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4.2.12
WC: 191694

As I previously mentioned, my initial assignment as Justice Goldberg’s law clerk was to write a memorandum on the possible unconstitutionality of the death penalty. Here is how [ find author] _______ , in his book __________, describes the origins of this lifelong collaborative effort.

[Justice Goldberg] called his law clerk Alan Dershowitz into his office and advanced the decidedly immodest idea of using the Constitution to end the death penalty in America.

“The Eighth Amendment prohibits cruel and unusual punishment,” Goldberg told Dershowitz. “What could be more cruel than the deliberate decision by the state to take a human life?”

Alan Dershowitz immediately understood the impudence of Goldberg’s proposal. It was Dershowitz’s very first day on the job and the young clerk, already brimming with energy and enthusiasm, was elated by the Justice’s proposed agenda.

When Goldberg sat down with Dershowitz in the summer of 1963, not even the American Civil Liberties Union believed that capital punishment posed a potential violation of constitutional rights. Dershowitz made this point to Goldberg. “At the time the Eighth Amendment was enacted, the colonists were executing people all over the place. Certainly the framers of the Constitution did not regard the death penalty as unconstitutional.”

“Therein lies the beauty of our Bill of Rights,” Goldberg said. “It’s an evolving document. It means something different today than it meant in 1792.”

In Alan Dershowitz, Goldberg found a kindred spirit and a life story that was in many ways the New York parallel of his own Chicago childhood…Dershowitz had an aversion to capital punishment, which traced back to his childhood. Dershowitz argued against capital punishment as a member of his high school debating team. [I still have a handwritten card from my first high school debate in which I advocate the “abolision of C.P.” because “most murderers are products of invironment.”] In law school, he wrote a letter to the Prime Minister of Israel…arguing that the death penalty was inappropriate even for Adolf Eichmann.

Goldberg’s choice of Dershowitz to write his capital punishment opinion was no coincidence. Goldberg passed on the issue during his first year on the bench in part because he did not feel that he had the right clerks. He inherited his first set of clerks from Felix Frankfurter. Though he had high regard for the retiring justice’s selections, he didn’t feel they were right for the job.

They worked together through scholarship and advocacy against the death penalty for the remainder of Goldberg’s life. It is difficult to imagine that Goldberg could have found a more willing and able confederate than Alan Dershowitz.

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