You know, I touched on this in my 8/23 Atkins post below, but using a “consensus” of counting state laws to determine what is constitutionally acceptable strikes me as a flagrant violation of the spirit (to say nothing of the letter) of Article V of the Constitution, which sets out very rigorous requirements for state legislatures to amend the constitution. Make no mistake: if enough state legislatures (2/3 of them) demand a Convention for the purposes of changing the Eighth Amendment, and if enough state legislatures (3/4 of them) further ratify the resulting work of such a Convention (bearing in mind that, in modern practice, no such convention is called as long as you have enough ratifications), presto! The Constitution prohibits executing people whose names begin with the letter “M”, or whatever else those states may desire. To use an “emerging consensus” based on differing statutes passed in less than that number of states, and on the basis of statutes that were not debated with the gravity of a (generally permanent) constitutional amendment, is a direct attack on the Article V procedures.