the rights of freed slaves, specifically forbids the states to "deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Whereas the language of the Constitution in Amendments Five and Fourteen seems to presume that capital punishment is a government option, the prohibition of cruel and unusual punishment in the Eighth Amendment and the "equal protetion" reference in the Fourteenth open the way for debate on how to implement Constitutional provisions appropriately. In the 19th century, the debate over capital punishment was conducted on religious grounds, more or less outside the judicial system. In 1843, for example, two New York preachers took up the matter death-penalty abolitionists in a well-attended public debate. In 1845 in her Letters from New York, columnist Lydia Maria Child questioned whether capital punishment was morally right just because it was established policy (Morris and Vila xxxviiff). In 1847, the state of Michigan became first to specifically abolish the practice (Morris and Vila xxxviii).
It was in 1879 that the Supreme Court first weighed in on Constitutional grounds, holding that execution by firing squad was not cruel and unusual punishment, and in 1890 it said the same thing about the electric chair. Over the next hundred years, the issue would repeatedly surface. In 1972, for example, the Court declared the death penalty unconstitutional as cruel and unusual punishment under the Eighth and Fourteenth Amendments, given the language of state laws for sentencing capital defendants (Furman v. Georgia, 408 U.S. 238). Four years later, however, the Court upheld state death-penalty laws rewritten to conform to Furman (Liebman 14). In ensuing years the Court ruled both for and against executions involving mitigating factors such as age, victim-impact statements, the mental capacity of offenders, and violations...