The Bert Company v. Turk, Aplts.

[J-59A-2022 and J-59B-2022] [MO: Donohue, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

THE BERT COMPANY D/B/A : No. 13 WAP 2022

NORTHWEST INSURANCE SERVICES :

: Appeal from the Order of the

: Superior Court entered May 5, 2021

v. : at No. 817 WDA 2019, affirming the

: Judgment of the Court of Common

: Pleas of Warren/Forest County

MATTHEW TURK, WILLIAM COLLINS, : entered June 3, 2019 at No. AD 260

JAMIE HEYNES, DAVID MCDONNELL, : of 2017.

FIRST NATIONAL INSURANCE AGENCY, :

LLC, FIRST NATIONAL BANK, AND FNB : ARGUED: October 25, 2022

CORPORATION :

:

:

APPEAL OF: MATTHEW TURK, FIRST :

NATIONAL INSURANCE AGENCY, LLC, :

FIRST NATIONAL BANK, AND FNB :

CORPORATION :

:

THE BERT COMPANY D/B/A : No. 14 WAP 2022

NORTHWEST INSURANCE SERVICES :

: Appeal from the Order of the

: Superior Court entered May 5, 2021

v. : at No. 975 WDA 2019, dismissing as

: moot the cross-appeal from the

: Judgment of the Court of Common

MATTHEW TURK, WILLIAM COLLINS, : Pleas of Warren/Forest County

JAMIE HEYNES, DAVID MCDONNELL, : entered June 3, 2019 at No. AD 260

FIRST NATIONAL INSURANCE AGENCY, : of 2017.

LLC, FIRST NATIONAL BANK AND FNB :

CORPORATION : ARGUED: October 25, 2022

:

:

MATTHEW TURK :

:

:

v. :

:

:

:

THE BERT COMPANY, NORTHWEST :

BANK, AND NORTHWEST BANCSHARES, :

INC. :

:

:

APPEAL OF: MATTHEW TURK, FIRST :

NATIONAL INSURANCE AGENCY, LLC, :

FIRST NATIONAL BANK, AND FNB :

CORPORATION :

:

:

:

CONCURRING OPINION

JUSTICE WECHT DECIDED: JULY 19, 2023

I join the Majority’s excellent and thorough opinion in full. While I have significant

doubts about much of the jurisprudence that controls the present inquiry and that assigns

punitive damage awards a federal “constitutional status,”1 the Majority has correctly and

faithfully applied the standards (such as they are) set forth by the Supreme Court of the

United States.2

I write separately because the current state of Supreme Court precedent forces

courts to engage in analytical exercises that lack sufficient clarity. Future litigants would

be wise to seek more useful guidance from the Court and perhaps a complete unshackling

of punitive damage awards from the artificial constraints placed upon them by that Court’s

bewildering substantive due process jurisprudence.

The imposition and limitation of punitive damage awards traditionally were

considered matters of state law concern, in deference to our common law heritage and

1 Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 12 (1991).

2 Hereinafter, unless otherwise specified, uses of “the Supreme Court” or “the Court”

refer to the Supreme Court of the United States, rather than this Supreme Court or the

highest courts of the other states.

[J-59A-2022 and J-59B-2022] [MO: Donohue, J.] - 2

to American principles of federalism.3 Nonetheless, and in derogation of this tradition, in

recent decades the Supreme Court has declared that the Due Process Clause of the

Fourteenth Amendment to the United States Constitution4 places “procedural and

substantive constitutional limitations on these awards” and “prohibits the imposition of

grossly excessive or arbitrary punishments on a tortfeasor.”5 The analysis that courts are

now required to conduct in order to detect the federal constitutional borderline—a line

often and erroneously distilled as a 10:1 ratio rule6 comparing punitive to compensatory

damages—is riddled with caveats, qualifiers, and porous “guideposts” which render that

analysis nearly incapable of principled application to concrete cases. Moreover, the

Supreme Court’s jurisprudence has exposed in sharp relief the flaws and fault lines

embedded in the underlying doctrine that itself brought punitive damages into the realm

of federal constitutional adjudication: the judicially-manufactured doctrine of “substantive

due process.”

3 See, e.g., U.S. CONST. amend. X (“The powers not delegated to the United States

by the Constitution, nor prohibited by it to the States, are reserved to the States

respectively, or to the people.”).

4 U.S. CONST. amend. XIV, § 1 (“[N]or shall any State deprive any person of life,

liberty, or property, without due process of law . . . .”). The Fourteenth Amendment’s Due

Process Clause is distinct from the similar provision of the Fifth Amendment, a component

of the original Bill of Rights applicable to the federal government. U.S. CONST. amend. V

(“[N]or shall any person . . . be deprived of life, liberty, or property, without due process

of law . . . .”). In this opinion, references to the Due Process Clause refer to the

Fourteenth Amendment, unless otherwise specified. The case before us concerns only

federal conceptions of due process and does not implicate any provision of the

Pennsylvania Constitution.

5 State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003).

6 This “rule,” moniker, or shortcut traces to the Supreme Court’s surmise in State

Farm that, “in practice, few awards exceeding a single-digit ratio between punitive and

compensatory damages, to a significant degree, will satisfy due process.” Id. at 425.

[J-59A-2022 and J-59B-2022] [MO: Donohue, J.] - 3

Inasmuch as the substantive due process doctrine currently exists in a state of

flux,7 it is worthwhile to discuss that doctrine generally, to examine its theoretical

alternatives, and to consider specifically how well the federal constitutional invalidation of

a state punitive damage award, based merely upon its size, fits within the current

paradigm. Can “excessive” punitive damages, awarded by a jury after an undisputedly

fair trial in state court, deprive a civil defendant of property without federal due process of

law?

I.

The United States Constitution protects unenumerated rights. The infirmity of the

Supreme Court’s precedent that governs the disposition of today’s case, however,

reinforces widely held doubts that the Due Process Clause—in its “substantive” guises—

was ever the proper constitutional anchor for the identification of these rights. Two

provisions of the United States Constitution stand out as far likelier guarantees of

Americans’ unenumerated rights: the Ninth Amendment8 and the Privileges or Immunities

Clause of the Fourteenth Amendment.9 Both of these fundamental mandates provide

straightforward and textual paths to the recognition and protection of unenumerated

7 See Dobbs v. Jackson Women’s Health Org., 142 S.Ct. 2228 (2022) (overruling

Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Se. Pa. v. Casey, 505 U.S.

833 (1992)); id. at 2301 (Thomas, J., concurring) (calling for the reconsideration of all

substantive due process precedents).

8 U.S. CONST. amend. IX (“The enumeration in the Constitution, of certain rights,

shall not be construed to deny or disparage others retained by the people.”).

9 U.S. CONST. amend. XIV, § 1 (“No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States . . . .”). The Privileges

or Immunities Clause of the Fourteenth Amendment is distinguishable from the Privileges

and Immunities Clause of Article IV of the Constitution, which refers to the privileges and

immunities of state rather than national citizenship. See U.S. CONST. art. IV, § 2 (“The

Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the

several States.”).

[J-59A-2022 and J-59B-2022] [MO: Donohue, J.] - 4

rights. Oddly and maddeningly, both provisions have languished in obscurity within the

pages of the Supreme Court’s jurisprudence, while the Court has opted instead to venture

further and further down the oxymoronic path of “substantive due process.”10

If protection from “excessive” punitive damage awards in state courts is properly a

matter of federal constitutional concern (and that is a very big “if”), the Supreme Court

should provide an intellectually rigorous and disciplined justification for this protection as

an unenumerated right grounded either in the Privileges or Immunities Clause or in the

Ninth Amendment. Substantive due process is an inappropriate tool for federal oversight

of state court punitive damage awards.

A. Due Process of Law

The Fourteenth Amendment’s Due Process Clause is expressed in simple terms:

no state shall “deprive any person of life, liberty, or property, without due process of law.”

The natural reading of this provision (indeed, the only textual one) suggests that the

protected rights, i.e., life, liberty, and property, may indeed be deprived so long as the

state provides the requisite “due process of law.” This is an expressly procedural

protection. It is a guarantee that the government must follow a fair process before the

deprivation of any of the important rights identified.11 This species of due process has

come to be known by a facially redundant moniker: “procedural due process.” It is from

this core guarantee that we derive, for instance, the familiar requirements of notice and a

10 See Laurence H. Tribe, Saenz Sans Prophecy: Does the Privileges or Immunities

Revival Portend the Future—or Reveal the Structure of the Present?, 113 HARV. L. REV.

110, 110 (1999) (hereinafter, “Tribe”) (describing the fundamental rights jurisprudence of

the twentieth century as “characterized by misguided efforts to ground such rights in the

concept of due process”).

11 Fundamental though these rights are, the government may deprive individuals of

their lives (e.g., the death penalty), their liberties (e.g., the right to raise their children or

even the right to vote), and their property (e.g., a taking), so long as they are given fair

process and the government does not violate some other constitutional command.

[J-59A-2022 and J-59B-2022] [MO: Donohue, J.] - 5

meaningful opportunity to be heard,12 and the intuitive principle that legal controversies

must be decided by a neutral adjudicator.13 The demand for, and entitlement to,

procedural fairness is a robust protection against arbitrary government action, and it

stands as a pillar of our rule of law.14 Whatever the extent and dimensions of the process

that may be due under the circumstances of a particular case, it is this constitutional

promise that provides the baseline assurance that Americans’ rights will be safeguarded

by fundamentally fair procedures.

Over time, this concern with procedural fairness evolved, developing into a view

that certain governmental actions are intolerable regardless of the process employed.15

The precise moment at which “substantive due process” crystallized as a distinct doctrine

12 See Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (“For more than a century the

central meaning of procedural due process has been clear: ‘Parties whose rights are to

be affected are entitled to be heard; and in order that they may enjoy that right they must

first be notified.’”) (quoting Baldwin v. Hale, 68 U.S. 223, 233 (1863)); Mullane v. Cent.

Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) (“An elementary and fundamental

requirement of due process in any proceeding which is to be accorded finality is notice

reasonably calculated, under all the circumstances, to apprise interested parties of the

pendency of the action and afford them an opportunity to present their objections.”).

13 See Tumey v. State of Ohio, 273 U.S. 510, 523 (1927) (“[I]t certainly violates the

Fourteenth Amendment and deprives a defendant in a criminal case of due process of

law to subject his liberty or property to the judgment of a court, the judge of which has a

direct, personal, substantial pecuniary interest in reaching a conclusion against him in his

case.”).

14 “The history of American freedom is, in no small measure, the history of

procedure.” Malinski v. New York, 324 U.S. 401, 414 (1945) (Frankfurter, J., concurring).

15 See generally JOHN V. ORTH, DUE PROCESS OF LAW: A BRIEF HISTORY 33-72 (Univ.

Press of Kansas 2003) (tracing the origin of substantive due process considerations to

classically cited examples of procedural inequity mentioned in decisions such as Calder

v. Bull, 3 U.S. 386, 388 (1798), such as a man serving as judge in his own case, or a

hypothetical law that would take the property of ‘A’ and give it to ‘B’); id. at 67 (“Although

the A-to-B paradigm had once seemed only another example of procedural irregularity, it

had in time acquired another meaning, substantive rather than procedural. In some cases

property simply could not be taken, no matter by whom, no matter for what.”).

