Amicus Curiae Brief — Kenneth J. Jouppi, Petitioner v. Alaska

Supreme Court briefSep 10, 2026

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No. 25-246

IN THE

Supreme Court of the United States

___________

KENNETH JOHN JOUPPI,

Petitioner,

STATE OF ALASKA,

___________

Respondent.

On Writ of Certiorari to the

Supreme Court of Alaska

___________

BRIEF OF EIGHTH AMENDMENT SCHOLARS

AS AMICI CURIAE IN SUPPORT OF

NEITHER PARTY

___________

JILLIAN S. STONECIPHER*

VICTOR T. HILTNER

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

jstonecipher@sidley.com

Counsel for Amici Curiae

September 15, 2026

*Counsel of Record

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

INTEREST OF AMICI CURIAE..........................

SUMMARY OF ARGUMENT ..............................

ARGUMENT .........................................................

I. THE HISTORICAL ROOTS OF THE

RIGHT TO FREEDOM FROM EXCESSIVE

FINES SUPPORT LOOKING TO INDIVIDUAL CIRCUMSTANCES ..............................

A. Magna Carta Recognized Limitations on

Economic Penalties Attuned to Specific

Offenders’ Individual Circumstances .....

B. The English Bill of Rights’ Provision that

“Excessive Fines” “Out Not to Be” “Imposed” Was a Reaction to Notorious Seventeenth-Century Abuses .......................

1. The Star Chamber .............................

2. The Bill of Rights of 1689 ..................

C. Post-1689 Theory and Practice Reaffirmed These Proportionality Principles

II. EARLY AMERICAN SOURCES FURTHER

SUPPORT LOOKING TO INDIVIDUAL

CIRCUMSTANCES.......................................

CONCLUSION .....................................................

APPENDIX

APPENDIX A: List of Amici .................................

(i)

CASES

TABLE OF AUTHORITIES

Page

Browning-Ferris Indus. of Vt., Inc. v. Kelco

Disposal, Inc., 492 U.S. 257 (1989).... 4, 10, 11,

12, 13, 24

Commonwealth v. Morrison, 9 Ky. (2 A.K.

Marsh.) 75 (1819) .......................................

District of Columbia v. Heller, 554 U.S. 570

(2008) ......................................................... 24, 28

Godfrey’s Case, 11 Co. Rep. 42a, 77 Eng.

Rep. 1199 (K.B. 1615) ................................

Harmelin v. Michigan, 501 U.S. 957 (1991) .

Impeachment of Sir Richard Bolton, 4 How.

St. Tr. 51 (Parl. (Ire.) 1641) .......................

John Hampden’s Case, 9 How. St. Tr. 1054

(K.B. 1684)................................................

Jones v. Commonwealth, 5 Va. (1 Call) 555

(1799) ........................................................ 25, 26

Jones v. SEC, 298 U.S. 1 (1936) ...................

Kerry v. Din, 576 U.S. 86 (2015) ...................

McDonald v. City of Chicago, 561 U.S. 742

(2010) ..........................................................

Powell v. McCormack, 395 U.S. 486 (1969)..

Solem v. Helm, 463 U.S. 277 (1983) ............. 2, 25

Timbs v. Indiana, 586 U.S. 146 (2019)......... 3, 7,

10, 23

The Case of William Earl of Devonshire, 11

How. St. Tr. 1353 (Parl. 1689) ........... 15, 16, 18

Townsend v. Hughes, 2 Mod. 150, 86 Eng.

Rep. 994 (C.P. 1677) ...................................

Trump v. Barbara, 146 S.Ct. 2438, 225

L.Ed.2d 876 (2026) .....................................

United States v. Bajakajian, 524 U.S. 321

(1998) .................................................... 1, 2, 4, 16

Weems v. United States, 217 U.S. 349

(1910) ........................................................ 14, 15

iii

TABLE OF AUTHORITIES—continued

Page

CONSTITUTIONAL PROVISIONS AND STATUTES

Pennsylvania Frame of Government of 1682,

Laws Agreed Upon in England&c., art.

XVIII, reprinted

in 1 Schwartz,

Documentary History (1682) ......................

N.Y. Charter of Liberties and Privileges

(1683), reprinted in 1 Schwartz,

Documentary History. ................................

Bill of Rights of 1688, 1 Will. & Mar., 2d

Sess., ch. 2, 9 Stat. at Large 67 (1764 ed.)

Magna Charta, 9 Hen. III, ch. 14 (1225), 1

Stat. at Large 1 (1762 ed.) .........................

Va. Decl. of Rts., § 9 ......................................

1786 Va. Laws ch. 64, Gen. Assemb. (Va.

1786) ...........................................................

SCHOLARLY AUTHORITIES

Akhil Reed Amar, Sixth Amendment First

Principles, 84 Geo. L.J. 641 (1996) ............

John D. Bessler, Lost and Found: The

Forgotten Origins of the “Cruel and

Unusual Punishments” Prohibition, 14

Brit. J. Am. Legal Stud. 213 (2025)......... 10, 14,

15, 19

Christian R. Burset, Why Didn’t the

Common Law Follow the Flag?, 105 Va. L.

Rev. 483 (2019) ...........................................

Beth A. Colgan, Reviving the Excessive

Fines Clause, 102 Calif. L. Rev. 277

(2014) ..........................................................

TABLE OF AUTHORITIES—continued

Steven G. Calabresi, Sarah E. Agudo &

Kathryn L. Dore, State Bills of Rights in

1787 and 1791: What Individual Rights

Are Really Deeply Rooted in American

History and Tradition?, 85 S. Calif. L.

Rev. 1451 (2012) .........................................

Donald A. Dripps, The “Cruel and Unusual”

Legacy of the Star Chamber, 1 J. Am. Con.

Hist. 139 (2023). .........................................

H.D. Hazeltine, The Influence of Magna

Carta on American Constitutional

Development, 17 Colum. L. Rev. 1 (1917)..

Calvin R. Massey, The Excessive Fines

Clause and Punitive Damages: Some

Lessons from History, 40 Vand. L. Rev.

1233 (1987) .................................................

Nicholas M. McLean, Livelihood, Ability to

Pay, and the Original Meaning of the

Excessive Fines Clause, 40 Hastings

Const. L.Q. 833 (2013) ...............................

Nicholas M. McLean, The Law of Minimum

Entitlements 59 U. Mich. J.L. Reform 1

(forthcoming 2026) .....................................

John

Stinneford,

Experimental

Punishments, 95 Notre Dame L. Rev. 39

(2019) ..........................................................

John F. Stinneford, Rethinking Proportionality under the Cruel and Unusual Punishments Clause, 97 Va. L. Rev. 899 (2011) ...

Page

OTHER AUTHORITIES

2 Acts of the Privy Council of England (W.L.

Grant et al., eds. 1910)...............................

TABLE OF AUTHORITIES—continued

Page

Anon., A Letter to a Gentleman at Brussels,

Containing an Account of the Causes of the

Peoples Revolt from the Crown (London,

1689) ...........................................................

A Discourse Concerning the High Court of

Star Chamber (1637), reprinted in The

Star Chamber (London, John Southerden

Burn ed. 1870) ............................................

Allan Nevins, The American States During

and After the Revolution, 1775-1789

(1927) ..........................................................

Benjamin L. Oliver, The Rights of an

American Citizen (1832)............................. 3, 28

Bernard Bailyn, The Ideological Origins of

the American Revolution (1967) ................

Cesare

Beccaria,

Crimes

and

Punishments and Other Writings (Richard

Bellamy ed., Richard Davies trans.,

Cambridge Univ. Press 1995) (1764) .......

8 David Hume, The History of England from

the Invasion of Julius Caesar to the

Revolution in 1688 (1763) .........................

David S. Lovejoy, The Glorious Revolution

in America (1987) .......................................

