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 The earliest litigation on the validity of the death sentence seems to have been pursued in the courts of the United States of America. It has been said there that the "Constitution itself poses the first obstacle to [the] argument that capital punishment is per se unconstitutional". From the beginning, the United States Constitution recognised capital punishment as lawful. The Fifth Amendment (adopted in 1791) refers in specific terms to capital punishment and impliedly recognises its validity. The Fourteenth Amendment (adopted in 1868) obliges the states, not to "deprive any person of life, liberty, or property, without due process of law" and it too impliedly recognises the right of the states to make laws for such purposes. The argument that capital punishment is unconstitutional was based on the Eighth Amendment, which prohibits cruel and unusual punishment. Although the Eighth Amendment "has not been regarded as a static concept" and as drawing its meaning "from the evolving standards of decency that mark the progress of a maturing society", the fact that the Constitution recognises the lawfulness of capital punishment has proved to be an obstacle in the way of the acceptance of this argument, and this is stressed in some of the judgments of the United States Supreme Court.

Although challenges under state constitutions to the validity of the death sentence have been successful, the federal constitutionality of the death sentence as a legitimate form of punishment for murder was affirmed by the United States Supreme Court in Gregg v. Georgia. Both before and after