[J-59A-2022 and J-59B-2022] [MO: Donohue, J.] - 6

is a matter of some debate.16 There is little dispute, however, that, by the time of Mugler

v. Kansas17 in 1887, the Supreme Court had embraced the notion that “due process of

law” includes substantive limitations upon the sort of laws that may be enforced,

independent of considerations of the laws’ procedural fairness.18

Any discussion of “substantive due process” must clear the initial hurdle of its

paradoxical framing. The linguistic tension on the face of the doctrine has always been

obvious. As constitutional scholar John Hart Ely famously commented, the phrase is

inherently contradictory, “sort of like ‘green pastel redness.’”19 Judge Richard Posner has

referred to the doctrine as a “ubiquitous oxymoron.”20 Justice Antonin Scalia used the

16 Critics of the doctrine often contend that the first “substantive due process”

decision was the infamous Dred Scott v. Sandford, 60 U.S. 393 (1857). See Casey, 505

U.S. at 998 (1992) (Scalia, J., concurring in part) (“Both Dred Scott and one line of the

cases resisting the New Deal rested upon the concept of ‘substantive due process’ that

the Court praises and employs today. Indeed, Dred Scott was ‘very possibly the first

application of substantive due process in the Supreme Court, the original precedent for

Lochner v. New York and Roe v. Wade.’”) (quoting D. CURRIE, THE CONSTITUTION IN THE

SUPREME COURT 271 (1985)). Although the core of the doctrine developed through the

latter half of the nineteenth century, the first recorded instance of a United States

Supreme Court Justice using the phrase “substantive due process” in an opinion was in

1948. See Republic Nat. Gas Co. v. Oklahoma, 334 U.S. 62, 90 (1948) (Rutledge, J.,

dissenting) (“The basic question here is really one of substantive due process.”).

17 123 U.S. 623 (1887).

18 See Casey, 505 U.S. at 846 (“Although a literal reading of the [Due Process]

Clause might suggest that it governs only the procedures by which a State may deprive

persons of liberty, for at least 105 years, since Mugler v. Kansas, 123 U.S. at 660-61, the

Clause has been understood to contain a substantive component as well, one ‘barring

certain government actions regardless of the fairness of the procedures used to

implement them.’”) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)) (citation

modified).

19 JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 18

(Harvard Univ. Press, 1980) (“[T]here is simply no avoiding the fact that the word that

follows ‘due’ is ‘process.’ . . . Familiarity breeds inattention, and we apparently need

periodic reminding that ‘substantive due process’ is a contradiction in terms—sort of like

‘green pastel redness.’”)

20 Ellis v. Hamilton, 669 F.2d 510, 512 (7th Cir. 1982).

[J-59A-2022 and J-59B-2022] [MO: Donohue, J.] - 7

same word.21 And Professor Akhil Amar has written that, because “the very phrase

‘substantive due process’ teeters on self-contradiction, it does not give us a sound starting

point, or a directional push to proper legal analysis.”22 Inasmuch as my more pedestrian

imagination has always found the phrase perplexing, I take comfort in the knowledge that

such giants of jurisprudence as these share my befuddlement.

Although questions of “substance” and “procedure” may at least arguably overlap

at the margins,23 my understanding is that “due process of law” is, and traditionally was

understood as, predominantly a guarantee of procedural fairness. As its substantive

iterations have burgeoned into an immense body of precedent, the Due Process Clause

has been forced to bear ever greater weight through the Supreme Court’s uncritical

application of the doctrine to vastly different areas of law. It is astounding that, for

instance, protection from a certain (or, as it happens, an uncertain) threshold of punitive

damages is guaranteed by the same constitutional provision that, throughout its history,

has been held to mandate that judges be neutral, to prohibit legislation regulating the

weight of loaves of bread, and to secure the fundamental rights to marry or to rear one’s

children. My primary difficulty with the doctrine is not the various approaches that the

Court has taken to understanding unenumerated rights themselves, but rather the fact

that it has never made sense to discover these rights within the ambit of due process

when there are other plainly more intelligible constitutional sources.

21 United States v. Carlton, 512 U.S. 26, 39 (1994) (Scalia, J., concurring in the

judgment) (“If I thought that ‘substantive due process’ were a constitutional right rather

than an oxymoron . . . .”).

22 Akhil Reed Amar, Substance and Method in the Year 2000, 28 PEPP. L. REV. 601,

631 (2001) (hereinafter, “Amar”).

23 See, e.g., infra nn.46-48 and accompanying text (discussing “arbitrary” and

“vague” laws).

[J-59A-2022 and J-59B-2022] [MO: Donohue, J.] - 8

Of course, not all of the Supreme Court’s substantive due process cases are

created equal. The substantive strand of due process jurisprudence rose to prominence

in the notorious “Lochner era,”24 as the Court began to strike down laws intended to spur

economic or social reform, ostensibly based upon those laws’ perceived intrusion upon

substantive rights like the “freedom of contract.”25 Although these efforts met resistance

at the time from Justices such as Oliver Wendell Holmes, Jr., and Louis Brandeis,26 for

several decades the Court embarked on a project of judicial regulation of ordinary

economic activity. It struck down a law that set maximum hours for working in bakeries.27

It invalidated a statute that outlawed so-called “yellow dog” contracts which restricted

labor union membership.28 It rejected legislation that required minimum wages for

women.29 It overturned a measure that regulated the weight of loaves of bread.30 Though

the Court cast these decisions as protecting some substantive constitutional interest of

employers and industrial producers, they came to be seen for what they were—

24 See Lochner v. New York, 198 U.S. 45 (1905) (overruled by Ferguson v. Skrupa,

372 U.S. 726 (1963)).

25 See Allgeyer v. Louisiana, 165 U.S. 578, 589 (1897).

26 See Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 534 (1924) (Brandeis, J.,

dissenting) (opining that Court’s invalidation of a law regulating the weight of loaves of

bread was “an exercise of the powers of a super-Legislature—not the performance of the

constitutional function of judicial review”); Lochner, 198 U.S. at 75 (Holmes, J., dissenting)

(“[A] Constitution is not intended to embody a particular economic theory, whether of

paternalism and the organic relation of the citizen to the state or of laissez faire.”).

27 Lochner, 198 U.S. 45.

28 Coppage v. Kansas, 236 U.S. 1 (1915) (overruled by Phelps Dodge Corp. v.

N.L.R.B., 313 U.S. 177 (1941)).

29 Adkins v. Children’s Hosp. of the Dist. of Columbia, 261 U.S. 525 (1923) (overruled

by West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)).

30 Jay Burns Baking Co., 264 U.S. at 510-17 (abrogation recognized by Ferguson,

372 U.S. at 729).

[J-59A-2022 and J-59B-2022] [MO: Donohue, J.] - 9

deployment of the Due Process Clause to “strike down laws which were thought

unreasonable, that is, unwise or incompatible with some particular economic or social

philosophy.”31 By the mid-1930s (and confronted with the ongoing reforms of the New

Deal), the Court began its historic course-correction, returning to a constitutional attitude

more deferential to the political branches of government, under which the judiciary

declines to invalidate laws based upon a subjective assessment of their “wisdom, need,

or appropriateness.”32, 33

But some of Lochner’s vestiges remain with us. While it purports to eschew the

Lochner era’s legacy, the Supreme Court has in subtle ways reverted to old habits. As I

explain below in Part II, the Lochner era cast a long shadow over what was to come.

Not all of the due process jurisprudence that flowed from the Lochner era shared

its most reviled attributes, and much of that jurisprudence has survived. Beyond the

seemingly mercurial overriding of legislative judgments on ordinary economic matters,

the Court also began to recognize certain personally held rights that it deemed

fundamental, even though they are not enumerated in the Constitution. Having

31 Ferguson, 372 U.S. at 729.

32 Olsen v. Nebraska ex rel. W. Reference & Bond Ass’n, 313 U.S. 236, 246 (1941)

(“We are not concerned, however, with the wisdom, need, or appropriateness of the

legislation.”); see also Ferguson, 372 U.S. at 730 (“The doctrine that prevailed in Lochner,

Coppage, Adkins, Burns, and like cases—that due process authorizes courts to hold laws

unconstitutional when they believe the legislature has acted unwisely—has long since

been discarded. We have returned to the original constitutional proposition that courts

do not substitute their social and economic beliefs for the judgment of legislative bodies,

who are elected to pass laws.”).

33 Oddly, notwithstanding the Supreme Court’s long-ago-abandonment of Lochner,

this Court has persisted in Lochner-izing under its own vague notions of federal and/or

state due process. See Ladd v. Real Est. Comm’n, 230 A.3d 1096, 1116-20 (Pa. 2020)

(Wecht, J., dissenting); Shoul v. Commonwealth, Dep’t of Transportation, Bureau of

Driver Licensing, 173 A.3d 669, 688-94 (Pa. 2017) (Wecht, J., concurring).

[J-59A-2022 and J-59B-2022] [MO: Donohue, J.] - 10

essentially foresworn the Privileges or Immunities Clause,34 and having persisted in

neglecting the Ninth Amendment, the Supreme Court turned instead to the Due Process

Clause. In Meyer v. Nebraska35 and Pierce v. Society of the Sisters of the Holy Names

of Jesus and Mary,36 for instance, the Supreme Court struck down laws prohibiting,

respectively, teaching foreign languages in schools and sending children to private

religious schools. These laws offended, as the Court saw it, the due process interest of

“the liberty of parents and guardians to direct the upbringing and education of children

under their control.”37 It is notable, as discussed below, that, at the time of these

decisions, the guarantees of the Bill of Rights had not yet been deemed fully applicable

to the states, and it is conceivable that the Court in early “fundamental rights” cases

looked to the Fourteenth Amendment’s Due Process Clause as an alternative to, for

instance, the First Amendment, which at the time provided no protection against the

actions of state governments.38 Indeed, the very use of the Fourteenth Amendment’s

Due Process Clause as the vehicle for “incorporation” of the Bill of Rights against the

states represents a significant strand of substantive due process jurisprudence that ran

34 See Slaughter-House Cases, 83 U.S. 36 (1872).

35 262 U.S. 390 (1923).

36 268 U.S. 510 (1925).

37 Id. at 534-35.

38 See Erwin Chemerinsky, Substantive Due Process, 15 TOURO L. REV. 1501, 1505-

06 (1999) (positing that Meyer and Pierce relied upon substantive due process because

First Amendment protections were not yet incorporated against state governments). Of

course, as discussed below, this does not explain the Court’s failure to notice the Clause

adjacent to the Due Process Clause—the Privileges or Immunities Clause.

[J-59A-2022 and J-59B-2022] [MO: Donohue, J.] - 11

parallel to the Lochner era, and it continues to undergird much of American constitutional

law to this day.39

The Supreme Court’s retreat from Lochner was not a wholesale repudiation of all

judicial review of the substantive content of laws. In West Coast Hotel Co. v. Parrish, the

Court disavowed the erratic and unprincipled approach to economic due process that

characterized the Lochner era,40 but it left some room for judicial consideration of a law’s

substance. The Court explained: “Liberty under the Constitution is thus necessarily

subject to the restraints of due process, and regulation which is reasonable in relation to

its subject and is adopted in the interests of the community is due process.”41 The

Supreme Court developed this principle into what would become the familiar “rational

basis” standard of review.42 In United States v. Carolene Products Co., the Court

explained that “regulatory legislation affecting ordinary commercial transactions is not to

be pronounced unconstitutional unless in the light of the facts made known or generally

39 See, e.g., McDonald v. City of Chicago, 561 U.S. 742 (2010) (holding that the

Second Amendment to the United States Constitution is applicable to the states via the

Due Process Clause of the Fourteenth Amendment); id. at 754-67 (discussing the history

of incorporation under the Due Process Clause); id. at 861 (Stevens, J., dissenting) (“This

is a substantive due process case.”). As discussed below in Part I(C), the Privileges or

Immunities Clause was (and is) better suited to this incorporation task.

40 West Coast Hotel Co., 300 U.S. at 391 (“In each case the violation alleged by those

attacking minimum wage regulation for women is deprivation of freedom of contract.

What is this freedom? The Constitution does not speak of freedom of contract. It speaks

of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting

that deprivation, the Constitution does not recognize an absolute and uncontrollable

liberty. Liberty in each of its phases has its history and connotation. But the liberty

safeguarded is liberty in a social organization which requires the protection of law against

the evils which menace the health, safety, morals, and welfare of the people.”).

41 Id.

42 See, e.g., Nebbia v. People of New York, 291 U.S. 502, 525 (1934); Washington

v. Glucksberg, 521 U.S. 702, 728 (1997) (assessing whether prohibition of physician-

assisted suicide, deemed not to be a fundamental right, is “rationally related to legitimate

government interests”).

