In 2008, the Supreme Court held that executing a man for raping a child violated the Eighth Amendment. Sixteen years later, Florida and Tennessee passed laws saying it doesn’t. One of those statutes is heading to the current Supreme Court.
What happens next depends on whether five justices are willing to scrap a defective constitutional test and actually do the historical work — without flinching at the parts of the founding-era record that cut against the instinctive conservative answer.
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What Kennedy got wrong — and right
In Kennedy v. Louisiana, the court’s 5-4 majority held that the Eighth Amendment bars capital punishment for child rape where the victim didn’t die. Justice Anthony Kennedy’s logic rested on two pillars: a national consensus measured by counting state statutes, and the court’s own independent proportionality judgment. Six states had authorized the death penalty for child rape. The majority called that a consensus. The dissent, by Justice Samuel Alito and joined by Justices John Roberts, Clarence Thomas, and Antonin Scalia, called it a trend moving the other way.
The originalist case here is genuinely mixed. Colonial and early American law authorized death for crimes that didn’t involve homicide — treason, piracy, and in several jurisdictions, rape itself. The phrase “cruel and unusual” in the 1689 English Bill of Rights targeted torture and grossly disproportionate punishments, not a categorical bar on nonhomicide capital offenses. A court applying the Eighth Amendment as it stood in 1791 might not reach Kennedy’s result. The problem isn’t necessarily the conclusion — it’s the method. Counting state legislatures to determine constitutional meaning isn’t textualism. It’s a referendum dressed up as adjudication.
The deterrence problem conservatives skip
The Kennedy majority raised an argument the Right rarely takes seriously: Capital punishment for child rape may actually harm children by giving perpetrators an incentive to kill their victims rather than leave a living witness. A child who survives can testify. A dead one can’t. That’s not a constitutional claim under the Eighth Amendment, but it’s a real-world empirical argument about what these statutes do to the children they’re meant to protect.
The counterargument carries equal weight. Child rape survivors carry lifelong injuries across every domain of adult life — mental health, relationships, and economic outcomes. Whether perpetrators actually calculate relative sentencing consequences before acting is an open question the 2008 Supreme Court didn’t resolve, and the research since hasn’t settled it. Any court reconsidering Kennedy should require a genuine look at the empirical record, not confident assertions in either direction.
What the current court can do
CRUEL, UNUSUAL, AND UNDEFINED: EXECUTING JUDGMENT ON THE DEATH PENALTY
Florida’s 2023 statute and Tennessee’s 2024 law are designed to force the question. The five-justice Kennedy majority is gone. Three of the four dissenters remain: Alito, Roberts, and Thomas. The court in New York State Rifle & Pistol Association v. Bruen discarded a defective Second Amendment methodology and replaced it with a historical-practice analysis rather than just reversing course. That same move applied here would fix the core problem with Kennedy, the state-counting test, without requiring the court to announce a categorical result on child rape and capital punishment.
The founders wrote the Eighth Amendment to prohibit torture, drawing and quartering, and punishments designed to inflict maximum suffering, independent of what the crime actually required. Whether capital punishment for child rape fits that historical tradition is a real question with a potentially real answer. It’s harder than counting legislatures, which is probably why the court hasn’t done it. Florida and Tennessee have handed it a ready case. The constitutional question and the children these statutes protect both deserve a court willing to ask it.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a bachelor’s degree from Northeastern University and has completed postgraduate studies at the University of California, Los Angeles; the University of Pennsylvania; and Harvard University. He writes about issues in finance, constitutional law, national security, human nature, and public policy.
