Every legal argument against the death penalty begins with the 8th or 5th Amendment. The 8th bars “cruel and unusual punishments,” and the 5th guarantees “due process of law” before a person can be “deprived of life, liberty or property.” But there is no serious constitutional argument against the death penalty. The 5th Amendment itself recognizes the existence of “capital” crimes, and executions were common before and after the Constitution’s framing. No framer ever suggested that the Constitution divested states of this part of their historical punishment power, nor has there been a constitutional amendment that does so…

Unable to convince the public on the merits of abolition, death-penalty opponents have a new strategy, attacking capital punishment on fiscal grounds. That is the basis for a ballot initiative to stop executions in California that backers of a capital punishment ban hope to qualify for the November 2012 ballot. They do have half a point: Litigation has driven up the cost of executions, and delays and expense mean that states don’t always seek death for the worst of the worst.

But this argument is beyond hypocritical, coming from the same groups that have thrown up every possible roadblock to timely and efficient administration of capital punishment.