[J-59A-2022 and J-59B-2022] [MO: Donohue, J.] - 12

assumed it is of such a character as to preclude the assumption that it rests upon some

rational basis within the knowledge and experience of the legislators.”43 Thus, even

though the era had passed in which the Court would employ the Due Process Clause as

a cudgel to strike down disfavored laws, that Clause continued to serve as a protection

against “arbitrary” or “irrational” laws.44

The Due Process Clause similarly has been held to provide protection against

“vague” laws. In this strand of due process jurisprudence, which likewise gathered

momentum during the Lochner era,45 the Court has held that laws may violate due

process “by taking away someone’s life, liberty, or property under a criminal law so vague

that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless

that it invites arbitrary enforcement.”46 The requirement of “fair notice”—a concept so

43 United States v. Carolene Products Co., 304 U.S. 144, 152 (1938). It is

immediately following this “rational basis” statement that the Carolene Products Court

placed its famous Footnote Four, which forecast the development and application of what

would become strict scrutiny—a “more searching judicial inquiry”—to laws that restrict

fundamental rights or reflect prejudice against “discrete and insular minorities.” Id. at 152

n.4.

44 See Peter J. Rubin, Square Pegs and Round Holes: Substantive Due Process,

Procedural Due Process, and the Bill of Rights, 103 COLUM. L. REV. 833, 844 (2003)

(“Governmental conduct that does not trench [sic] on any fundamental right is also subject

to invalidation as a matter of substantive due process . . . . The ordinary formulation is

that such governmental action must be ‘rationally related to a legitimate governmental

purpose,’ or that it may not be ‘arbitrary’ or ‘irrational,’ or ‘arbitrary and irrational,’ or

‘fundamentally unfair or unjust,’ or ‘purposeless.’”) (footnotes omitted) (citing, inter alia,

Collins v. City of Harker Heights, 503 U.S. 115, 128 (1992); Duke Power Co. v. Carolina

Envtl. Study Group, Inc., 438 U.S. 59, 84 (1978); Usery v. Turner Elkhorn Mining Co., 428

U.S. 1, 15 (1976); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 650 (1974)).

45 See Johnson v. United States, 576 U.S. 591, 618 (2015) (Thomas, J., concurring)

(identifying the first decision in which the Supreme Court invalidated a law on vagueness

grounds as International Harvester Co. of America v. Kentucky, 234 U.S. 216 (1914), in

the heart of the Lochner era).

46 Johnson, 576 U.S. at 595 (citing Kolender v. Lawson, 461 U.S. 352, 357-58

(1983)).

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important in the law of procedural due process—in this context serves the need to “give

the person of ordinary intelligence a reasonable opportunity to know what is prohibited,

so that he may act accordingly.”47

The prohibitions of “arbitrary” and “vague” laws are due process concepts that work

their way into the precedents that govern punitive damages, as discussed below in Part

II. These considerations are in some sense substantive, inasmuch as they are concerned

with the content of laws and the objects that those laws seek to attain. But these branches

of due process jurisprudence are less conceptually challenging than some due process

strains because they do not purport to define substantive rights. Because “[l]iberty implies

the absence of arbitrary restraint,”48 there is room within the doctrine for minimal inquiry

into a law’s means and ends, if only to satisfy the “baseline requirement of ‘rationality.’”49

Moreover, at least in some circumstances, these protections may have a conceivable

connection to procedural concerns. Many laws that are “arbitrary” or “irrational” may be

seen in some sense as failures of procedure, perhaps because they offer no process to

prevent unjustified deprivations or no process to weigh the reasons for the government’s

actions.50 And, as noted above, the void-for-vagueness doctrine’s concern for “fair notice”

47 Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

48 West Coast Hotel Co., 300 U.S. at 392.

49 John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE

L.J. 920, 928 (1973).

50 Indeed, the Court has described “arbitrariness” in such terms. See Daniels, 474

U.S. at 331 (the history of due process “reflects the traditional and common-sense notion

that the Due Process Clause, like its forebear in the Magna Carta, was intended to secure

the individual from the arbitrary exercise of the powers of government. By requiring the

government to follow appropriate procedures when its agents decide to ‘deprive any

person of life, liberty, or property,’ the Due Process Clause promotes fairness in such

decisions.”) (emphasis added; internal citations and quotation marks omitted).

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of prohibited conduct is a principle directly tethered to procedural due process. 51 These

species of protections further differ from other “substantive” due process rights in

precisely what they protect. To say that a law is “arbitrary,” “irrational,” or “vague,” is not

to say that its subject is problematic or otherwise off-limits. The problem lies in the way

the law exists as drafted.

In the realm of unenumerated fundamental rights—the last stop on our brief tour

of due process—how the law is written is of less consequence, and questions of

procedure are eclipsed by substantive focus upon the importance of the right itself.52

Since the latter part of the twentieth century, the Supreme Court has recognized several

of these deeply personal rights. The rights at issue lie at the heart of personal autonomy,

private decision-making, and human dignity, and are deemed fundamental to individual

liberty, although not specifically listed in the Constitution. The conceptual anchor that the

Court chose to use for these unenumerated rights was a strand of constitutional theory

that either sounded directly in due process53 or was derived from an implied right of

privacy, which, in time, came to be understood as a component of the “liberty” protected

by the Due Process Clause.54 Subsequent decisions in this realm grew to recognize

51 See supra n.12; Mullane, 339 U.S. at 314.

52 Where a law concerns a restriction on rights deemed to be “fundamental,” the

Supreme Court generally applies strict scrutiny, rather than the above-referenced rational

basis test. See, e.g., Reno v. Flores, 507 U.S. 292, 302 (1993) (substantive due process

“forbids the government to infringe certain ‘fundamental’ liberty interests . . . no matter

what process is provided, unless the infringement is narrowly tailored to serve a

compelling state interest.”) (citing, inter alia, Collins v. Harker Heights, 503 U.S. 115, 125

(1992); United States v. Salerno, 481 U.S. 739, 746 (1987)).

53 See supra n.38; Meyer, 262 U.S. 390; Pierce, 268 U.S. 510.

54 The Court’s decision in Griswold v. Connecticut, 381 U.S. 479 (1965), which

recognized a right of married persons to use contraceptives, expressly avoided

substantive due process, seeking to sidestep the legacy of Lochner. See id. at 481-82

(“Overtones of some arguments suggest that Lochner v. New York should be our guide.

(continued…)

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numerous rights that the government was seen as having limited authority to restrict, such

as the right to marry,55 the right to use contraceptives,56 the right to consensual sexual

But we decline that invitation . . . .”) (citation omitted). Griswold instead found the right to

“privacy” within the “penumbras” of various provisions of the Bill of Rights, including the

First, Third, Fourth, Fifth, and Ninth Amendments. See id. at 484 (“The foregoing cases

suggest that specific guarantees in the Bill of Rights have penumbras, formed by

emanations from those guarantees that help give them life and substance.”). Over time,

however, the right to privacy came to be understood as a liberty interest protected by

substantive due process. See, e.g., Carey v. Population Services, Intern., 431 U.S. 678,

684 (1977) (“Although ‘(t)he Constitution does not explicitly mention any right of privacy,’

the Court has recognized that one aspect of the ‘liberty’ protected by the Due Process

Clause of the Fourteenth Amendment is ‘a right of personal privacy, or a guarantee of

certain areas or zones of privacy.’”) (quoting Roe v. Wade, 410 U.S. 113, 152 (1973)).

55 Loving v. Virginia, 388 U.S. 1, 12 (1967) (invalidating law prohibiting interracial

marriage) (“The freedom to marry has long been recognized as one of the vital personal

rights essential to the orderly pursuit of happiness by free men.”); Turner v. Safley, 482

U.S. 78 (1987) (invalidating law denying prison inmates the right to marry); Obergefell v.

Hodges, 576 U.S. 644 (2015) (invalidating law denying same-sex couples the right to

marry).

56 Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (invalidating law prohibiting the

distribution of contraception) (“If the right of privacy means anything, it is the right of the

individual, married or single, to be free from unwarranted governmental intrusion into

matters so fundamentally affecting a person as the decision whether to bear or beget a

child.”); Carey, 431 U.S. 678 (invalidating law prohibiting distribution of contraceptives to

minors); Griswold, 381 U.S. 479 (1965) (invalidating law prohibiting use of contraceptives

as applied to married persons).

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activity,57 the right to raise one’s children as one wishes,58 the right to refuse medical

care,59 and the right to decide whether to terminate a pregnancy.60

My difficulty with the Court’s due process precedent has nothing to do with the

recognition of these fundamental rights. In general, I find these cases persuasive in

establishing that such interests fall into the category of “none of the government’s damn

business,” and are sufficiently fundamental to the “realm of personal liberty” to warrant

constitutional protection.61 The problem is the stubborn insistence on cramming these

57 Lawrence v. Texas, 539 U.S. 558, 578 (2003) (invalidating law prohibiting same-

sex sexual activity) (“The petitioners are entitled to respect for their private lives. The

State cannot demean their existence or control their destiny by making their private sexual

conduct a crime. Their right to liberty under the Due Process Clause gives them the full

right to engage in their conduct without intervention of the government.”).

58 Troxel v. Granville, 530 U.S. 57, 65 (2000) (invalidating law allowing any person to

petition for visitation rights with children) (“The liberty interest at issue in this case—the

interest of parents in the care, custody, and control of their children—is perhaps the oldest

of the fundamental liberty interests recognized by this Court.”); Pierce, 268 U.S. 510

(invalidating law prohibiting private parochial schooling); Meyer, 262 U.S. 390

(invalidating law prohibiting the teaching of foreign languages in schools).

59 Cruzan by Cruzan v. Dir., Missouri Dep’t of Health, 497 U.S. 261, 281 (1990)

(recognizing a right to refuse life-sustaining medical care) (“The choice between life and

death is a deeply personal decision of obvious and overwhelming finality. . . . It cannot be

disputed that the Due Process Clause protects an interest in life as well as an interest in

refusing life-sustaining medical treatment.”); Washington v. Harper, 494 U.S. 210 (1990)

(recognizing a prison inmate’s interest in refusing administration of antipsychotic drugs,

but finding the state’s interest satisfactory to justify the compelled administration).

60 Roe, 410 U.S. at 153 (invalidating law prohibiting abortion) (“This right of privacy,

whether it be founded in the Fourteenth Amendment’s concept of personal liberty and

restrictions upon state action, as we feel it is, or, as the District Court determined, in the

Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a

woman’s decision whether or not to terminate her pregnancy.”); Casey, 505 U.S. 833

(reaffirming the “essential holding” of Roe). Roe and Casey were both overruled by

Dobbs, 142 S.Ct. 2228.

61 “It is a promise of the Constitution that there is a realm of personal liberty which

the government may not enter.” Casey, 505 U.S. at 847 (overruled by Dobbs, 142 S.Ct.

2228).

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natural rights into the ramshackle dwelling of “substantive due process.” None of the

Supreme Court’s precedents meaningfully reconciled the “substance” and the “process,”

or even acknowledged that “substantive due process” reflects a contradiction in terms

and a clash of conflicting principles. I am unable to comprehend how the quintessentially

procedural right to “due process of law” manages to house all of the “substantive”

guarantees attributed to it, alongside its intuitive “procedural” protections, coupled with a

protection from arbitrary, irrational, or vague laws, all while separately serving as the

Court’s chosen vehicle for the Fourteenth Amendment’s incorporation of (most of)62 the

Bill of Rights against the States. More to the point here, as I discuss below in Part II,

because the Court’s current explication of the federal constitutional oversight of punitive

damages blends attributes of these various categories of due process, I struggle to make

sense of it within the broader framework. The problem may be that the breadth of this

jurisprudence has stretched the Due Process Clause well beyond what its text can

plausibly support.

That said, the Supreme Court’s attitude toward the requirements of “due process

of law” clearly is not immutable. I suspect that due process has continued to wear its

substantive hat for this long primarily out of fidelity to precedent and regard for public

reliance upon that precedent. But the hat is threadbare. Stare decisis notwithstanding,

the Court has never shied away from periodic alterations to the doctrine, from

reconceptions of the nature of unenumerated rights,63 to the seismic shift represented by

62 Several provisions of the Bill of Rights have not been incorporated against the

states: the Third Amendment, the Seventh Amendment, the Fifth Amendment’s right to

indictment by grand jury, and the Sixth Amendment’s right to a jury selected from the state

and district in which the crime occurred. See U.S. CONST. amend. III, V, VI, VII.

