Although specific methods of execution had been legally challenged as early as 1890, and procedural issues before that, the fundamental legality of capital punishment itself was not subject to challenge until the 1960s.1 It had long been argued that the Constitution or, more specifically, the Fifth Amendment authorized capital punishment and that a majority of the framers of the Constitution did not object to it. The Fifth Amendment reads as follows:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law, nor shall private property be taken for public use without just compensation (emphasis added).