8 Debates of the House of Commons: From

the Year 1667 to the Year 1694 (Anchitell

Grey ed. 1763) ............................................

Edmund

Randolph,

Essay

the

Revolutionary History of Virginia (c. 18091813), reprinted in 1 Bernard Schwartz, A

Documentary History (1971) ......................

2 Edward Coke, The Second Part of the

Institutes of the Laws of England (1642) ..

TABLE OF AUTHORITIES—continued

Page

Faith Thompson, Magna Carta: Its Role in

the Making of the English Constitution,

1300-1629 (1948) ........................................

Giles Jacob, A New Law-Dictionary (3d ed.,

Savoy, E. & R. Nutt & R. Gosling 1736)

1762) ...........................................................

2 Henry Hallam, The Constitutional History

of England From the Accession of Henry

VII to the Death of George II (2d. ed.,

London, John Murray 1829) ......................

4 Henry Walter, A History of England

(London, J.G.F. & J. Rivington 1834) .......

1 Joseph Chitty, A Practical Treatise on the

Criminal Law (Philadelphia, E. Earle

1819) ........................................................... 2, 22

J.R. Tanner, English Constitutional

Conflicts of the Seventeenth Century 16031689 (1961 ed.) ...........................................

Jeremiah Dummer, A Defence of the NewEngland Charters (1721) ...........................

2 John Bouvier, A Law Dictionary (14th ed.

1875) ...........................................................

3 John Campbell, Lives of the Lord

Chancellors and Keepers of the Great Seal

of England (2d Am. Ed. from the 3d

London ed., Blanchard & Lea 1847) ..........

John D. Bessler, The Baron and the

Marquis: Liberty, Tyranny, and the

Enlightenment Maxim That Can Remake

American Criminal Justice (2019) ............

John C. Fox, The History of Contempt of

Court (1927) ...............................................

John H. Langbein, The Origins of Adversary

Criminal Trial (2003) ............................... 14, 15

vii

TABLE OF AUTHORITIES—continued

Page

John Phillip Reid, The Ancient Constitution

and the Origins of Anglo-American

Liberty (2005) .............................................

Lois G. Schwoerer, The Declaration of

Rights, 1689 (1981) ...................... 6, 7, 8, 10, 16

1 Bernard Schwartz, The Bill of Rights: A

Documentary History (1971) ................. 6, 23, 25

2 Bernard Schwartz, The Bill of Rights: A

Documentary History (1971) ......................

Sollom Emlyn, Preface, in 1 A Complete Collection of State-Trials, and Proceedings for

High-Treason, and Other Crimes and Misdemeanors (London, J. Walthoe Sen. et al.

1730) ..........................................................

Thomas M. Cooley, A Treatise on the

Constitutional Limitations Which Rest

upon the Legislative Power of the States of

the American Union (Boston, Little,

Brown & Co. 1868) .................................... 3, 28

Thomas Madox, The History and Antiquities

of the Exchequer of the Kings of England

(2d ed., London, William Owen &

Benjamin White 1769) ...............................

Thomas Pitt Taswell-Langmead, English

Constitutional History: From the Teutonic

Conquest to the Present Time (10th ed.,

1946) ...........................................................

Thomas Tayler, The Law Glossary (1866

ed.) ..............................................................

Walter J. Baldwin, Punishment Without

Crime; or Imprisonment for Debt (1813) ...

4 William Blackstone, Commentaries on the

Laws of England (1769) ................... 3, 11, 20, 21

viii

TABLE OF AUTHORITIES—continued

William Eden, Principles of Penal Law (3d

ed., London, B. White & T. Cadell 1775)...

William Hudson, A Treatise on The Court of

Star Chamber (1635), in 2 Francis

Hargrave, Collectanea Juridica (1792) .....

William Rawle, A View of the Constitution of

the United States of America (2d ed.,

1829) ...........................................................

William Sharp McKechnie, Magna Carta: A

Commentary on the Great Charter of King

John (2d ed. 1914) ......................................

Page

INTEREST OF AMICI CURIAE

Amici curiae John D. Bessler, Nicholas M. McLean,

and John F. Stinneford are law professors who study

and write about the Eighth Amendment. 1 They have

spent years examining the historical record and publishing scholarship on the Amendment’s origins, including its historical predecessors and the purpose of

its prohibition on cruel and unusual punishment and

excessive fines. Amici have an interest in assisting the

Court to reach a decision informed by a complete and

historically accurate understanding of the Amendment’s origins, purposes, and scope.

SUMMARY OF ARGUMENT

“The text and history of the Excessive Fines Clause,”

this Court has explained, “demonstrate the centrality

of proportionality to the excessiveness inquiry.” United

States v. Bajakajian, 524 U.S. 321, 335 (1998). But

how should courts assess proportionality, and what

considerations should guide and discipline that inquiry? This case asks the Court to clarify one important aspect of the excessiveness calculus: whether

“courts may consider the gravity of the underlying offense purely in the abstract” or whether they should,

instead, “consider the gravity of the specific defendant’s wrongdoing.” Pet’r Br. i. This brief—which reviews the constitutional and common-law backdrop

1 Biographical statements are included in the appendix. Pursuant to Supreme Court Rule 37, amici state that no counsel for any

party authored this brief in whole or in part, and that no entity

or person other than amici and their counsel made any monetary

contribution toward the preparation and submission of this brief.

from which the Excessive Fines Clause emerged—offers historical context for the Court as it considers this

question.

The Excessive Fines Clause derived from English

antecedents. 2 The traditional common law right to

freedom from excessive monetary sanctions—recognized in Magna Carta and reaffirmed in the English

Bill of Rights of 1689—was widely regarded as fundamental by the seventeenth and eighteenth centuries.

From the beginning, this common law right regulated

the excessiveness of economic sanctions in ways that

necessarily took into account offenders’ individual circumstances: punishment was to be set “after the manner of fault” and was to leave the offender his “contenement,” or means of livelihood. This latter principle,

often captured by a Latin maxim drawn from the language of Magna Carta, “salvo contenemento,” 3 supplied

limits on punishment based on an individual offender’s

ability to pay. 4

2 The Excessive Fines Clause “was based directly on Art. I, § 9

of the Virginia Declaration of Rights (1776),” Solem v. Helm,

463 U.S. 277, 285 n.10 (1983), and its language was drawn “verbatim from the English Bill of Rights of 1689.” Bajakajian,

524 U.S. at 335. As a whole, the Eighth Amendment’s text differs

only in that “shall not be” replaces “ought not to be” in the two

earlier documents, and in minor orthographic variations in the

English version. See Solem, 463 U.S. at 284-85.

3 See Nicholas M. McLean, Livelihood, Ability to Pay, and the

Original Meaning of the Excessive Fines Clause, 40 Hastings

Const. L.Q. 833, 836-38, 853-72 (2013) (discussing this concept);

Beth A. Colgan, Reviving the Excessive Fines Clause, 102 Calif. L.

Rev. 277, 324 (2014) (explaining that, historically, “fines that

serve to impoverish would be prohibited”).

4 See, e.g., 1 Joseph Chitty, A Practical Treatise on the Criminal

Law 490 (Philadelphia, E. Earle 1819); accord William Eden ,

Principles of Penal Law 73 (3d ed., London B. White & T. Cadell

In America, as in England, these principles shaped

and influenced early understandings of what it meant

to enjoy the right to freedom from “excessive fines.”

