributivists, primarily Immanuel Kant, this Article embraces the principle that justice is paramount, and that matching punishment to crime furthers the interests of justice. The Article opens with a survey of Eighth Amendment death penalty jurisprudence, particularly as applied to rape. Then, it briefly examines retributivist philosophy with regard to crime and punishment, focusing on Immanuel Kant's articulation. Finally, the Article demonstrates how the Court's decision in Kennedy was consistent with that retributivist philosophy