63 See, e.g., Poe v. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting) (stating

that “the full scope of the liberty guaranteed by the Due Process Clause cannot be found

in or limited by the precise terms of the specific guarantees elsewhere provided in the

Constitution,” but rather consists of “a rational continuum which, broadly speaking,

(continued…)

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the demise of the Lochner era, to Dobbs.64 None of the Supreme Court’s

pronouncements were (or are) received at Mount Sinai on stone tablets. The Supreme

Court recently has demonstrated its willingness to reconsider longstanding precedent in

the realm of substantive due process. As the Court says, “stare decisis is not a

straitjacket.”65

For the sake of the future of American civil rights, the time has come for advocates

to develop and advance arguments—even in the alternative—that substantive, yet

unenumerated, protections emanate not from the Due Process Clause, but rather from

what was always their proper home in the Ninth Amendment, the Privileges or Immunities

Clause, or both.

B. The Ninth Amendment

The most obvious constitutional source for the recognition of unenumerated rights

is the provision that expressly refers to their existence. Its language is straightforward.

Immediately following the specific enumeration of particular rights in the first eight

Amendments to the Constitution, the Ninth provides:

includes a freedom from all substantial arbitrary impositions and purposeless restraints”).

Justice Harlan’s dissent in Poe was favorably cited in Griswold, 381 U.S. at 484, and

Casey relied heavily upon it. Casey, 505 U.S. at 848-89. The Court rejected Justice

Harlan’s broader framing in favor of a greater focus upon historical analysis in

Glucksberg, holding that substantive due process “specially protects those fundamental

rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and

tradition,’ and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor

justice would exist if they were sacrificed.’” Glucksberg, 521 U.S. at 720-21 (quoting

Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977) (plurality); Snyder v.

Massachusetts, 291 U.S. 97, 105 (1934); Palko v. Connecticut, 302 U.S. 319, 325

(1937)); see also Dobbs, 142 S.Ct. at 2242 (quoting Glucksberg, 521 U.S. at 721).

64 Dobbs, 142 S.Ct. 2228 (overruling Roe and Casey).

65 Id. at 2280.

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The enumeration in the Constitution, of certain rights, shall not be construed

to deny or disparage others retained by the people.66

Thumbing through the pages of the United States Reporter, however, one could be

forgiven for failing to notice that the Ninth Amendment even exists. Effectively ignored by

the Supreme Court for generations, the Ninth Amendment has long served more as

fodder for scholars than as any meaningful mandate.

Although the meaning of this provision has engendered debate,67 the reason for

its existence is well-documented. At the nation’s founding, the “Anti-Federalists”

advocated for the inclusion of a Bill of Rights within the Constitution, along the lines of the

Declarations of Rights found in numerous state constitutions, such as Pennsylvania’s.

Opponents of this idea, the “Federalists,” feared that no document could comprehensively

list all fundamental rights,68 and that enumerating some might imply that the federal

66 U.S. CONST. amend. IX.

67 See Randy E. Barnett, The Ninth Amendment: It Means What It Says, 85 TEX. L.

REV. 1, 3, 11-21 (2006) (hereinafter, “Barnett”) (discussing different approaches to the

Ninth Amendment that have emerged among scholars, all of which purport to carry the

banner of “originalism”). Assembling the historical evidence, Professor Barnett concludes

that the Ninth Amendment guarantees protection of “individual, natural, preexisting rights”

that were not enumerated, and that its purpose was to “ensure that all individual natural

rights had the same stature and force after some of them were enumerated as they had

before.” Id. at 13, 2. “In other words, it means what it says.” Id. at 80. I share Professor

Barnett’s view.

68 James Wilson, a delegate to both the Constitutional Convention and the

Pennsylvania ratifying convention, gave a speech at the time in which he stated:

All the political writers, from Grotius and Puffendorf down to Vattel, have

treated on this subject; but in no one of those books, nor in the aggregate

of them all, can you find a complete enumeration of rights appertaining to

the people as men and as citizens. . . . Enumerate all the rights of men! I

am sure, sir, that no gentleman in the late Convention would have attempted

such a thing.

Barnett, supra n.67, at 27 (quoting The Debates in the Convention of the State of

Pennsylvania on the Adoption of the Federal Constitution (Dec. 4, 1781), in 2 THE

(continued…)

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government possessed the power to infringe others not so enumerated.69 After all, the

belief in the existence of fundamental rights as a matter of natural law independent of any

governing charter was a fixture of the American polity from its founding moment,

celebrated by the Declaration of Independence’s stirring recognition of the “self-evident”

truth that “all men are created equal, that they are endowed by their Creator with certain

unalienable Rights.”

James Madison—the principal drafter of the Constitution—proposed a solution to

the stalemate. The Ninth Amendment unambiguously rejects the notion that the Bill of

Rights represents the beginning and the end of fundamental rights. It simply makes clear

that the first eight Amendments are not an exclusive list. They were just the rights, in

Madison’s words, that were “singled out.”70

DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL

CONSTITUTION 415, 454 (Jonathan Elliot ed., 2d ed. 1907)).

69 THE FEDERALIST No. 84, at 513 (Alexander Hamilton) (Clinton Rossiter ed., 1961)

(“I go further and affirm that bills of rights, in the sense and to the extent in which they are

contended for, are not only unnecessary in the proposed Constitution but would even be

dangerous. They would contain various exceptions to powers which are not granted; and,

on this very account, would afford a colorable pretext to claim more than were granted.

For why declare that things shall not be done which there is no power to do?”).

70 In his statement to Congress introducing the proposed amendments that would

become the Bill of Rights, James Madison explained:

It has been objected also against a bill of rights, that, by enumerating

particular exceptions to the grant of power, it would disparage those rights

which were not placed in that enumeration, and it might follow by

implication, that those rights which were not singled out, were intended to

be assigned into the hands of the general government, and were

consequently insecure. This is one of the most plausible arguments I have

ever heard urged against the admission of a bill of rights into this system;

but, I conceive, that may be guarded against.

1 Annals of Cong. 456 (Statement of James Madison), Library of Congress, A Century of

Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774–1875,

available at https://memory.loc.gov/cgi-

(continued…)

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Since its ratification, the Ninth Amendment has played effectively no role in

constitutional adjudication. This state of affairs is to the liking of some. Judge Robert

Bork, during the United States Senate hearings on his nomination to the Supreme Court,

famously described the Ninth Amendment as an “ink blot,” and suggested that it is

inappropriate for a court to consider what lies underneath.71 But given the words of that

Amendment, its purpose, and its original meaning, unenumerated rights must exist. The

Constitution says that they do. The founding generation took the step of amending the

Constitution expressly to make clear that those rights exist.

The closest that the Ninth Amendment ever came to a moment in the judicial

spotlight was not in a majority opinion, but rather in Justice Arthur Goldberg’s concurrence

in Griswold.72 Whereas the Court’s majority chose to discover the right to marital privacy

in “penumbras, formed by emanations” of various provisions of the Bill of Rights,73 Justice

Goldberg would have grounded that right on the Ninth Amendment. Believing the right of

marital privacy to be indisputably fundamental, Justice Goldberg opined that failing to

recognize it merely because it is not enumerated in the Bill of Rights would be to “ignore

the Ninth Amendment and to give it no effect whatsoever.”74 Justice Goldberg did not

bin/ampage?collId=llac&fileName=001/llac001.db&recNum=229 (last visited June 1,

2023).

71 “I do not think you can use the Ninth Amendment unless you know something of

what it means. For example, if you had an amendment that says ‘Congress shall make

no’ and then there is an ink blot and you cannot read the rest of it and that is the only

copy you have, I do not think the court can make up what might be under the ink blot . . . .”

Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the United

States: Hearings Before the S. Comm. on the Judiciary, 100th Cong. 249 (1989)

(statement of Robert H. Bork) (quoted in Barnett, supra n.67, at 10).

72 Griswold, 381 U.S. at 486-99 (Goldberg, J., concurring). Chief Justice Earl Warren

and Justice William Brennan joined Justice Goldberg’s concurrence in Griswold.

73 Id. at 484.

74 Id. at 491.

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see the invocation of the Ninth Amendment as an impermissible “broadening” of the

powers of the judiciary; “rather it serves to support what this Court has been doing in

protecting fundamental rights.”75

Justice Goldberg’s approach is consistent with the words and the history of the

Ninth Amendment. And it is there, rather than the Due Process Clause, that courts could

tether unenumerated rights. Of course, as the original Bill of Rights did not apply to the

states, it is arguable whether rights recognized under the Ninth Amendment would apply

to the states automatically, or whether they would need to be incorporated via the

Fourteenth Amendment. The latter is a job well suited to the Privileges or Immunities

Clause.

C. The Privileges or Immunities Clause

Whereas the Ninth Amendment jurisprudence is a virtual tabula rasa, the

Privileges or Immunities Clause precedent is more closely akin to a sawed-off tree

branch.

Just as the original Constitution arose from the ashes of the War of Independence,

the Fourteenth Amendment followed from the clash of arms—and ideas—that tore the

nation apart in the Civil War. Slavery itself was incompatible with civil liberty, but even

after its abolition, widespread violations of fundamental rights persisted throughout the

southern states, as those states deprived both former slaves and their political allies of

myriad freedoms that, if infringed by the federal government, would violate the guarantees

of the Bill of Rights. The states, however, were free to take these unjust actions, because

the Bill of Rights did not protect individuals from their own states.76

75 Id. at 493.

76 See Barron v. City of Baltimore, 32 U.S. 243, 247-48 (1833).

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The Fourteenth Amendment was revolutionary in this regard. Its second sentence

has served as the fountainhead of a great deal of modern jurisprudence, for it contains

the Due Process Clause discussed throughout this opinion, as well as the Equal

Protection Clause. But those provisions are preceded by another clause—one that was

intended to do a great deal of the Fourteenth Amendment’s work:

No State shall make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any State deprive

any person of life, liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection of the laws.77

On its face, the Privileges or Immunities Clause appears to be rather significant,

especially coupled with the understanding that “privileges” and “immunities” were merely

synonyms for “rights.”78 However, shortly after the Fourteenth Amendment’s ratification,

in the Slaughter-House Cases,79 the Supreme Court rendered the Clause an essentially

dead letter. The Court opined that the widely held view of the Fourteenth Amendment as

conferring federal protection of fundamental rights against state infringement was simply

too radical a notion to have been intended, as it would change “the whole theory of the

relations of the State and Federal governments to each other and of both these

governments to the people.”80 The Court drew a sharp line between the rights of federal

77 U.S. CONST. amend. XIV, § 1 (emphasis added). For a recent, comprehensive

historical analysis of these provisions, including the Privileges or Immunities Clause, see

RANDY E. BARNETT & EVAN D. BERNICK, THE ORIGINAL MEANING OF THE FOURTEENTH

AMENDMENT: ITS LETTER AND SPIRIT (The Belknap Press of Harvard Univ. Press 2021).

78 See McDonald, 561 U.S. at 813 (Thomas, J., concurring in part) (“At the time of

Reconstruction, the terms ‘privileges’ and ‘immunities’ had an established meaning as

synonyms for ‘rights.’ The two words, standing alone or paired together, were used

interchangeably with the words ‘rights,’ ‘liberties,’ and ‘freedoms,’ and had been since the

time of Blackstone.”).

79 83 U.S. 36 (1872).

