Argument: 5th amendment of US Constitution allows for executions
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Justice Marshall McComb of the California Supreme Court wrote in 1972 - It is my opinion that the death penalty is constitutional, as determined...in innumerable cases. therefore, since it is the duty of the Legislature of the electorate, and not the judiciary, to decide whether it is sound public policy to empower the imposing of the death penalty, it is my opinion that if a change is to be made, it should be effected through the legislative process of by the people through the initiative process.
US Supreme Court Justice Antonin Scalia, 1997 - No fewer than three of the Justices with whom I have served (Justices Brennan, Marshall, and Blackmun) have maintained that the death penalty is unconstitutional, even though its use is explicitly contemplated in the Constitution. The Due Process Clause of the Fifth and Fourteenth Amendments says that no person shall be deprived of life without due process of law; and the Grand Jury Clause of the Fifth Amendment says that no person shall be held to answer for a capital crime without grand-jury indictment.