More Roper

Will asks why originalists aren't willing to cite Harmelin in explaining how Roper misapplies the 8th Amendment to the death penalty. Harmelin holds that the 8th Amendment doesn't put any kind of proportionality requirement on sentencing, though Kennedy's concurrence questions this holding. My understanding is that the court consistently refuses to apply Harmelin in their death penalty jurisprudence because, "Death is different." See, e.g. Woodson v. North Carolina, Ford v. Wainwright. For instance, I can't find the case right now, but whichever case says that the death penalty can't be applied to rape (but only to 1st degree murder) is clearly contrary to Harmelin. Applying Harmelin to the death penalty context would undo decades of jurisprudence in that area. I know death is different sounds glib, but the Court takes it seriously.