80 Id. at 78.

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citizenship protected by the Privileges or Immunities Clause and those of state

citizenship, which the Court viewed as much broader. The referenced federal rights were

only those “which owe their existence to the Federal government, its National character,

its Constitution, or its laws.”81 As the McDonald Court opined nearly a century and a half

later, this meant that “other fundamental rights—rights that predated the creation of the

Federal Government and that ‘the State governments were created to establish and

secure’—were not protected by the Clause.”82

In dissent, Justice Field predicted that the Slaughter-House Court had rendered

the Fourteenth Amendment “a vain and idle enactment, which accomplished nothing, and

most unnecessarily excited Congress and the people on its passage.”83 His prophecy

would come to fruition a few years later. In United States v. Cruikshank, the Court snuffed

out whatever remained of the Privileges or Immunities Clause, building upon Slaughter-

House to conclude that the First and Second Amendments did not restrict the states

because they protected natural rights that pre-dated the Constitution, and thus were not

“in any manner dependent upon that instrument” for their existence.84 Following

81 Id. at 79.

82 McDonald, 561 U.S. at 754 (quoting Slaughter-House, 83 U.S. at 76). Although

the Slaughter-House Court suggested that the Privileges or Immunities Clause may

protect some enumerated constitutional rights such as the “right to peaceably assemble”

and the “privilege of the writ of habeas corpus,” its focus upon less weighty items—such

as access to “seaports,” “navigable waters,” and “subtreasuries,” and the protection of the

federal government “when on the high seas”—indicated that the provision’s breadth was

much narrower than a contemporary observer likely expected. Slaughter-House, 83 U.S.

at 79.

83 Slaughter-House, 83 U.S. at 96 (Field, J., dissenting).

84 92 U.S. 542, 553 (1876). Although never expressly overruled, the rationale of

Cruikshank was incompatible with later “incorporation” decisions, specifically De Jonge

v. Oregon, 299 U.S. 353 (1937), which held that the First Amendment’s right to peaceable

assembly is applicable to the states. Cruikshank was later rendered wholly obsolete by

McDonald’s incorporation of the Second Amendment. McDonald, 561 U.S. at 791.

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Slaughter-House and Cruikshank, the Privileges or Immunities Clause was moribund, and

the nation was left in essentially the same situation as before the Fourteenth Amendment,

with the guarantees of the Bill of Rights inapplicable to the states.

Slaughter-House and its progeny commonly are regarded as grievous errors and

gross misapplications of the Fourteenth Amendment. Professor Amar has written of

Slaughter-House: “Virtually no serious modern scholar—left, right, and center—thinks

that this is a plausible reading of the Amendment.”85 Notwithstanding this broad

consensus, the Court has never corrected its error. Instead, as noted above, the Court

gradually applied the protections of the Bill of Rights—and other fundamental rights—to

the states through the Due Process Clause. The Court even rejected an express and

thoroughly developed request to correct the Slaughter-House error as recently as

McDonald in 2010, instead adhering to established precedent to declare the Second

Amendment applicable to the states via the Due Process Clause.

In recent decades, Justice Clarence Thomas has developed a compelling historical

argument for a broader reading of the Privileges or Immunities Clause, noting that

Slaughter-House “sapped the Clause of any meaning,” and opining that the case was a

cause of much “disarray” in Fourteenth Amendment jurisprudence.86 Concurring in

McDonald, Justice Thomas conducted a detailed analysis of the historical background

and original meaning of the Privileges or Immunities Clause, concluding that the

85 Amar, supra n.22, at 631 n.178. The extent of this scholarly consensus is

illustrated by the amicus curiae brief submitted to the Court in McDonald by renowned

constitutional law professors Richard L. Aynes, Jack M. Balkin, Randy E. Barnett, Steven

G. Calabresi, Michael Kent Curtis, Michael A. Lawrence, William Van Alstyne, and Adam

Winkler. See Brief of Constitutional Law Professors as Amici Curiae in Support of

Petitioners (hereinafter, “Professors’ Brief”), at 33 n.16, McDonald v. City of Chicago, Ill.,

561 U.S. 742 (2010) (No. 08-1521) (as it concerns the error of Slaughter-House, the

“consensus of preeminent constitutional scholars and authoritative historians of otherwise

disparate viewpoints is truly remarkable”).

86 Saenz v. Roe, 526 U.S. 489, 527 (1999) (Thomas, J., dissenting).

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“evidence overwhelmingly demonstrates that the privileges and immunities of such

citizens included individual rights enumerated in the Constitution,” and that “the Clause

establishes a minimum baseline of federal rights.”87

The history is indeed compelling, and the McDonald majority made no effort to

refute it. Indeed, a historical understanding of the Privileges or Immunities Clause further

supports the view that the Clause also protects unenumerated rights. Although Justice

Thomas himself is critical of the Court’s fundamental rights jurisprudence and has

suggested that he does not favor the same approach to privileges or immunities,88 he has

never disputed that the Privileges or Immunities Clause was intended to protect rights

beyond those expressly listed in the Constitution.89

Scholarly debate about the intended scope of the Privileges or Immunities Clause

focuses upon myriad events of the era, but perhaps no source has been so thoroughly

mined as the series of congressional debates over the Fourteenth Amendment. These

87 McDonald, 561 U.S. at 823, 850 (Thomas, J., concurring in part); see id. at 813-

50 (discussing the history and meaning of the Privileges or Immunities Clause).

88 See Saenz, 526 U.S. at 528 (Thomas, J., dissenting) (“We should also consider

whether the Clause should displace, rather than augment, portions of our equal protection

and substantive due process jurisprudence. The majority’s failure to consider these

important questions raises the specter that the Privileges or Immunities Clause will

become yet another convenient tool for inventing new rights, limited solely by the

‘predilections of those who happen at the time to be Members of this Court.’”) (quoting

Moore v. East Cleveland, 431 U.S. 494, 502 (1977)).

89 See McDonald, 561 U.S. at 854 (Thomas, J., concurring in part) (“Because this

case does not involve an unenumerated right, it is not necessary to resolve the question

whether the Clause protects such rights.”); id. at 854-55 (assuming the Privileges or

Immunities Clause protects unenumerated rights, the “mere fact that the Clause does not

expressly list the rights it protects does not render it incapable of principled judicial

application . . . . To be sure, interpreting the Privileges or Immunities Clause may

produce hard questions. But they will have the advantage of being questions the

Constitution asks us to answer.”); Dobbs, 142 S.Ct. at 2302 (Thomas, J., concurring)

(stating that the “myriad rights that our substantive due process cases have generated”

could be analyzed under the Privileges or Immunities Clause).

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debates were extensively covered in the press at the time—particularly statements made

by U.S. Representative John Bingham, the Amendment’s principal author, and U.S.

Senator Jacob Howard, its floor sponsor in the upper chamber.90 The congressional

record is not dispositive in itself, and scholars have found support for different views within

it. But concerning unenumerated rights, it is important to note the degree to which debate

referenced and incorporated the 1823 decision of Corfield v. Coryell,91 in which Justice

Bushrod Washington, riding circuit on the federal bench here in Pennsylvania, expounded

upon the Privileges and Immunities Clause of Article IV of the Constitution, which

concerns the rights of state citizenship.92 In a passage repeatedly cited during

congressional debates, Justice Washington in Corfield stated:

The inquiry is, what are the privileges and immunities of citizens in the

several states? We feel no hesitation in confining these expressions to

those privileges and immunities which are, in their nature, fundamental;

which belong, of right, to the citizens of all free governments; and which

have, at all times, been enjoyed by the citizens of the several states which

compose this Union, from the time of their becoming free, independent, and

sovereign. What these fundamental principles are, it would perhaps be

more tedious than difficult to enumerate. They may, however, be all

comprehended under the following general heads: Protection by the

government; the enjoyment of life and liberty, with the right to acquire and

possess property of every kind, and to pursue and obtain happiness and

safety; subject nevertheless to such restraints as the government may justly

prescribe for the general good of the whole.93

90 See McDonald, 561 U.S. at 828-35 (Thomas, J., concurring in part); Professors’

Brief, supra n.85, at 14-21.

91 6 F. Cas. 546 (C.C.E.D. Pa. 1823); see McDonald, 561 U.S. at 819-20; 832-35

(Thomas, J., concurring) (discussing Corfield and references to it in congressional

debates); Professors’ Brief, supra n.85, at 10-11, 15-16 (same).

92 See U.S. CONST. art. IV, § 2; supra n.9

93 Corfield, 6 F. Cas. 546, 551-52 (emphasis added).

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Justice Washington described the privileges and immunities of state citizenship

capaciously, invoking unenumerated rights in language echoing the Declaration of

Independence.

In the Senate debates over the Fourteenth Amendment, Senator Howard

described the Privileges or Immunities Clause of the Fourteenth Amendment as

protecting two categories of rights: the “the personal rights guarantied [sic] and secured

by the first eight amendments of the Constitution,” and “the privileges and immunities

spoken of” in Corfield.94 Of those latter rights, Senator Howard echoed Justice

Washington’s expansive language, stating that the privileges and immunities referenced

“are not and cannot be fully defined in their entire extent and precise nature.” 95 Senator

Howard’s speech was widely disseminated in newspapers of the day, and presumably

influenced ordinary people’s understanding of the proposed amendment.96

In Justice Washington’s and Senator Howard’s language, one finds the same idea

that gave rise to the Ninth Amendment—that the Constitution encompasses protection of

fundamental rights beyond those specified; it would be impossible to list them all.

Although I set forth here only the small fraction of the extensive historical record that I find

most compelling in the context of unenumerated rights, and although the import of much

of the history is debated, it is from this and similar evidence that many scholars conclude

that the Privileges or Immunities Clause is not only the “textual basis for protection of the

94 Cong. Globe, 39th Cong., 1st Sess. 2765; see McDonald, 561 U.S. at 832

(Thomas, J., concurring in part).

95 Cong. Globe, 39th Cong., 1st Sess. 2765; see Professors’ Brief, supra n.85, at 16.

96 McDonald, 561 U.S. at 832-33 (Thomas, J., concurring in part).

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liberties in the Bill of Rights,” but also serves as “the natural textual home

for . . . unenumerated fundamental rights.”97

Should the Supreme Court ever be willing to correct its historic Slaughter-House

error, the Privileges or Immunities Clause warrants resuscitation. Whether on its own or

in conjunction with the Ninth Amendment,98 that Clause provides a more historically

sound and practically superior basis for recognizing unenumerated rights—and protecting

them against state infringement—than the Due Process Clause.

D. Unenumerated Rights Adjudication

The Supreme Court’s use of the Due Process Clause as the fount of

unenumerated rights jurisprudence has left both the Ninth Amendment and the Privileges

or Immunities Clause adrift in the constitutional wilderness, in disregard of a command

dating back to Marbury v. Madison: “It cannot be presumed that any clause in the

constitution is intended to be without effect.”99 Undoubtedly, reorientation of

unenumerated rights to a more textually sound foundation in these provisions would not

solve all problems. Disputes would remain over the proper standard to apply, and over

what particular rights should be recognized. A more cogent constitutional analysis would

not magically align everyone’s legal, moral, and political convictions. But it would remove

97 Professors’ Brief, supra n.85, at 9 (quoting Michael J. Gerhardt, The Ripple Effects

of Slaughter-House: A Critique of the Negative Rights View of the Constitution, 43 VAND.

L. REV. 409, 449 (1990)).

98 See Adam Lamparello, Fundamental Unenumerated Rights Under the Ninth

Amendment and the Privileges or Immunities Clause, 49 AKRON L. REV. 179, 191 (2016)

(“The Ninth Amendment’s language means what it says: fundamental rights exist

independently of the Constitution’s text, and citizens are entitled to full enjoyment of those

rights. These fundamental rights are the Fourteenth Amendment’s Privileges or

Immunities.”) (emphasis in original).

99 Marbury v. Madison, 5 U.S. 137, 174 (1803).

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the most obvious and recurring objections to employment of the doctrine of “substantive

due process,” which rests upon perpetually shaky ground.100

The Constitution always has embraced the idea that fundamental rights exist

beyond those specifically enumerated in the text. Any refusal to acknowledge such

fundamental rights would be inconsistent with the Constitution’s letter and meaning, both

at the time of the adoption of the Ninth Amendment in 1791, and at the time of the

ratification of the Fourteenth Amendment in 1868. Although I do not here presume to

identify the definitive standard for identifying such rights, the sorts of analyses that the

Supreme Court long has conducted to assess the “fundamental” status of a right appear

well-suited to such an inquiry. There is no reason that such rights cannot be recognized

on the more stable grounds of the Ninth Amendment and the Privileges or Immunities

Clause, rather than under the dubious “substantive due process” rubric.

II.