This is demonstrated by colonial declarations of rights,

early decisional law, the American editions of leading

English treatises, and the influential works of nineteenth-century American commentators. 5

ARGUMENT

I. THE HISTORICAL ROOTS OF THE RIGHT

TO FREEDOM FROM EXCESSIVE FINES

SUPPORT LOOKING TO INDIVIDUAL CIRCUMSTANCES

A. Magna Carta Recognized Limitations on

Economic Penalties Attuned to Specific

Offenders’ Individual Circumstances

The constitutional right to freedom from excessive

monetary sanctions “traces its venerable lineage back

to at least 1215, when Magna Carta … required that

economic sanctions ‘be proportioned to the wrong’ and

‘not be so large as to deprive an offender of his livelihood.’” Timbs v. Indiana, 586 U.S. 146, 151 (2019)

(quoting Browning-Ferris Indus. of Vt., Inc. v. Kelco

Disposal, Inc., 492 U.S. 257, 271 (1989)) (alterations

1775); 4 William Blackstone, Commentaries on the Laws of England *371-73 (1769) [Blackstone, Commentaries]; see infra Sections I.A–B.

5 See, e.g., Thomas M. Cooley, A Treatise on the Constitutional

Limitations Which Rest Upon the Legislative Power of the States

of the American Union 328 (Boston, Little, Brown & Co. 1868) (“A

fine should have some reference to the party’s ability to pay it.”)

[Cooley, Constitutional Limitations]; Benjamin L. Oliver, The

Rights of an American Citizen 185 (1832) (stating that, when fines

are assessed, “[a] man’s farm or stock in trade, ought never to be

made a sacrifice, to the ruin of himself and the distress of his family”).

omitted); accord Bajakajian, 524 U.S. at 335. The barons who assembled at Runnymede in 1215 and forced

King John to agree to Magna Carta “sought to reduce

arbitrary royal power, and in particular to limit the

King’s use of amercements as a source of royal revenue, and as a weapon against enemies of the Crown.”

Browning-Ferris, 492 U.S. at 270-71. Amercements

were “the most common criminal sanction in 13th-century England,” id. at 269, and were a “medieval predecessor[ ] of fines.” Bajakajian, 524 U.S. at 335.

Chapter 14 of Magna Carta (which was first codified

in statute in 1225) provides in relevant part:

A Free-man shall not be amerced for a small fault,

but after the manner of the fault; and for a great

fault after the greatness thereof, saving to him his

contenement [“salvo contenemento suo”]; (2) and a

Merchant likewise, saving to him his merchandise; (3) and any other’s villain than ours shall be

likewise amerced, saving his wainage, if he fall

into our mercy.

Magna Charta, 9 Hen. III, ch. 14 (1225), 1 Stat. at

Large 1, 6-7 (1762 ed.). 6

This Chapter limited abuses by, among other things,

“requiring that the amount of the amercement be proportioned to the wrong,” and prohibiting amercements

so severe as to take an offender’s “contenement,”

“wainage,” “merchandise,” or—as simply put in modern translations—their “livelihood.” Browning-Ferris,

492 U.S. at 271.

6 The amercements chapter of Magna Charta, originally numbered as Chapter 20, was renumbered as Chapter 14 in the version codified by statute in 1225.

This command of Chapter 14 was, by its nature, individualized. For example, “to save a man’s ‘contenement’ was to leave him sufficient for the sustenance of

himself and those dependent on him.” William Sharp

McKechnie, Magna Carta: A Commentary on the Great

Charter of King John 293 (2d ed. 1914). This meant

that “[i]n no case could the offender be pushed absolutely to the wall: his means of livelihood must be

saved to him.” Id. at 287. 7 By protecting “merchandise”

and “wainage,” Magna Carta instructed that the circumstances of the individual defendant must be considered and punishment must be calibrated to ensure

the defendant maintained a minimum core level of economic subsistence. 8

The principles set forth in Magna Carta were confirmed and restated repeatedly in legislation during

the thirteenth, fourteenth, and fifteenth centuries. See

Faith Thompson, Magna Carta: Its Role in the Making

of the English Constitution, 1300-1629 10 (1948). “Following Magna Charta a writ to enforce the concept of

7 See also Giles Jacob, A New Law-Dictionary (3d ed., Savoy, E.

& R. Nutt & R. Gosling 1736) (unpaginated) (defining “contenement” as “that which is necessary for the Support and Maintenance of Men, agreeable to their several Qualities, or States of

Life”).

8 Coke describes wainage as “the contenement or countenance

of the villen,” 2 Edward Coke, The Second Part of the Institutes of

the Laws of England 28 (1642), and also suggests (relying on Ranulf de Glanvill’s late twelfth-century treatise) that the protections

of Chapter 14 were “made in affirmance of the common law[.]” Id.

at 27.

salvo contenemento developed, fourteenth-century petitions tested it, and other laws confirmed it.” Lois G.

Schwoerer, The Declaration of Rights, 1689 91 (1981)

[hereinafter Schwoerer, Declaration]; see also Hyams,

Peasants 44, 76, 14344 (impact of poverty as limiting

amercements); Thomas Madox, The History and Antiquities of the Exchequer of the Kings of England 208 (2d

ed., London, William Owen & Benjamin White 1769)

(similar; noting early cases in which amercements

were set such that an offender could “sav[e] the

Maintenance of himself, his Wife and Children”).

For subsequent generations, Magna Carta would

serve as “a sacred text, the nearest approach to an irrepealable ‘fundamental statute’ that England has

ever had.” 1 Frederick Pollock & Frederic William

Maitland, The History of English Law Before the Time

of Edward I 152 (1895). “In age after age a confirmation of it will be demanded and granted as a remedy

for those oppressions from which the realm is suffering[.]” Id. In this way, a document that was a product

of thirteenth century feudal class struggles came to

serve as a “basis for molding the foundations of a Parliamentary monarchy,” as a “vehicle to enable the Parliamentary leaders to resist the misdeeds of Stuart

Kings four centuries later,” and, ultimately, as “the

core of the rights of Englishmen asserted by American

colonists[.]” 1 Bernard Schwartz, The Bill of Rights: A

Documentary History 7 (1971) [hereinafter Schwartz,

Documentary History].

B. The English Bill of Rights’ Provision that

“Excessive Fines” “Ought Not to Be” “Imposed” Was a Reaction to Notorious Seventeenth-Century Abuses

A series of notorious and well-chronicled abuses in

the seventeenth century tested the ancient right to

freedom from oppressive monetary punishment. The

courts whose infamous conduct prompted the English

Bill of Rights’ provision that “excessive Fines” “ought

not to be” “imposed” shared a common failing—setting

fines with an eye to the Crown’s needs, rather than the

fault and circumstances of the person before them.

The Star Chamber

“In the early seventeenth century, the levying of

fines became entangled in the constitutional and political struggles between the king and his parliamentary

critics.” Schwoerer, Declaration 91. When, from 1629

to 1640, Charles I sought to govern without convening

Parliament, the absence of Parliamentary appropriations made finding new ways of raising revenue essential; so “the King’s financial advisers devised” “expedients of a novel kind” “to take advantage of the law’s

technicalities” to benefit the public fisc. J.R. Tanner,

English Constitutional Conflicts of the Seventeenth

Century 1603-1689 74 (1961 ed.). The machinery of

criminal justice—and the High Court of Star Chamber, in particular 9—was a useful means to that end.

The Star Chamber took “every opportunity [to] impos[e] such fines as should supply the king with a considerable revenue, in the absence of parliamentary

grants.” 4 Henry Walter, A History of England 135

(London, J.G.F. & J. Rivington 1834); see Roger Lockyer, The Early Stuarts: A Political History of England,

1603-1642 261 (1989) (observing that “the impetus behind [a] spate of prosecutions in the 1630s was financial”); see also Timbs, 586 U.S. at 152 (observing that

“[t]he 17th century Stuart kings, in particular, were

criticized for using large fines to raise revenue, harass

9 As a prerogative court, the Star Chamber was considerably

less independent from the Crown than the common law courts

were.

their political foes, and indefinitely detain those unable to pay”).

