You know, when the Constitution itself says that no one shall be deprived of LIFE, liberty, or happiness without due process, it seems to mean that one can be, by the letter of the Constitution, deprived of their life as long as they’ve had due process. So, like slavery prior to abolition, the death penalty is per se Constitutional. I know of no principle that would allow for something that is expressly permitted by the Constitution to be held unconstitutional–although I don’t have to tell anyone that I’m no Constitutional scholar, so maybe there is one out there. Maybe the taking of a life can never result from substantive due process? That’s a question for smarter people than me (who you can find on any street corner), but it doesn’t look like anyone is dealing with the fact that the Constitution expressly says it’s an option. That’s a big hurdle. I do think that the largest single thing that has contributed to the decline of the death penalty in Texas is the new-ish availability of life without parole. In the past a jury could either sentence a murderer to death or take the chance that he would be paroled sometime in the future. So if they wanted to make sure they never killed again, the death penalty was the only option. Now they can be sure he will never get out of prison, while also keeping their conscience clean.