Protection from any particular amount of punitive damages has never been

recognized as a fundamental right. With the foregoing understanding of the underlying

law, I turn to the Supreme Court’s decisions that bring us here today. The Majority does

an excellent job of summarizing the principles of law that now govern punitive damages,

which emanate principally from Pacific Mutual Life Insurance Company v. Haslip,101 TXO

100 See Tribe, supra n.10, at 193-94 (“Indeed, perennial dissatisfaction with the whole

concept of substantive due process, both linguistically and historically, in themselves

support the use of the Privileges or Immunities Clause as a less troublesome vehicle both

for selective incorporation and for the elaboration of whatever unenumerated rights merit

protection against the states.”) (footnotes omitted); Mark C. Niles, Ninth Amendment

Adjudication: An Alternative to Substantive Due Process Analysis of Personal Autonomy

Rights, 48 UCLA L. REV. 85, 135 (2000) (“Substantive due process is a weak and flawed

doctrine, and the Ninth Amendment mechanism discussed above—which avoids at least

some of the weaknesses and flaws of substantive due process—would significantly

improve our personal autonomy jurisprudence.”).

101 499 U.S. 1 (1991).

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Production Corp. v. Alliance Resources Corp.,102 BMW of North America, Inc. v. Gore,103

and State Farm Mutual Automobile Insurance Company v. Campbell.104 I commend the

Majority for its effort—because an effort it is—to apply this welter of precedent on its own

terms, as we are bound to do in this matter of federal constitutional law. But it is the

Supreme Court’s handiwork that has led me to this lengthy discussion, and there are

features of that Court’s punitive damages decisions that illustrate why I find that work

untenable. The more time that I spend with Haslip and TXO, Gore and State Farm, the

more problematic that I find their rationales, and the more it seems that the best course

would be to pull the whole line of cases, root and branch, from the exhausted soil of

substantive due process.105

Broadly, there are two overarching problems with these decisions, one doctrinal

and one practical. Each area of analysis induces headaches.

A.

It is important that we be clear about what we are discussing, even if the precedent

that we analyze is not. The fact that I am skeptical of a due process right to a particular

threshold on the amount of punitive damages does not mean that I believe due process

plays no role in the matter. Certainly, as in any trial or legal proceeding, there are

procedural interests requiring procedural protections as such. Deprivations of due

process may lurk here just as they do elsewhere in the law. But generally, I would suggest

102 509 U.S. 443 (1993).

103 517 U.S. 559 (1996).

104 538 U.S. 408 (2003).

105 To be sure, the Supreme Court has no reason whatsoever to notice, much less

heed, my thoughts on the matter, and I am well aware that the Supreme Court has both

the first and the last word on the question.

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that a civil defendant’s federal due process rights are protected by, for instance,

adherence to state law procedures, a fair trial, and a properly instructed jury.106

Judicial tinkering with the amount of a jury’s award, an award bestowed upon an

injured party after full consideration of the facts and following an undisputedly fair trial, is

something different—something substantive. Although such a power to reduce jury

verdicts is a venerable feature of the common law and has long inhered in state court

judges in Pennsylvania and elsewhere,107 the federal “constitutionalization” of this power

is an intrusion that looks little like the application of “due process of law.” Or perhaps

more accurately, it looks like an application of the Due Process Clause from the Lochner

era.

State law is the proper frame of reference, as it was before the Court’s 1991

decision in Haslip. Prior to that decision, limitation of punitive damage awards was solely

a matter of state statutory and common law. Rumblings about allegedly exorbitant

punitive damage awards always have had the ability to generate outrage, and by the

1980s and 1990s, objections to the sheer size of some awards had reached the United

States Supreme Court, which overtly noted its “concern about punitive damages that ‘run

wild.’”108 In 1989, the Court rejected an effort to interpret the Eighth Amendment’s

Excessive Fines Clause109 as a limitation on punitive damage awards (where one might

106 See Haslip, 499 U.S. at 40 (Kennedy, J., concurring) (“Elements of whim and

caprice do not predominate when the jury reaches a consensus based upon arguments

of counsel, the presentation of evidence, and instructions from the trial judge, subject to

review by the trial and appellate courts.”).

107 See Maj. Op. at 24-25 (discussing the pre-Haslip law of Pennsylvania).

108 Haslip, 499 U.S. at 18.

109 U.S. CONST. amend. VIII (“Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.”).

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expect such a limitation to reside, if anywhere), but the Court left open the notion that the

Due Process Clause might do the work, and even invited such a challenge.110

The Court answered that call in Haslip. Many of the Court’s explanations for the

deceptively significant step that it was taking in fact sound like reasons not to take it. The

Court first recognized that punitive damages “have long been a part of traditional state

tort law,”111 and that the Court had long approved of the states’ traditional common-law

approach to such damages’ imposition and limitation.112 The Court quoted numerous

precedents that approved of the common-law approach, and it exalted the discretion of

juries to award damages. The Court even noted that, “[s]o far as we have been able to

determine, every state and federal court that has considered the question has ruled that

the common-law method for assessing punitive damages does not in itself violate due

process.”113 Continuing to raise questions as to why, therefore, it had any business in

this matter, the Court went so far as to highlight that “the common-law method for

assessing punitive damages was well established before the Fourteenth Amendment was

110 Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 276-

77 (1989); see id. at 280 (Brennan, J., concurring) (“I join the Court’s opinion on the

understanding that it leaves the door open for a holding that the Due Process Clause

constrains the imposition of punitive damages in civil cases brought by private parties.”);

id. at 282-83 (O’Connor, J., concurring in part) (“Awards of punitive damages are

skyrocketing . . . . [N]othing in the Court’s opinion forecloses a due process challenge to

awards of punitive damages or the method by which they are imposed.”).

111 Haslip, 499 U.S. at 15 (quoting Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 255

(1984)).

112 Under the traditional common-law approach, the Court explained, “the amount of

the punitive award is initially determined by a jury instructed to consider the gravity of the

wrong and the need to deter similar wrongful conduct,” and the “jury’s determination is

then reviewed by trial and appellate courts to ensure that it is reasonable.” Id.

113 Id. at 17.

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enacted. Nothing in that Amendment’s text or history indicates an intention on the part of

its drafters to overturn the prevailing method.”114

Notwithstanding its candid acknowledgment that the Due Process Clause of the

Fourteenth Amendment in no way suggests any limitation upon the state common law of

punitive damages, the Court elected to manufacture such a limitation. But it had

remarkably little to say about it. It gave one rhetorical justification, noting that just because

the practice of imposing punitive damages is deeply rooted in state law does not mean

that it can never be unconstitutional. But, as for those of us who might be skeptical of the

use of the Due Process Clause to place a substantive limit on the amount of punitive

damage awards, we are simply told that we must “concede”: “One must concede that

unlimited jury discretion—or unlimited judicial discretion for that matter—in the fixing of

punitive damages may invite extreme results that jar one’s constitutional sensibilities.”115

In what would become a mantra in future cases, the Court left deliberately fuzzy

the line at which one’s “sensibilities” should be offended: “We need not, and indeed we

cannot, draw a mathematical bright line between the constitutionally acceptable and the

constitutionally unacceptable that would fit every case.”116 Instead, the Court stated that

“general concerns of reasonableness and adequate guidance from the court when the

case is tried to a jury properly enter into the constitutional calculus.” 117 With those

principles established, the Court turned to the punitive damage award before it, which it

stressed was more than four times the amount of the compensatory damages awarded

(a later-significant 4:1 ratio), and exceeded the criminal fines that could have been

114 Id. at 17-18.

115 Id. at 18 (emphasis added).

116 Id.

117 Id.

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imposed under state law for similar conduct (though surely not the potential

imprisonment). Although this may have been “close to the line,” the award was

permissible because it “did not lack objective criteria,” and thus did not “cross the line into

the area of constitutional impropriety.”118 In upholding the award in this manner, the Court

obscured the significance of what had just happened.

The consequence of the Haslip Court’s reasoning was not lost on Justice Scalia.

In his Haslip concurrence, Justice Scalia laid out the case that punitive damage awards

are not a federal constitutional concern. He gave a thorough history of both punitive

damages and the principles of due process, demonstrating that “it has been the traditional

practice of American courts to leave punitive damages (where the evidence satisfies the

legal requirements for imposing them) to the discretion of the jury,” and that, “when the

Fourteenth Amendment was adopted, punitive damages were undoubtedly an

established part of the American common law of torts.”119 Justice Scalia contended that

this observation was effectively dispositive of questions of due process relating to punitive

damages, and that he would “end the suspense and categorically affirm their validity.”120

Justice Kennedy, at the time, likewise rejected an expansive reading of due

process requirements into the state law of punitive damages, commenting that the jury’s

assessment of punitive damages “has such long and principled recognition as a central

part of our system that no further evidence of its essential fairness or rationality ought to

be deemed necessary.”121 But Justice Kennedy left open the possibility that the size of

some awards may raise due process concerns, inasmuch as “the extreme amount of an

118 Id. at 23-24.

119 Id. at 24-26 (Scalia, J., concurring).

120 Id. at 39-40.

121 Id. at 40 (Kennedy, J., concurring)

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award compared to the actual damage inflicted can be some evidence of bias or

prejudice” on the part of the jury.122 He referenced the potential need for change at the

state level, because federal judges—so we thought—“do not have the authority, as do

judges in some of the States, to alter the rules of the common law respecting the proper

standard for awarding punitive damages and the respective roles of the jury and the court

in making that determination.”123

To Justice O’Connor, punitive damages were a “weapon” with “devastating

potential for harm.”124 Justice O’Connor lauded the application of the Due Process

Clause, but unlike the Haslip majority, she would have invalidated the punitive damage

award at bar. Beyond championing the Court’s novel use of due process in this area,

perhaps Justice O’Connor’s greatest contribution to the precedents to come would be her

invocation of the void-for-vagueness concept in this context, a thread of due process

doctrine, discussed above, which insists that laws—criminal laws, ordinarily—fairly place

people on notice of prohibited conduct.125 In support of this novel application of the

doctrine, Justice O’Connor stated that the “void-for-vagueness doctrine applies not only

to laws that proscribe conduct, but also to laws that vest standardless discretion in the

jury to fix a penalty.”126 And after discussing the procedures that attended the Alabama

jury’s verdict, which she found deeply inadequate, Justice O’Connor declared that the

122 Id. at 41.

123 Id. at 42.

124 Id. at 42 (O’Connor, J., dissenting).

125 See supra nn.46-47 and accompanying text.

126 Haslip, 499 U.S. at 44 (O’Connor, J, dissenting) (citing United States v. Batchelder,

442 U.S. 114, 123 (1979)).

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“vagueness question is not even close.”127 Separately, she would have concluded that

the award violated procedural due process as well.128

Haslip is the original error that begat the ones that followed. With little to explain

why due process was implicated, or how it could be violated, the Court had nonetheless

drawn a line. Where that line lay could not be known. The constitutional principle

appeared to be a matter of avoiding “extremes” that “jar one’s constitutional sensibilities,”

a phrase reminiscent of the “shocking the conscience” language that has appeared in

some substantive due process cases,129 and which resembled the state common-law

standards that the Court now determined it could improve upon.130 Beyond that, a due

process inquiry into a punitive damage award, Haslip says, should focus upon “general

concerns of reasonableness”—a substantive consideration—and “adequate guidance

from the court when the case is tried to a jury”—a matter of procedure.

In the cases that followed, the Court would blend due process concepts

indiscriminately, combining bits of one doctrine with pieces of others. In TXO, a plurality

of the Court stated, “[a]ssuming that fair procedures were followed, a judgment that is a

product of that process is entitled to a strong presumption of validity.”131 Here, the Court

127 Id. at 46.

128 Id. at 53-60.

129 See, e.g., Rochin v. California, 342 U.S. 165, 172 (1952); United States v. Salerno,

481 U.S. 739, 746 (1987) (“So-called ‘substantive due process’ prevents the government

from engaging in conduct that ‘shocks the conscience’ . . . .”) (citing Rochin).