In response, “proponents of the common law sought

to apply the principle of Magna Charta to fines imposed by the court[.]” Schwoerer, Declaration 91. A

1615 decision reported by Coke—Godfrey’s Case,

11 Co. Rep. 42a, 43a–44b, 77 Eng. Rep. 1199, 1202–03

(K.B. 1615)—had held that the “reasonableness of [a]

fine shall be adjudged by the justices; and if it appears

to them to be excessive, it is against law, and shall not

bind; for excessus in re qualibet jure reprobatur communi” 10 and that “[a]n excessive fine at the will of the

lord, shall be said oppression of the people.”

The Star Chamber disregarded such limitations,

however, and “imposed heavy fines”—particularly “on

the king’s enemies[.]” Schwoerer, Declaration 91. 11

The court became “trenched … to the destruction of the

offender’s estate and utter ruin of him and his posterity.” William Hudson, A Treatise on The Court of Star

Chamber (1635), reprinted in 2 Francis Hargrave, Collectanea Juridica 36 (1792).

A tract published in 1637 contrasted the contemporary practices of the Star Chamber with earlier practices under John Whitgift (Archbishop of Canterbury

from 1583 until 1604), noting that “Archbishop Whitgift did constantly in this Court maintain the liberty of

the Free Charter that none ought to be fined but salvo

10 Lit. “Excess in any thing is reprehended by common law.”

2 John Bouvier, A Law Dictionary 126 (14th ed. 1875).

11 The Star Chamber’s imposition of enormous fines served

multiple purposes: Not only could they supply revenue, but “an

unpayable fine would cause the offender to be imprisoned, in effect, at the pleasure of the crown.” Donald A. Dripps, The “Cruel

and Unusual” Legacy of the Star Chamber, 1 J. Am. Const. Hist.

139, 179 (2023).

contenimento.” A Discourse Concerning the High Court

of Star Chamber (1637), reprinted in The Star Chamber 4,10 (London, John Southerden Burn ed. 1870).

During an impeachment trial in the Irish House of

Lords in March 1641, one advocate declared:

“[T]hough Magna Charta be so sacred for Antiquity;

though its [C]onfirmation be strengthened by [O]ath,

though it be the proper [D]ictionary that expounds

meum and tuum,[ 12] and assigns every Subject his

[B]irthright, it only survives in the Rolls, but is miserably rent and torn in the Practice. These [W]ords,

Salvo Contenemento, live in the Rolls, but they are

dead in the Star-[C]hamber.” Impeachment of Sir

Richard Bolton, 4 How. St. Tr. 51, 53 (Parl. (Ire.) 1641)

(argument).

The Star Chamber became a cautionary tale of the

danger that exists when penological interests are

warped and corrupted by financial self-interest: “[T]he

strong interest of the court in these fines … had a tendency to aggravate the punishment[.]” 2 Henry

Hallam, The Constitutional History of England From

the Accession of Henry VII to the Death of George II 49

(2d ed., London, John Murray 1829). As Hallam put it,

“those who inflicted the punishment reaped the gain,

and sat, like famished birds of prey, with keen eyes

and bended talons, eager to supply for a moment, by

some wretch’s ruin, the craving emptiness of the exchequer”—“regardless of the provision of the Great

Charter, that no man shall be amerced even to the full

extent of his means[.]” Id. at 47.

12 Lit. “mine” and “yours.”

In July 1641, the Star Chamber’s abuses “brought

that institution to an end at the hands of the Long Parliament.” Jones v. SEC, 298 U.S. 1, 28 (1936); see also

Timbs, 586 U.S. at 152 (citing The Grand Remonstrance ¶¶ 17, 34 (1641), in The Constitutional Documents of the Puritan Revolution 1625–1660, 210, 212

(S. Gardiner ed., 3d ed. rev. 1906)); John D. Bessler,

Lost and Found: The Forgotten Origins of the “Cruel

and Unusual Punishments” Prohibition, 14 Brit. J.

Am. Legal Stud. 213, 354, 369 (2025) (discussing The

Grand Remonstrance (1641) and an Ulster Remonstrance (1642) setting forth grievances against “heavy

fines, mulcts, and censures of pillory, stigmatizings,

and other like cruel and unusual punishments”) [hereinafter Bessler, Lost and Found]. But the Star Chamber’s final years would live on in the legal and popular

imagination as a uniquely unconstitutional moment—

a paradigm example of abusive practices.

The Bill of Rights of 1689

The right to freedom from excessive fines was again

tested in the years leading up to the Glorious Revolution, when further abuses in the assessment of fines

took place. See Schwoerer, Declaration 91. In the decades following the Star Chamber’s abolition, some

common law courts recognized the applicability of

Magna Carta’s amercement provisions to fines imposed by courts. See, e.g., Townsend v. Hughes, 2 Mod.

150, 86 Eng. Rep. 994 (C.P. 1677) (North, C.J.) (“In

cases of fines for criminal matters, a man is to be fined

by Magna Charta with a salvo contenemento suo; and

no fine is to be imposed greater than he is able to

pay[.]”).

But other judges—including the infamous George

Jeffreys—held “that Magna Carta did not apply to

fines for offenses against the Crown.” Browning-Ferris, 492 U.S. at 290 (O’Connor, J., concurring in part

and dissenting in part). For example, in John Hampden’s Case, 9 How. St. Tr. 1054 (K.B. 1684), Jeffreys

flatly rejected the defendant’s argument that, per

Magna Carta, “there should be a Salvo Contenemento

in all fines.” Id. at 1124. 13 Thus, rather than ask

whether the fine imposed on Hampden—40,000l., on a

“young gentleman” “not in possession of any property,”

“for a trifling misdemeanor”—was excessive, Jeffreys

asked only whether Hampden’s offense fell within a

special category (“offenses against the Crown”) to

which, in his view, Magna Carta’s individualized protection did not extend. 3 John Campbell, Lives of the

Lord Chancellors and Keepers of the Great Seal of England 423 (2d Am. Ed. from the 3d London ed.,

Blanchard & Lea 1851). In doing so, Jeffreys allowed

an exception to swallow the rule—and violated the

principles for which Magna Carta stood. See id.

Decisions such as John Hampden’s Case had disastrous practical consequences because “English courts

during the reigns of Charles II and James II took advantage of their newly acquired power and imposed ruinous fines on wrongdoers and critics of the Crown.”

13 As a purely historical and technical matter, the position Jeffreys advanced in John Hampden’s Case was not wholly unsupportable. Historically, the terms “fines” and “amercements” had

indeed referred to different forms of sanctions. See, e.g., John Fox,

The History of Contempt of Court 118-19 (1927) (discussing this

distinction). But though fines and amercements had distinct historical antecedents, they served fundamentally similar purposes—and, by the seventeenth and eighteenth centuries, the

terms were often used interchangeably in common parlance. See

Browning-Ferris, 492 U.S. at 290-91 (O’Connor, J., concurring in

part and dissenting in part); Calvin R. Massey, The Excessive

Fines Clause and Punitive Damages: Some Lessons from History,

40 Vand. L. Rev. 1233, 1264 (1987); 4 Blackstone, Commentaries

*371-73 (identifying Magna Carta’s amercement provisions as

regulating “[t]he reasonableness of fines in criminal cases”).

Browning-Ferris, 492 U.S. at 290 (O’Connor, J., concurring in part and dissenting in part). By the mid1680s, “the use of fines ‘became even more excessive

and partisan,’ and some opponents of the King were

forced to remain in prison because they could not pay

the huge monetary penalties that had been assessed.”

Id. at 267 (citation omitted).

