Browning-Ferris is a case that only recently came within my ken. One admirable aspect of it is that both the majority and the partial dissent relied on original intent, historically recovered. They reach different conclusions, of course, but no one ever said originalism always provides an easy answer: only that it provides legitimacy.

The dissent in B-F argued that "amercements" were within the range of what Magna Carta limited, and therefore also of what the English Bill of Rights and our Eighth Amendment limited, and that amercements were civil rather than criminal. This claim is worth researching further. (Beyond that, all I can say right now about B-F is that the majority scores by having Scalia on its side, but the dissent wins the Shakespeare-cite event by quoting one of my favorite characters, the Prince of Verona in Romeo and Juliet.)

All of this is a bit to one side of Philip Morris v. Williams, which bypasses the Eighth Amendment altogether and bases its holding directly on 14th Amendment Due Process. Michael and I probably agree that it would be more constitutionally legitimate (assuming the incorporation doctrine!) to curb punitive damages through the "excessive fines" clause of the Eighth Amendment than to do so through Due Process tout court.

Michael has rightly moved a key issue into center place: just what is the tort/crime boundary, and do punitive damages defy it? They are awarded in tort cases, but a common-lawyer of the time of, say, Coke could easily figure that whatever is designed to "punish" must pertain to the criminal justice system.

There is a case for deconstructing the tort-crime boundary. The modern administrative state these days often lays heavy hands on citizens through procedures that are outside the criminal justice system, and therefore, outside the constraints that the Constitution places on that system. Perhaps punitive damages are of this nature, and perhaps we should rethink the assumption that criminal-procedure restraints apply only when the government is willing to admit that a given cases is "criminal."

But, as the old Alka-Seltzer commercial said, that's a spicy meatball. The criminal justice system evolved from the early-medieval tort system for good reasons as well as bad: yes, kings wanted to be in charge of justice. But also, people wanted to be able to rely on the king's peace, not just their own ability to sue their tortfeasors. Browning-Ferris can be read as a refusal to reverse this evolution, and until the issue is thought out further, I can't quite say the majority was wrong about this.