130 See, e.g., Kirkbride v. Lisbon Contractors, Inc., 555 A.2d 800, 803-04 (Pa. 1989)

(articulating the pre-Haslip law of Pennsylvania) (“[A]t some point the amount of punitive

damages may be so disproportionate when compared to the character of the act, the

nature and extent of the harm and the wealth of the defendant, that it will shock the court’s

sense of justice. In those rare instances, the court is given discretion to remit the

damages to a more reasonable amount.”) (emphasis added).

131 TXO, 509 U.S. at 457 (plurality) (emphasis added).

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showed deference to the amount of an award based upon procedural due process

considerations. But the TXO plurality was more interested than the Haslip Court in

explicating the origin of the Court’s claimed authority to control the amount of a jury

verdict, and what it found were a number of early twentieth century substantive due

process decisions that invalidated penalties which were deemed “arbitrary and

oppressive,” or “grossly excessive.”132 Consideration of an award’s “excessiveness” is

certainly a question of substance.

Shaking off the criticism of the respondents, who “unabashedly denigrate[d] those

cases as Lochner-era precedents,” the TXO plurality countered that Justices who

dissented in Lochner joined the cited decisions, and that the respondents did not dispute

that the Fourteenth Amendment “imposes a substantive limit on the amount of a punitive

damages award.”133 Proceeding as if that settled the matter, the Court ever after would

use the terms “grossly excessive” and “arbitrary” to describe the nature of the punitive

damage awards that the Due Process Clause ostensibly precludes.134 The Court also

has collapsed these descriptions, noting in State Farm that, “[t]o the extent an award is

grossly excessive, it furthers no legitimate purpose and constitutes an arbitrary

deprivation of property.”135 Whether “arbitrariness” was intended as a substantive

132 Id. at 454 (citing, inter alia, Seaboard Air Line R. Co. v. Seegers, 207 U.S. 73, 78

(1907); Southwestern Telegraph & Telephone Co. v. Danaher, 238 U.S. 482, 491 (1915);

Waters–Pierce Oil Co. v. Texas (No. 1), 212 U.S. 86, 111 (1909)).

133 TXO, 509 U.S. at 455 (plurality) (internal quotation marks omitted).

134 Gore, 517 U.S. at 562 (“The Due Process Clause of the Fourteenth Amendment

prohibits a State from imposing a ‘grossly excessive’ punishment on a tortfeasor.”) (citing

TXO, 509 U.S. at 454, “(and cases cited)”). “And cases cited” does a great deal of work

in Gore’s citation. See also State Farm, 538 U.S. at 416 (“The Due Process Clause of

the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary

punishments on a tortfeasor.”) (citing, inter alia, Gore).

135 State Farm, 538 U.S. at 417 (citing Haslip, 499 U.S. at 42 (O’Connor, J.,

dissenting)) (emphasis added).

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consideration or a procedural one, here it merged with the Court’s primary emphasis upon

the substantive consideration of “excessiveness.”

Gore, the first of these decisions to actually take the step of invalidating a punitive

damages award as a violation of due process, omitted any reference to a presumption of

validity based upon “fair procedures,” and that consideration did not reappear in State

Farm. Gore likewise was the first to expressly constitutionalize an inquiry referenced in

Haslip and TXO, which would take center stage in State Farm—assessing the amount of

punitive damages as a “ratio” compared to compensatory damages. In the Court’s words,

punitive damages must bear a “reasonable relationship” to compensatory damages.136

But Gore also added an entirely new flavor of due process to the mix: “Elementary

notions of fairness enshrined in our constitutional jurisprudence dictate that a person

receive fair notice not only of the conduct that will subject him to punishment, but also of

the severity of the penalty that a State may impose.”137 Here the Court introduced another

procedural concept—“fair notice.” Further, although not stated explicitly, this new addition

to the punitive damages lexicon was a near word-for-word incorporation of common

formulations of the void-for-vagueness doctrine, an entirely distinct strand of due process

jurisprudence.138 While this recalled Justice O’Connor’s proposal in her Haslip dissent,

she had focused not upon giving “fair notice” to a civil litigant of proscribed conduct, but

rather upon “laws that vest standardless discretion in the jury to fix a penalty.”139 Gore’s

invocation of the void-for-vagueness doctrine focused not upon cabining the jurors, but

136 Gore, 517 U.S. at 581.

137 Id. at 574.

138 Compare id. (requiring that “a person receive fair notice . . . of the conduct that will

subject him to punishment”), with Johnson, 576 U.S. at 595 (void-for-vagueness doctrine

requires that law “give ordinary people fair notice of the conduct it punishes”).

139 Haslip, 499 U.S. at 44 (O’Connor, J., dissenting).

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upon providing warning to the tortfeasor. Adding to the confusion, Gore cited several

cases for the “fair notice” proposition, most of which concerned ex post facto violations

and retroactive application of laws.140

By the time of State Farm, the Court largely had stopped bothering to cite any

decisions prior to Haslip. It was “well established,” the Court declared, “that there are

procedural and substantive constitutional limitations on these awards.” 141 This was

certainly true, but where the procedure ends and the substance begins is less than clear.

From the very beginning of this line of cases, the Court’s primary concern was a

substantive objection to awards of “excessive” size, and the cases it originally cited for its

view of due process undoubtedly are Lochner-era substantive due process decisions.

But procedural language recurs nearly as prominently, as the Court stressed “fair notice,”

“fair procedures,” and providing juries with “adequate guidance from the court.” Drop

hints of protection from “arbitrary” laws, and, while those are working their way in, toss in

some “reasonable relationship” and “legitimate purpose” language, and then sprinkle in a

dash of void-for-vagueness doctrine. An “eye of newt, and toe of frog, wool of bat, and

tongue of dog,” and the due process witches’ brew is complete.142

Given the array of due process principles cobbled and mashed up together, this

area of the law bears little resemblance to any of the recognizable, and currently

recognized, strands of due process jurisprudence. What emerges is an approach that

performs a nominal gesture toward “due process of law” while providing little analysis or

detail, and in practice ends up focusing more upon what a majority of Supreme Court

140 Gore, 517 U.S. at 574 n.22.

141 State Farm, 538 U.S. at 416; but see id. at 431 (Ginsburg, J., dissenting) (“If our

activity in this domain is now ‘well established,’ it takes place on ground not long held.”)

(citation omitted).

142 WILLIAM SHAKESPEARE, MACBETH act 4, sc. 1, l. 14-15.

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Justices at the moment might “hunch” to be “too much.”143 Unable as I am to situate the

Court’s reasoning within the law of due process, its enterprise looks more like an older

sort of case. Perhaps unsurprisingly given its precedential origins, the new law of punitive

damages bears a resemblance to the “doctrine that prevailed in Lochner . . . that due

process authorizes courts to hold laws unconstitutional when they believe the legislature

has acted unwisely.”144 Here, it is the wisdom of juries, long the repository of the moral

conscience of the people, that lies exposed to questioning by a disapproving Court.

The Justices in the minority in these decisions, representing the full spectrum of

judicial philosophies, recognized this problem alongside other significant deficiencies in

the Court’s approach. Justice Kennedy, who hesitated to endorse the Court’s reasoning

in Haslip, but who would later join Gore and write for the Court in State Farm, noted in his

TXO concurrence that the Court’s approach to the “excessiveness” inquiry “comes close

to relying upon nothing more than its own subjective reaction to a particular punitive

damages award in deciding whether the award violates the Constitution.”145 Justice

Ginsburg referred to the Court’s invalidation of the punitive damage award in State Farm

as a “substitution of its judgment” for that of the state’s “competent decisionmakers.”146

Justice Scalia critiqued the Court’s “new rule of constitutional law” as “constrained by no

143 As Judge Ruggero Aldisert wrote, quoting another federal appellate judge,

“decisions may emerge from any of four separate processes: ‘first, the cogitative, of and

by reflection and logomachy; second, aleatory, of and by the dice; third, intuitive, of and

by feeling or “hunching”; and fourth, asinine, of and by an ass.’” RUGGERO J. ALDISERT,

THE JUDICIAL PROCESS: TEXT, MATERIALS AND CASES 524 (2d ed. 1996) (quoting J.C.

Hutcheson, Jr., The Judgment Intuitive: The Function of the “Hunch” in Judicial Decision,

14 CORNELL L. Q. 274, 275-76 (1929)). (Note: The Cornell Law Quarterly was renamed

the Cornell Law Review in 1967.)

144 Ferguson, 372 U.S. at 730; supra n.32.

145 TXO, 509 U.S. at 466-67 (Kennedy, J., concurring).

146 State Farm, 538 U.S. at 422 (Ginsburg, J., dissenting).

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principle other than the Justices’ subjective assessment of the ‘reasonableness’ of the

award in relation to the conduct for which it was assessed.”147 The Court was unable to

slip its Lochner-izing past Justice Scalia, who decried the Court’s reliance upon “Lochner-

era cases”148 which had “invented the notion that an unfairly severe civil sanction amounts

to a violation of constitutional liberties” and that “simply fabricated the ‘substantive due

process’ right at issue.”149

These Justices, particularly Justice Scalia and Justice Ginsburg, further and

persuasively articulated their dismay concerning the Court’s intrusion upon state law.

From Haslip onward, Justice Scalia repeatedly objected that, notwithstanding certain

Justices’ fretting over the size of punitive damage awards, “the Constitution does not

make that concern any of our business,” and that “the Court’s activities in this are an

unjustified incursion into the province of state governments.”150 “The Constitution

provides no warrant for federalizing yet another aspect of our Nation’s legal culture (no

matter how much in need of correction it may be).”151 Justice Ginsburg believed that, by

taking these steps, the Court “unnecessarily and unwisely venture[d] into territory

traditionally within the States’ domain,”152 and that the “Court has no warrant to reform

state law governing awards of punitive damages.”153

147 Gore, 517 U.S. at 599 (Scalia, J., dissenting).

148 TXO, 509 U.S. at 470 (Scalia, J., concurring).

149 Gore, 517 U.S. at 600-01 (Scalia, J., dissenting).

150 Id. at 598; see also TXO, 509 U.S. at 472 (Scalia, J., concurring) (“As I said in

Haslip, the Constitution gives federal courts no business in this area, except to assure

that due process (i.e., traditional procedure) has been observed.”).

151 Gore, 517 U.S. at 599 (Scalia, J., dissenting).

152 Id. at 607 (Ginsburg, J., dissenting).

153 State Farm, 538 U.S. at 438 (Ginsburg, J., dissenting).

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I agree with the Court’s minority in these cases. As a matter of due process

doctrine, Haslip and its progeny are unsupportable. As a matter of federalism, these

decisions represent a needless disruption of the balance between federal constitutional

law and state statutory and common law.

B.

Setting aside the doctrinal inadequacies of Haslip (and progeny), and taking the

Court’s reasoning on its own terms, the application of the standard that the Court has left

for us still leaves much to be desired. As Justice Scalia commented in Gore, acidly but

not inaccurately: “One might understand the Court’s eagerness to enter this field, rather

than leave it with the state legislatures, if it had something useful to say.”154 But as the

Court attempted to make its analysis more concrete and judicially manageable, the folly

of the endeavor became ever more apparent, indeed, unavoidable.

Although a fixture of the Court’s decisions has been a refusal to draw any bright

lines as to what is “too much,” it has attempted to give its amorphous standards some

shape. First were the three Gore “guideposts,” itself a flexible word. As more concisely

summarized in State Farm, these “guideposts” are: “(1) the degree of reprehensibility of

the defendant’s misconduct; (2) the disparity between the actual or potential harm

suffered by the plaintiff and the punitive damages award; and (3) the difference between

the punitive damages awarded by the jury and the civil penalties authorized or imposed

in comparable cases.”155 Although these “guideposts” were likewise criticized as

insufficiently definite,156 they at least reflected some attempt to articulate a standard

154 Gore, 517 U.S. at 602 (Scalia, J., dissenting).

155 State Farm, 538 U.S. at 418 (citing Gore, 517 U.S. at 575).

156 Gore, 517 U.S. at 605 (Scalia, J., dissenting) (“The legal significance of these

‘guideposts’ is nowhere explored, but their necessary effect is to establish federal

(continued…)

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reminiscent of other multifactorial inquires or balancing tests, rather than merely invoking

the Court’s “constitutional sensibilities” and “general concerns of reasonableness” or the

like.157

Then came State Farm. Still seeking to refine the applicable test, the State Farm

Court ended up choosing perhaps the worst of all options—a murky concoction of ratios

and multipliers that insists it is not a bright line, yet commonly is read as one. State Farm

first sought to put some meat on the bones of the first Gore “guidepost”—the degree of

reprehensibility—which it described as the “most important indicium of the

reasonableness of a punitive damages award.”158 The Court distilled some

considerations of “reprehensibility” considered in Gore,159 and added that the “existence

of any one of these factors weighing in favor of a plaintiff may not be sufficient to sustain

a punitive damages award; and the absence of all of them renders any award suspect.”160

But if reprehensibility is the most important factor, it was upstaged by arithmetic.