Parliament understood the problem as a judicial failure to attend to the individual. In 1680, a “Bill for the

relief of the Subject against arbitrary Fines” was introduced in the House of Commons. See 8 Debates of the

House of Commons: From the Year 1667 to the Year

1694 226 (Anchitell Grey ed. 1763). During debate on

the bill, one member observed that “[t]he Fines imposed by Magna Charta, and at Common Law, are

with a salvo contenemento.” Id. at 226. Another member recalled a case in which a man “was fined a thousand Marks, and was not worth a thousand Shillings,”

and suggested that “[w]hen the Judges become as

great Malefactors as other men, there must be some

remedy.” Id. at 227. He continued, “[i]f the Judges had

fined men according to Magna Charta, with salvo contenemento, there had been no need of this Bill.” Id. Another member emphasized the importance of

“know[ing] the ability of the Person” subjected to fines

and observed, “[w]e have had excessive Fines imposed

by the Judges.” Id. at 228.

David Hume, writing in the eighteenth century, described the abusive nature of penalties imposed during

the 1680s. In one case in 1682, “enormous damages to

the amount of 100,000 pounds were decreed.” 8 David

Hume, The History of England from the Invasion of

Julius Caesar to the Revolution in 1688 173 (1782).

This, Hume explained, was unlawful: “By the law of

England, ratified in the great charter, no fines or damages ought to extend to the total ruin of a criminal.” Id.

A tract published in 1689 observed that “severe

fines” had been imposed, and suggested that “the generality of people … did much complain” and some had

“groaned under extravagant Summs, imposed contrary to Magna Charta’s salvo contenimento, i.e., saving to them their livelihoods[.]” Anon., A Letter to a

Gentleman at Brussels, Containing an Account of the

Causes of the Peoples Revolt from the Crown 6-7 (1689).

The “conflict between Parliament and the Crown culminat[ed] in the Glorious Revolution of 1688 and the

English Bill of Rights of 1689.” Powell v. McCormack,

395 U.S. 486, 502 (1969). “After James II fled England … the House of Commons, in an attempt to end

the crisis precipitated by the vacation of the throne,

appointed a committee to draft articles concerning essential laws and liberties that would be presented to

William of Orange.” Browning-Ferris, 492 U.S. at 29091 (O’Connor, J., concurring in part and dissenting in

part).

The Declaration of Rights of 1688 was “[a] distinct

and solemn assertion of the fundamental principles of

the constitution and of the ancient franchises of the

English nation[.]” Thomas Pitt Taswell-Langmead,

English Constitutional History: From the Teutonic

Conquest to the Present Time 501 (10th ed. 1946). Having recited that “excessive Fines have beene imposed,”

the Declaration provided “[t]hat excessive Baile ought

not to be required, nor excessive Fines imposed, nor

cruell and unusuall Punishments inflicted.” Bill of

Rights of 1688. Shortly afterward, Parliament enacted

the Declaration as the Bill of Rights of 1688, further

entrenching a set of “undoubted rights and liberties.”

1 Will. & Mar., 2d Sess., ch. 2, 9 Stat. at Large 67, 69

(1764 ed.). Although the Glorious Revolution represented a period of significant constitutional change,

Parliamentary reformers characterized much of their

work as restoring ancient rights and privileges. See,

e.g., John Phillip Reid, The Ancient Constitution and

the Origins of Anglo-American Liberty 99-103 (2005).

And in a number of respects, “[t]he codified prohibition

in the English Bill of Rights reflected a general understanding of what the English common law prohibited—or at least was thought to already prohibit—

even in the absence of a written constitutional guarantee.” Bessler, Lost and Found 260.

Two leading cases, decided around the time the English Bill of Rights was framed, suggest how that document’s provision that “excessive fines” “ought not to

be” “imposed” was understood at the time of its enactment: the highly publicized trial and punishment of

Anglican cleric and perjurer Titus Oates, 14 and the

House of Lords review of fines imposed on Lord Devonshire. See, e.g., Harmelin v. Michigan, 501 U.S. 957,

969-70 (1991) (plurality) (discussing Oates); John

Stinneford, Rethinking Proportionality under the

Cruel and Unusual Punishments Clause, 97 Va. L.

Rev. 899, 932-38 (2011); Weems v. United States, 217

U.S. 349, 375-76 (1910) (discussing Devonshire).

First, in 1685, Judge Jeffreys and his colleagues on

the King’s Bench had sentenced Oates to a fine of 2,000

marks, life imprisonment, whippings, pillorying, and

defrockment. Id. at 933 (quoting Second Trial of Titus

Oates, 10 How. St. Tr. 1227, 1315-17 (K.B. 1685)).

“[R]epresentatives from the House of Commons asserted that the House had Oates’s case in mind when

it drafted the Bill of Rights[.]” Id. at 933 (citing 10 H.C.

Jour. 247 (1689)). In 1689, Oates challenged his punishments as cruel and illegal, and his fine as excessive.

14 See John H. Langbein, The Origins of Adversary Criminal

Trial 69-73 (2003) (discussing Oates’ perjury and the notorious

“Popish Plot”) [hereinafter Langbein, Origins].

Id. A writ of error to the House of Lords characterized

the excessiveness of the fine as:

4. Exception. Fined 1,000 marks in each judgment, and committed in execution for the fines

aforesaid; which fines are excessive, twice as

much as the Defendant was worth, and therefore

against Magna Charta, by which all fines ought to

be with a salvo contenimento.

Petition of Titus Oates, Rex v. Oates, reprinted in 1

The Manuscripts of the House of Lords, 1689-1690 81

(1889 ed.). 15

Oates’ petition was rejected by the House of Lords by

a vote of 35 to 22, id. at 80, but several members dissented on the ground that the sentence was “contrary

to the declaration … that excessive bail ought not to be

required, nor excessive fines imposed, nor cruel nor

unusual punishments inflicted.” 10 How. St. Tr. at

1325. The House of Commons aligned itself with the

dissenting Lords: “On the 2d of July, A bill was

brought into the House of Commons to reverse the two

judgments against Oates, it was passed and carried up

to the Lords on the 6th[.]” Id. at 1329. Oates was pardoned and released from prison. Langbein, Origins 72.

The second late seventeenth century decision—The

Case of William Earl of Devonshire, 11 How. St. Tr.

1353 (Parl. 1689)—further clarifies the factors that

could make a fine excessive. See Weems, 217 U.S. at

375-76. The petitioner, Lord Devonshire, “was fined

£30,000 for an assault and battery[.]” Id. at 376. “[T]he

House of Lords, in reviewing the case, took the opinion

of the law Lords, and decided that the fine ‘was exces-

15 “A mark was equivalent to two-thirds of a pound.” Bessler,

Lost and Found 252 n.146 (citation omitted).

sive and exorbitant, against Magna Charta, the common right of the subject, and the law of the land.’” Id.

(citation omitted). The case was decided just months

after the English Bill of Rights had been enacted.

In Bajakajian, this Court noted that the unlawful

nature of the fines imposed in cases such as Devonshire was “described contemporaneously only in the

most general terms.” 524 U.S. at 335. But while the

opinion in Devonshire might have been general, the argument that carried the House of Lords was not. Devonshire’s advocate, Henry Booth (Lord Delamere), 16

spoke directly to the grounds on which the fine was

perceived to be “excessive and exorbitant, against

Magna Charta, the common right of the subject, and

the law of the land.” See The Works of the Right Honourable Henry late L. Delamer[e], and Earl of Warrington 563-82 (1694). 17

In making the case for “[t]he Excessiveness of the

Fine,” id. at 565, Delamere began by invoking the nation’s experience under the Star Chamber: “The Court

of Starchamber was taken away, because of the unmeasurable Fines which it impos’d, which alone was a

plain and direct prohibition for any other court to do

the like, for otherwise the Mischief remain’d[.]” Id. at

574. He observed that “those great Fines, imposed in

16 Delamere served alongside Devonshire on the “rights com-

mittee” in the House of Lords, which played an important role in

drafting and revising the English Declaration of Rights.

