The Fifth Amendment Does Not Entail the Constitutionality of Capital Punishment

The Fifth Amendment of the US Constitution anticipates the existence of capital punishment. Justice Scalia declared that it follows that capital punishment is constitutional. He was wrong.

Normative Words in the Constitution: Capital Punishment and Due Process

Some constitutional interpreters, including some who regularly put on robes, argue that capital punishment must be constitutional under the Eighth Amendment because nearly all the drafters, and the great majority of the ratifiers, would not have thought it "cruel and unusual." This reasoning is exactly as sound as that producing the conclusion that there would be no Fifth Amendment "due process of law" objection to restricting the jury to white males in trying a criminal action against a female African American.

Is Trial by Combat Constitutionally Permissible?

I am really only concerned here with trial by combat in a criminal case in the federal courts of the United States. So if your interest is in trial by combat in contract actions in Nebraska, you will have to look elsewhere.