Ask some lawyers you know what the constitutional limit on punitive damages is, and you

will likely hear tell of a “10:1 ratio rule” comparing the amount of punitive damages to the

compensatory damages awarded. This impression is prevalent notwithstanding the

Supreme Court’s repeated insistence that it “need not,” and indeed “cannot” draw “a

standards governing the hitherto exclusively state law of damages . . . . In truth, the

‘guideposts’ mark a road to nowhere; they provide no real guidance at all.”).

157 Haslip, 499 U.S. at 18.

158 State Farm, 538 U.S. at 419 (quoting Gore, 517 U.S. at 575).

159 These “reprehensibility” considerations are whether: “the harm caused was

physical as opposed to economic; the tortious conduct evinced an indifference to or a

reckless disregard of the health or safety of others; the target of the conduct had financial

vulnerability; the conduct involved repeated actions or was an isolated incident; and the

harm was the result of intentional malice, trickery, or deceit, or mere accident.” Id. (citing

Gore, 517 U.S. at 576-77.

160 Id.

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mathematical bright line between the constitutionally acceptable and the constitutionally

unacceptable that would fit every case.”161 State Farm reiterated this, as is tradition,

noting that the Court has been “reluctant to identify concrete constitutional limits on the

ratio between harm, or potential harm, to the plaintiff and the punitive damages award.”162

The Court “decline[d] again to impose a bright-line ratio which a punitive damages award

cannot exceed.”163

But the Court came close, drawing not a “bright line,” but perhaps a dim one. “Our

jurisprudence and the principles it has now established,” the Court stated, demonstrate

that “in practice, few awards exceeding a single-digit ratio between punitive and

compensatory damages, to a significant degree, will satisfy due process.”164 As this

sentence has become perhaps the most important in the new constitutional law of punitive

damages, it is worth a close look.

At this juncture, it is important to remember what we are talking about. The Court

here engages in a mathematical exercise to assess the size of the punitive damages

award by producing a “ratio,” asking how many times larger the punitive award is than the

compensatory award. Too high of a ratio, the Court states, and the award may be

“excessive,” and thus unconstitutional as a deprivation of “due process.”

A “single-digit” ratio between punitive and compensatory damages is the Court’s

preference—call it 9:1, or maybe 9.999:1. Why “single-digit ratios” were selected as the

line is unstated. “Few” awards exceeding such a ratio will satisfy due process, which

necessarily implies that some such awards are permissible. Further, the ratio is

161 Haslip, 499 U.S. at 18; see also TXO, 509 U.S. at 458 (quoting Haslip); Gore, 517

U.S. at 582-83 (same).

162 State Farm, 538 U.S. at 424.

163 Id. at 425.

164 Id.

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problematic when it exceeds single digits “to a significant degree,” which necessarily

implies that some upward deviation is permissible. 11:1? How about 25:1? The Court

does not say. State Farm does say that Haslip considered 4:1 to be “close to the line of

constitutional impropriety,” and the Court cited that passage again in Gore.165 4:1 is close

to the line, but 9:1 is the line, and awards should not exceed that line “to a significant

degree,” but a “few” that do are nonetheless permissible.

But “because there are no rigid benchmarks that a punitive damages award may

not surpass,” the Court says, these ratios may slide up and down depending upon the

circumstances.166 “Ratios greater than those we have previously upheld[167] may comport

with due process where ‘a particularly egregious act has resulted in only a small amount

of economic damages.’”168 On the other hand: “When compensatory damages are

substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach

the outermost limit of the due process guarantee.”169

This passage is remarkable, for several reasons. First, the Court provided no

guidance as to what a “small amount” of economic damages means. Presumably, it is

the opposite of “substantial.” “Substantial” is a term that appears to be rather important

to the analysis, but the Court gives us no hint of what a “substantial” compensatory

damage award is. Is it a pure dollar amount? $10,000? $100,000? Or is an award

“substantial” in relation to what the plaintiff seeks, or the amount awarded in similar

165 State Farm, 538 U.S. at 425.

166 Id.

167 The Court upheld a ratio of 526:1 in TXO. See TXO, 509 U.S. at 459 (“In support

of its submission that this award is ‘grossly excessive,’ TXO places its primary emphasis

on the fact that it is over 526 times as large as the actual damages award.”).

168 State Farm, 538 U.S. at 425 (quoting Gore, 517 U.S. at 582).

169 Id.

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cases? In this regard, it is important to remember that we are speaking of compensatory

damages, which compensate the plaintiff for a loss. A plaintiff might say that his

compensatory damage award was “substantial” because his loss was substantial. What

bearing should that have upon his ability to recover punitive damages if the tortious

conduct was reprehensible and the consequences grave?170

According to the State Farm Court, it has a significant bearing. If a compensatory

damage award is “substantial,” then punitive damages must fall within a “lesser ratio,

perhaps only equal to compensatory damages.”171 That ratio, of course, would be 1:1.

This is a remarkably restrictive suggestion. But it also calls into question everything the

Court just said. Again, the general rule—the not-bright-line—was the “single-digit ratio,”

pronounced mere sentences earlier. Now, when an award is “substantial,” the

permissible line can shrink to as low as 1:1. But what of the entire range between 1:1

and 9:1? Are those single-digit ratios, which were purportedly within the generally

comfortable constitutional range that the Court had just identified, only permissible when

a compensatory award is not substantial? But if an award is not “substantial,” and thus

reflects a “small amount” of compensatory damages, the Court also stated that the ratio

may be “greater than those we have previously upheld,” so presumably well above the

ordinary range of single-digit ratios. The general rule that the State Farm Court tried to

articulate was, within a paragraph, rendered incomprehensible by the Court’s

standardless caveats and qualifications. To call this a standard is unduly charitable.

I find much greater persuasive power in what Justice Kennedy wrote prior to the

State Farm mishmash: “The Constitution identifies no particular multiple of compensatory

170 Indeed, the suggestion that large compensatory awards necessitate restricted

punitive awards endorses a “volume discount” on tortious harm: The more compensable

harm caused, the lower the comparable scale of permissible punishment.

171 Id. (emphasis added).

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damages as an acceptable limit for punitive awards; it does not concern itself with dollar

amounts, ratios, or the quirks of juries in specific jurisdictions.”172 “Due process of law”

does not reduce to a question of numerators and denominators. The specific contours of

state policy limiting the amount of punitive damage awards are, and should be, matters

of state statutory and common law, including the trial judge’s historic power of remittitur.

As Justice Ginsburg wrote: “In a legislative scheme or a state high court’s design to cap

punitive damages, the handiwork in setting single-digit and 1-to-1 benchmarks could

hardly be questioned; in a judicial decree imposed on the States by this Court under the

banner of substantive due process, the numerical controls today’s decision installs seem

to me boldly out of order.”173

It is here that I perceive the sort of “freewheeling judicial policymaking”174 that less

resembles a constitutional analysis than an effort to rewrite state common law, Erie175 be

damned. But the Due Process Clause is not, to borrow a phrase from the Court, a “font

of tort law to be superimposed upon whatever systems may already be administered by

the States.”176 The “Constitution deals with the large concerns of the governors and the

governed, but it does not purport to supplant traditional tort law in laying down rules of

conduct to regulate liability for injuries that attend living together in society.”177

172 TXO, 509 U.S. at 467 (Kennedy, J., concurring).

173 State Farm, 538 U.S. at 438 (Ginsburg, J., dissenting).

174 Dobbs, 142 S.Ct. at 2248.

175 Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (“Congress has no power to

declare substantive rules of common law applicable in a state whether they be local in

their nature or ‘general,’ be they commercial law or a part of the law of torts. And no

clause in the Constitution purports to confer such a power upon the federal courts.”).

176 Cnty. of Sacramento v. Lewis, 523 U.S. 833, 848 (1998) (quoting Paul v. Davis,

424 U.S. 693, 701 (1976)).

177 Daniels, 474 U.S. at 332.

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In its attempt to set general constitutional rules, the Court has in essence

empowered itself to make policy choices governing state tort law, and not even

necessarily good ones, inasmuch as they arguably undermine countervailing policy

concerns serving the undisputedly valid interests in “punishing unlawful conduct and

deterring its repetition.”178 State Farm, for instance, disapproved of using the defendant’s

wealth as a consideration in setting punitive damages.179 This overlooks the rational

economic proposition that the particularly wealthy are unlikely to be deterred by anything

less than the possibility of a particularly large verdict. And to the extent that the Court

even attempted to draw something close to a “bright line” beyond which punitive damage

awards may not cross, this endeavor invites a straightforward calculation: if a business

can predict with reasonable confidence the amount of harm a tortious course of action

may cause, multiply that number by the magic ratio, and determine that it stands to profit

nonetheless, then the punitive damages fail to serve their function of deterrence. A bit of

unpredictability, and the prospect of an outraged jury, can go a long way in achieving

deterrence. Of course, states nonetheless may wish to cap punitive damages at some

threshold as a matter of state law, as many have done, but this provides no warrant or

authority for the Supreme Court to draw such lines through the federal Due Process

Clause.

But of course, the Court has not actually set any bright line, and it is we, in state

courts, who are called upon to determine precisely the line that “due process” will tolerate

in concrete cases—precisely the line that the Supreme Court declined to draw. The

arguments presented in today’s case suggesting “presumptive unconstitutionality”

178 Gore, 517 U.S. at 568.

179 See State Farm, 538 U.S. at 427 (“The wealth of a defendant cannot justify an

otherwise unconstitutional punitive damages award.”).

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beyond fixed limits demonstrate the folly of this endeavor, as they draw upon tantalizing

language in State Farm suggestive of some such limit, but one so qualified and hedged

as to be utterly unhelpful. Instead, this task of nailing Jell-O to a wall falls to us, as we

parse imprecise and self-contradictory language in a quest to discern a particular dollar

amount that the Justices of the Supreme Court might choose to find acceptable. The

federal “constitutionalization” of punitive damages is not only a commandeering of state

common law; it also impresses state court judges into federal service in an illusory and

quixotic mission, the quintessential fool’s errand.

III.

Can a punitive damage award, merely because of its size rather than any defect

of procedure, deprive a civil defendant of due process of law? My understanding of the

law of the due process, even its “substantive” formulations, leads me to conclude that the

answer is “no.”

Protection from the civil consequences of one’s actions, following a fair trial, is not

a “fundamental right.” Imposition of a punitive damage award is not “arbitrary” or

“irrational,” but rather serves indisputably important interests in punishing reprehensible

conduct and deterring similar such conduct in the future. The award is not the product of

“vagueness” if the jury is properly instructed, if adequate state law procedures are

followed, and if state law places all persons on notice that egregious torts may result in

civil liability that includes punitive damages.

In my view, the size of a punitive damages award, by itself, is simply not a concern

of the federal Due Process Clause.180 If the Supreme Court believes that protection from

some specific threshold of punitive damages is an unenumerated right guaranteed by the

180 As noted, the award’s size can be a state concern, under longstanding principles

of common law. See supra n.130 (referencing the familiar “shock the court’s sense of

justice” standard).

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United States Constitution, then it should abandon the erroneous precedent of Haslip and

its progeny and ascertain, by whatever standard it deems appropriate, whether such a

right emanates from the Ninth Amendment or the Privileges or Immunities Clause.

Otherwise, it should leave state courts and legislatures to go about their business. That

is the essence of federalism.

Bound as I am by the Supreme Court’s pronouncements on this matter of federal

constitutional law, I join the Majority Opinion.

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