Schwoerer, Declaration 237-41, 306-07. John Hampden—whose

argument that Magna Carta applied to fines had been rejected by

Judge Jeffreys in 1684—served on a similar committee in the

House of Commons. Id. at 91.

17 See also 11 How. St. Tr. at 1353-66 (reproducing Delamere’s

argument to the Lords in this “remarkable Case”).

that Court, were inconsistent with the Law of England, which is a Law of Mercy, and concludes every

Fine which is left at discretion, with Salvo Contenimento.” Id. “If the Fines imposed in the Starchamber

were an intolerable Burden to the Subject, and the

means to introduce an Arbitrary Power and Government, as [the statute abolishing the Star Chamber] recites, the like proceeding in the King’s Bench can be no

less grievous, and must produce the same Evil.” Id. at

574-75. “Laws that are grounded upon the ancient

Principles of the Government cannot cease, because the

Reason of them will ever continue[.]” Id. at 575.

Magna Carta’s provisions, Delamere explained,

served a critical purpose: “[T]he Judges cannot impose

a greater Fine than what the Party may be capable of

paying immediately into Court: but if the Judges may

commit the Party to Prison till the Fine be paid, and

withal set so great a Fine as is impossible for the Party

to pay into Court, then it will depend upon the Judges

pleasure, whether he shall ever have his Liberty, because the Fine may be such as he shall never be able

to pay: And thus every Man’s Liberty is wrested out of

the dispose of the Law, and is stuck under the Girdle

of the Judges.” Id. at 576-77.

Delamere also alluded to the broader societal and

dignitary interests that were at play: “Because the Nation has an Interest in the Person of every particular

Subject, for every Man, either one way or other, is useful and serviceable in his Generation, but by these intolerable Fines the Nation will frequently lose a Member, and the Person that is Fin’d shall not only be disabled from doing his Part in the Common-wealth, but

also he and his Family will become a Burden to the

Land, especially if he be a man of no great Estate, for

the excessive Charge that attends a Confinement will

quickly consume all that he has, and then he and his

Family must live upon Charity.[ 18] And thus the poor

man will be doubly punish’d, first, to wear out his days

in perpetual Imprisonment; and secondly, to see Himself and Family brought to a Morsel of Bread.” Id. at

577. 19

The Lords agreed with Delamere, and held the

£30,000 fine to be “excessive and exorbitant, against

Magna Charta, the common right of the subject, and

the law of the land[.]” 11 How. St. Tr. at 1372. Together, these two famous cases shed considerable light

on the ancient principles reaffirmed in the English Bill

of Rights’ proscription of “excessive fines.”

C. Post-1689 Theory and Practice Reaffirmed These Proportionality Principles

“Case law invoking the English Bill of Rights in the

years following its adoption recognized the premise

that the ‘excessiveness’ of a fine could be determined

with reference to an offender’s individual circumstances.” Nicholas M. McLean, The Law of Minimum

Entitlements, 59 U. Mich. J.L. Reform (forthcoming

2026). For example, Matthew Newman—a resident of

18 Cf. Cesare Beccaria, On Crimes and Punishments and Other

Writings 53 (Richard Bellamy ed., Richard Davies trans., 1995)

(1764) (observing that “fines ... take bread from the innocent

when taking it from the villains”); Walter J. Baldwin, Punishment

Without Crime; or Imprisonment for Debt 44 (1813) (observing

that “it is the spirit of the Constitution not to punish ‘fault,’ or

even ‘crime’ itself, but ‘according to its degree, or in proportion to

its heinousness:’ and therefore, as neither debt nor inability to

pay debt is in any ‘degree heinous,’ it is, we conceive, in direct

opposition to this spirit to inflict”) (emphasis omitted).

19 Delamere also argued that the amount of the fine was greater

than other fines previously imposed, and that the proceedings

“will make ... the government look very rigid and severe,” which

“will set [the people] upon their guard.” Id. at 578.

colonial Bermuda—was convicted in 1707 of “repeatedly threatening and abusing in a very gross manner

the Governor, Judges and Justices of the island.”

2 Acts of the Privy Council of England 600, 606 (W. L.

Grant et al., eds. 1910). The trial court fined Newman,

and Newman appealed to the Privy Council on excessiveness grounds. 20 The Privy Council held that “the

fine imposed” on Newman “was … excessive in view of

his mean circumstances and contrary to the Bill of

Rights.” 21

Influential treatises reflect the same principles.

Take the description of the rules governing monetary

punishments set forth in the noted jurist Sollom Emlyn’s 22 preface to the 1730 edition of State Trials. See

Sollom Emlyn, Preface, in A Complete Collection of

State Trials and Proceedings for High-Treason, and

Other Crimes and Misdemeanors (2d ed., London, J.

Walthoe Sen. et al. 1730). Emlyn writes that the judge,

“though he be intrusted with so great power, yet he is

20 The Privy Council “heard appeals from colonial cases,” and

“requir[ed] that colonial laws not be ‘repugnant’ to those of England.” Christian R. Burset, Why Didn’t the Common Law Follow

the Flag?, 105 Va. L. Rev. 483, 495 (2019). “In doing so, it laid the

framework for an often contentious debate about the precise scope

of English liberties abroad—but one that assumed a jurisprudential unity between England and its colonies.” Id.

21 2 Acts of the Privy Council of England 606 (W. L. Grant et

al., eds. 1910). Newman had already “lain in prison for two years”

before the appeal was heard, and the Privy Council regarded this

as “sufficient punishment.” Id. The bail the trial court had required was also deemed excessive. Id.

22 “Sollom Emlyn (1697-1754) was an Irish legal writer who became a member of Lincoln’s Inn, was the compiler of the six-volume second edition of State Trials, and contributed ‘a lengthy

preface critically surveying the condition of English law at the

time.’” Bessler, Lost and Found 288 n.283.

not at liberty to do as he lists, and inflict what arbitrary Punishments he pleases; due regard is to be had

to the Quality and Degree, to the Estate and Circumstances of the Offender, and to the greatness or smallness of the Offence[.]” Id. at x.

This was important because “that Fine, which would

be a mere trifle to one man, may be the utter ruin and

undoing of another[.]” Id. Moreover, failure to abide by

these precepts would undermine the proportionality

principle as well: “If no Measures were to be observed

in these discretionary Punishments, a Man who is

guilty of a Misdemeanor might be in a worse Condition

than if he had committed a capital Crime” because “he

might be exposed to an indefinite and perpetual Imprisonment, a Punishment not at all favour’d by Law,

as being worse than [d]eath itself[.]” Id.

Blackstone’s observations are also instructive.

Blackstone notes that “[t]he reasonableness of fines in

criminal cases has also been usually regulated by the

determination of magna carta concerning amercements for misbehaviour in matters of civil right.”

4 Blackstone, Commentaries *372. Then Blackstone

describes that the law requires “that no man shall

have a larger amercement imposed upon him, than his

circumstances or personal estate will bear: saving to

the landholder his contenement, or land; to the trader

his merchandize; and to the countryman his wainage,

or team and instruments of husbandry.” Id. Blackstone elaborates:

[T]he ancient practice was to enquire by a

jury, when a fine was imposed upon any man,

quantum inde regi dare valeat per annum,

salva sustentatione sua, et uxoris, et liberorum

suorum.[ 23] And, since the disuse of such inquest, it is never usual to assess a larger fine

than a man is able to pay, without touching

the implements of his livelyhood; but to inflict

corporal punishment, or a stated imprisonment, which is better than an excessive fine,

for that amounts to imprisonment for life.

Id. at *373. Blackstone recognized that, from case to

case and offender to offender, the degree of punishment “must frequently vary, from the aggravations or

otherwise of the offence, the quality and condition of

the parties, and from innumerable other circumstances.” Id. at *371. As for monetary punishment, he

noted that “[t]he quantum, in particular, of pecuniary

fines neither can, nor ought to be, ascertained by any

invariable law” because “[t]he value of money itself

changes from a thousand causes; and, at all events,

what is ruin to one man’s fortune, may be matter of

indifference to another’s.” Id.

