a love-hate relationship
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branding and cutting off of ears, which were commonplace at the time of the adoption of the Constitution, passed from the penal scene without judicial intervention because they became basically offensive to the people and the legislatures responded to this sentiment.” “Beyond any doubt,” they wrote, “if we were today called upon to review such punishments, we would find them excessively cruel because we could say with complete assurance that contemporary society universally rejects such bizarre penalties.” Emphasizing that death penalty laws remained on the books of forty States, the District of Columbia, and under federal law, the four dissenters said that there are “no obvious indications that capital punishment offends the conscience of society to such a degree that our traditional deference to the legislative judgment must be abandoned.”17 The four dissenters in Furman were particularly troubled by what they saw as the Court’s abrupt reversal in course. Just a year earlier, in McGautha v. California, the Court had held that, under the Fourteenth Amendment’s due process clause, death sentences could be handed out by jurors as they saw fit. “In light of history, experience, and the present limitations on human knowledge,” the Court in McGautha held, “we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution.” “McGautha was an exceedingly difficult case,” the Furman dissenters argued, saying “reasonable men could fairly disagree as to the result.” “If stare decisis means anything,” they wrote, referring to the legal principle counseling adherence to precedent, McGautha “should be regarded as a controlling pronouncement of law.” “This pattern of decisionmaking,” they said, “will do little to inspire confidence in the stability of the law.” Conceding that “human error” was unavoidable, Justice Rehnquist nevertheless lamented that the Furman ruling struck down “a penalty that our Nation’s legislators have thought necessary since our country was founded.”18 In a separate dissent, Justice Harry Blackmun wrote that death