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March 15, 2007

Critical moment for excessive fines clause: 1215, or 1791?

By David M. Wagner

Back at GMUSL, Prof. Bill Bishop used to warn us that, despite his open-book rule, "those who attempt original research in the exam-room will be at a disadvantage." I think I'm under that disadvantage as I weigh Michael's arguments in light of both the majority and dissenting historical analyses in Browning-Ferris.

Michael and Justice O'Connor (who includes her former clerk, Peter Huber, in her cites) make persuasive points about the incomplete (to say the least) distinction between tort and crime during the Common Law's earliest formative era, i.e. from the Conquest to Magna Carta. Since we're all originalists on the day B-F was decided, the question becomes, which is the correct historical mise-en-scene for solving the question? If the equation U.S. Bill of Rights = English Bill of Rights = Magna Carta is more or less correct, at least where the "excessive fines" language is concerned, then the relevant understanding is the one that prevailed at the time of Magna Carta, and therefore Justice O'Connor and Michael are right.

But when push comes to shove it's the U.S. Constitution that we're construing, not the documents on which some its text is admittedly based, so perhaps the correct historical moment for capturing its meaning is the period in which it was drafted and ratified. And as to that, the majority has produces persuasive authority to the effect that the the fines/damages distinction had solidly taken hold well before 1791, and that the word "damage" was available to the drafters if they had wanted to include it alongside "fines" in the Eighth Amendment.

It always risky to predict the counter-arguments of people smarter than oneself, but I'll take that risk and imagine Michael replying something like this: look again at the historical development of punitive damages as described in the previous post, and now imagine that we could assemble every drafter and ratifier of the Eighth Amendment today and show them the meshugass that's going on today in the name of punitive damages, they would say "Well OF COURSE that's part of what we meant by 'excessive fines'!" This argument is strengthened by the fact that (as Michael points out) this is very RECENT meshugass, and therefore scores lower (because less rooted in tradition) on the standard Scalian scale (see Michael H. v Gerald D).

But for text-based originalists, it's always a stretch to base a decision on what the Framers "surely would have" said, instead of what they actually said. (Cf. Justice Thomas's concurrence in U.S. v. Lopez, rejecting the argument that the Framers surely would have blessed the "substantial effects" test for Congress's interstate commerce power, since the clause they actually wrote can be shown from originalist evidence not to have had any such broad range.) That's the ground of my caution on the "excessive fines" clause as a limitation on punies. Yet I could be persuaded that the dissent was right on the "excessive fines" issue in B-F; as to the Due Process holding in Philip Morris, not so much.

As to Haslip -- I'll probably have more to say about it later, but short take: it's regrettable that the challenge there sounded only in Due Process, rather than attempting to revive the Eighth Amendment/excessive fines argument. The late-19th century railroad lawyers were not so timid: they kept nudging the Court toward substantive due process until they got it. Advocates of "excessive fines" limitations on punitive damages should be no less persistent, the more so since their argument is better than mere substantive due process. I note with pleasure the state legislative developments that Michael cites: we originalists nearly always prefer state legislation to federal litigation!

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