In the 1770s, William Eden (Baron Auckland) discussed these principles in his treatise, Principles of Penal Law. Eden writes that “[i]t is the usage of the

courts, superinduced on the clause of Magna Charta

relative to civil amercements, never to extend the fine

of any criminal so far, as to take from him the implements, and means of his profession, and livelihood; or

to deprive his family of their necessary support.” William Eden (Baron Auckland), Principles of Penal Law

72-73 (3d ed. 1775).

Joseph Chitty’s early nineteenth century criminal

treatise also presents an extensive discussion of this

rule. “Before the revolution,” Chitty observes, “the

23 Lit. “How much from thence he be able to pay the King annually, having besides a maintenance for himself, his wife and

children.” Thomas Tayler, The Law Glossary 347 (1866 ed.).

court of Star-chamber levied the most exorbitant fines

upon the subject in defiance of every principle of law,

to enrich the treasuries of the sovereign.” 1 Joseph

Chitty, A Practical Treatise on the Criminal Law 489

(Philadelphia, E. Earle 1819). “[B]y the bill of rights,”

however, “it was specifically enacted, that excessive

fines be not imposed”; “since this provision, it is never

usual to assess a larger fine than the delinquent is able

to pay without touching the means of his subsistence[.]” Id. at 490.

In short, substantial evidence suggests that Magna

Carta, the common law, and the English Bill of Rights

were understood to require that a just and lawful monetary penalty be proportionate to the offense not only

in the abstract, but also in the sense that it not destroy

a minimum core level of economic security and subsistence—determined with reference to personal circumstances and ability to pay of the individual.

II. EARLY AMERICAN SOURCES FURTHER

SUPPORT LOOKING TO INDIVIDUAL CIRCUMSTANCES

The fundamental right to freedom from excessive

fines was embraced by the American colonists. The

earliest colonial charters did not merely prohibit “excessive” fines; they reproduced Magna Carta’s salvo

contenemento formula—and the individualized inquiry

embodied in it—nearly word for word.

The colonists “looked upon the English Constitution

as their own,” H.D. Hazeltine, The Influence of Magna

Carta on American Constitutional Development,

17 Colum. L. Rev. 1, 22 (1917), and “English law—as

authority, as legitimizing precedent, as embodied principle, and as the framework of historical understanding—stood side by side with Enlightenment rationalism in the minds of the Revolutionary generation.”

Bernard Bailyn, The Ideological Origins of the American Revolution 31 (1967); see Trump v. Barbara,

146 S. Ct. 2438, 2458 (2026) (recognizing that “the colonists demanded the ‘rights of Englishmen’”); Timbs,

586 U.S. at 164 (Thomas, J., concurring in the judgment) (“As English subjects, the colonists considered

themselves to be vested with the same fundamental

rights as other Englishmen, … including the prohibition on excessive fines.”) (citation and internal quotation marks omitted). Indeed, “Americans were steeped

in the English constitutional writings of Coke and

Blackstone, and justified their break from England on

the ground that the British refused to respect their

longstanding common-law rights.” John F. Stinneford,

Experimental Punishments, 95 Notre Dame L. Rev. 39,

57 (2019).

Even before the English Bill of Rights was adopted,

American colonists had sought to claim for themselves

the right to freedom from unreasonable and oppressive

fines. The Pennsylvania Frame of Government of

1682—one of “the most influential of the Colonial documents protecting individual rights,” 1 Schwartz, Documentary History 130—provided “[t]hat all fines shall

be moderate, and saving men’s contenements, merchandize, or wainage.” Pennsylvania Frame of Government, Laws Agreed Upon in England, art. XVIII

(1682), reprinted in 1 Schwartz, Documentary History

132, 141. Likewise, the New York Charter of Liberties

and Privileges of 1683 provided “[t]hat A freeman

Shall not be amerced for a small fault, but after the

manner of his fault and for a great fault after the

Greatnesse thereof Saveing to him his freehold, And a

husbandman saveing to him his Wainage and a merchant likewise saveing to him his merchandize[.]” N.Y.

Charter of Liberties and Privileges (1683), reprinted in

1 Schwartz, Documentary History 163, 165.

A few years later, during Maryland’s Protestant

Revolution of 1689, one stated reason for the rebellion

was “[t]he Imposseinge Exessive fines Contrary to

magna Charta without any respect had to the salvo

Contenemento suo sibi therein Injoyned.” ‘Mariland’s

Grevances Wiy The Have Taken Op Arms’, reprinted in

8 J. S. Hist. 392, 401 (1942). See also David S. Lovejoy,

The Glorious Revolution in America 288–91 (1987)

(discussing the rebellion and its causes).

In 1721, Jeremiah Dummer’s influential work A Defence of the New-England Charters similarly declared

that “[t]he Subjects Abroad claim the Privilege of

Magna Charta, which says that no Man shall be fin’d

above the Nature of his Offense, and whatever his Miscarriage be, a Salvo Contenemento suo is to be observ’d

by the Judge.” Jeremiah Dummer, A Defence of the

New-England Charters 16-17 (1721).

By the Founding, documents such as Magna Carta,

the Habeas Corpus Act, and the English Bill of Rights

had long represented “a towering common law lighthouse of liberty—a beacon by which framing lawyers

in America consciously steered their course.” Akhil

Reed Amar, Sixth Amendment First Principles,

84 Geo. L.J. 641, 663 (1996). Coke’s “Institutes ‘were

read in the American Colonies by virtually every student of the law,” Kerry v. Din, 576 U.S. 86, 91 (2015)

(plurality opinion) (citation omitted), and Blackstone

was “the preeminent authority on English law for the

founding generation,” District of Columbia v. Heller,

554 U.S. 570, 593-94 (2008) (citation omitted). The

Founders were also “aware and took account of the

abuses that led to the 1689 Bill of Rights.” BrowningFerris, 492 U.S. at 267.

The landmark Virginia Declaration of Rights of June

1776 echoed the English Bill of Rights, providing

“[t]hat excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.” Va. Decl. of Rts., § 9. Section 9 was

one of several provisions “borrowed from England,”

Edmund Randolph, Essay on the Revolutionary History of Virginia (c. 1809–1813), reprinted in 1

Schwartz, Documentary History 246, 248, in a document that in many respects “was a restatement of English principles—the principles of Magna Charta, the

Petition of Right[], the Commonwealth Parliament,

and the Revolution of 1688.” Allan Nevins, The American States During and After the Revolution, 17751789 146 (1927). 24

Virginia’s Declaration, in turn, influenced the declarations of rights of other states and, ultimately, the

Bill of Rights itself. By 1787, “[e]ight states … had

state constitutions prohibiting the imposition of excessive fines” 25 and, in 1789, four states—Virginia, Pennsylvania, New York, and North Carolina—urged that

the Nation’s charter be amended to include such a provision. 2 Schwartz, Documentary History 1167. The

amendments proposed by the Virginia Ratifying Convention were particularly influential. Id. at 762-65.

In light of this history, early interpretations of the

Virginia Declaration of Rights are particularly instructive. For example, in Jones v. Commonwealth, 5 Va. (1

Call) 555 (1799), the Supreme Court of Appeals of Virginia considered whether a fine could be assessed

24 Cf. Solem, 463 U.S. at 286 (“use of the language of the Eng-

lish Bill of Rights” deemed “convincing proof” of intent “to provide

at least the same protection”).

25 Steven G. Calabresi, Sarah E. Agudo & Kathryn L. Dore,

State Bills of Rights in 1787 and 1791: What Individual Rights

Are Really Deeply Rooted in American History and Tradition?, 85

S. Cal. L. Rev. 1451, 1517 (2012).

jointly. At the time, the imposition of fines in Virginia

was governed both by the excessive fines clause of the

Virginia Declaration and by a 1786 statute that implemented the constitutional provision by requiring that

“in every … information or indictment, the amercement ought to be according to the degree of the fault,

and saving to the offender his contenement[.]” 1786

Va. Laws ch. 64, Gen. Assemb, at 42. One member of

the Jones court, Judge Spencer Roane, described the

1786 statute as “founded on the spirit” of the Declaration’s excessive fines provision. Jones, 5 Va. at 556–57.

In deciding that a joint fine could not lawfully be imposed, Judge Roane referred to William Hawkins’

Treatise of the Pleas of the Crown, which in turn relied

upon Godfrey’s Case as “establish[ing] the doctrine …

bottomed upon an article of magna charta, that fines

be imposed secundum quantitatem delicti salvo contenemento.” Id. 26

Judge Roane reasoned that a prohibition on joint

fines was “fortified not only by the principles of natural

justice, which forbid that one man should be punished

for the fault of another; but also, by the clause of the

bill of rights prohibiting excessive fines and the act of

1786 founded on the spirit of it and providing, that the

fine should be according to the degree of the fault and

the estate of the offender.” Id. at 556-57; see also id.

(such a result would be “unjust and contrary to the

spirit of the constitution”). A second member of the

three-judge panel concurred that the joint fine was unlawful, reasoning that “it is clear that the makers of

the constitution, as well as the Legislature contemplated, that no addition, under any pretext whatever

was to be imposed, upon the offender, beyond the real

26 Lit. “according to the quantity of the offense, saving contenement.”

measure of his own offence.” See id. at 557-58 (Carrington, J.) (emphasis added).

Other early state decisions also looked to traditional

common law principles. See, e.g., Commonwealth v.

Morrison, 9 Ky. (2 A.K. Marsh.) 75, 99 (1819) (fine

“should bear a just proportion to the offense committed” and to “the situation, circumstances and character of the offender”).

So did leading American commentators. The 1829

edition of William Rawle’s treatise characterized the

Eighth Amendment as “protect[ing]” “against all unnecessary severity in the prosecution of justice,” and

looked to the history of the Stuart period for guidance

as to the meaning of the Excessive Bail Clause. William Rawle, A View of the Constitution of the United

States 130 (2d ed. 1829). 27

Story’s Commentaries similarly drew connections

between the Eighth Amendment and the English Bill

of Rights, explaining that the Eighth Amendment

served “to warn … against” a repeat of the events that

had transpired during “the arbitrary reigns of some of

the Stuarts”—when, among other things, “[e]normous

fines and amercements were … sometimes imposed[.]”

Joseph Story, Commentaries on the Constitution of the

United States 710-11 (1833 ed.). Benjamin Oliver’s

1832 treatise suggests that imposing “a ruinous fine

upon an inconsiderable offence, or otherwise wholly

disproportioned to the magnitude of it … would be

inconsistent with the spirit” of the Eighth

27 See generally John D. Bessler, The Baron and the Marquis:

Liberty, Tyranny, and the Enlightenment Maxim That Can

Remake American Criminal Justice (2019) (recounting the long

history of the principle of parsimony—the precept that punishment should be no more severe than necessary—in Anglo-American law).

Amendment. Benjamin L. Oliver, The Rights of an

American Citizen 185 (1832). Oliver further suggests

that “[a] man’s farm or stock in trade, ought never to

be made a sacrifice, to the ruin of himself and the

distress of his family, but, if necessary to make an

example, he should rather be imprisoned for a longer

period, and a more moderate fine be imposed.” Id.

Thomas Cooley’s 1868 treatise Constitutional Limitations—which was “influential” 28 and “massively popular” 29 in its time—observes that although “the question what fine shall be imposed is one addressed to the

discretion of the court,” that discretion is “to be judicially exercised, and it would be error in law to inflict

a punishment clearly excessive.” Cooley, Constitutional Limitations 328. Cooley elaborates: “A fine

should have some reference to the party’s ability to pay

it.” Id. Cooley bases this conclusion on Chapter 14 of

Magna Carta, the “merciful spirit” of which “addresses

itself to the criminal courts of the American States

through the [excessive fines] provisions of their constitutions.” Id. at 328-29. In this regard, Cooley also refers approvingly to the rule that “[t]he common law

can never require a fine to the extent of an offender’s

goods and chattels[.]” Id. at 329 (quoting State v.

Danforth, 3 Conn. 112, 115, 117-18 (1819)).

The historical record thus suggests that the ancient

proportionality principles the Founders inherited—including the inherently individualized tenet of salvo

contenemento—informed historical understandings of

28 McDonald v. City of Chicago, 561 U.S. 742, 821 (2010)

(Thomas, J., concurring in part and concurring in the judgment).

29 Heller, 554 U.S. at 616.

the U.S. Constitution’s decree that “excessive fines”

not be “imposed.”

CONCLUSION

Amici respectfully ask that the Court consider the

foregoing historical principles in resolving the question presented.

Respectfully submitted,

JILLIAN S. STONECIPHER*

VICTOR T. HILTNER

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

jstonecipher@sidley.com

Counsel for Amici Curiae

September 15, 2026

* Counsel of Record

APPENDIX

APPENDIX TABLE OF CONTENTS

APPENDIX A: List of Amici .................................

Page

APPENDIX A: List of Amici

John D. Bessler is a Professor of Law at the University of Baltimore School of Law, an Adjunct Professor

at the Georgetown University Law Center, and is Of

Counsel at Stinson LLP. His scholarship focuses on

capital punishment, legal history, and international

human rights law. He has written numerous books

about capital punishment and American legal history,

serving as an editor for former Justice Stephen

Breyer’s book, Against the Death Penalty (2016), and

authoring others, such as Death in the Dark: Midnight

Executions in America (1997); Cruel and Unusual: The

American Death Penalty and The Founders’ Eighth

Amendment (2012); The Death Penalty as Torture:

From the Dark Ages to Abolition (2017); The Baron and

the Marquis: Liberty, Tyranny, and the Enlightenment

Maxim That Can Remake American Criminal Justice

(2019); Private Prosecution in America: Its Origins,

History, and Unconstitutionality in the Twenty-First

Century (2022); and The Death Penalty’s Denial of

Fundamental Human Rights: International Law,

State Practice, and the Emerging Abolitionist Norm

(2023). His books have received various honors, including the Scribes Book Award for The Birth of American

Law: An Italian Philosopher and the American Revolution (2014). He also has taught at other law schools,

including the University of Minnesota Law School,

where he is currently a visiting scholar at its Human

Rights Center.

Nicholas M. McLean is an Assistant Professor of

Law at the William S. Richardson School of Law at the

University of Hawaiʻi at Mānoa. His work explores

contemporary issues in constitutional and public law,

with particular emphasis on state constitutionalism,

the intersection of poverty and constitutional doctrine,

and the constitutional regulation of punishment and

economic sanctions. His scholarship has appeared or is

forthcoming in the University of Michigan Journal of

Law Reform, Yale Law Journal Forum, Michigan Law

Review Online, the University of Hawaiʻi Law Review,

and the Hastings Constitutional Law Quarterly,

among others.

John F. Stinneford is University Term Professor at

the University of Florida Levin College of Law. His

published works include: The Original Meaning of

‘Cruel’, 105 Geo. L.J. 441 (2017); Rethinking Proportionality under the Cruel and Unusual Punishments

Clause, 97 Va. L. Rev. 899 (2011); and The Original

Meaning of ‘Unusual’: The Eighth Amendment as a

Bar to Cruel Innovation, 102 Nw. U. L. Rev. 1739

(2008).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.