# Pacific Mutual Life Insurance Company v. Haslip/Concurrence Scalia

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Scalia Kennedy
* Dissenting Opinion O'connor
Justice SCALIA, concurring in the judgment.
In Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989), we rejected the argument that the Eighth Amendment limits punitive damages awards, but left for "another day" the question whether "undue jury discretion to award punitive damages" violates the Due Process Clause of the Fourteenth Amendment, id., at 277, 109 S.Ct., at 2921. That day has come, the due process point has been thoroughly briefed and argued, but the Court chooses to decide only that the jury discretion in the present case was not undue. It says that Alabama's particular procedures (at least as applied here) are not so "unreasonable" as to "cross the line into the area of constitutional impropriety," ante, this page. This jury-like verdict provides no guidance as to whether any other procedures are sufficiently "reasonable," and thus perpetuates the uncertainty that our grant of certiorari in this case was intended to resolve. Since 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 since in my view a process that accords with such a tradition and does not violate the Bill of Rights necessarily constitutes "due" process; I would approve the procedure challenged here without further inquiry into its "fairness" or "reasonableness." I therefore concur only in the judgment of the Court.
* As the Court notes, punitive or "exemplary" damages have long been a part of Anglo-American law. They have always been controversial. As recently as the mid-19th century, treatise writers sparred over whether they even existed. One respected commentator, Professor Simon Greenleaf, argued that no doctrine of authentically "punitive" damages could be found in the cases; he attempted to explain judgments that ostensibly included punitive damages as in reality no more than full compensation. 2 Law of Evidence 235, n. 2 (13th ed. 1876). This view was not widely shared. In his influential treatise on the law of damages, Theodore Sedgwick stated that "the rule" with respect to the "salutary doctrine" of exemplary damages is that "where gross fraud, malice, or oppression appears, the jury are not bound to adhere to the strict line of compensation, but may, by a severer verdict, at once impose a punishment on the defendant and hold up an example to the community." Measure of Damages 522 (4th ed. 1868). The doctrine, Sedgwick noted, "seems settled in England, and in the general jurisprudence of this country," id., at 35. See also G. Field, Law of Damages 66 (1876) ("[The] doctrine [of punitive damages] seems to be sustained by at least a great preponderance of authorities, both in England and this country"); J. Sutherland, Law of Damages 721-722, 726-727, n. 1 (1882) ("The doctrine that [punitive] damages may be allowed for the purpose of example and punishment, in addition to compensation, in certain cases, is held in nearly all the states of the Union and in England." "Since the time of the controversy between Professor Greenleaf and Mr. Sedgwick (1847) on this subject, a large majority of the appellate courts in this country have followed the doctrine advocated by Mr. Sedgwick . . ."). In Day v. Woodworth, 13 How. 363, 371, 14 L.Ed. 181 (1852), this Court observed:
"It is a well-established principle of the common law, that in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant, having in view the enormity of his offence rather than the measure of compensation to the plaintiff. We are aware that the propriety of this doctrine has been questioned by some writers; but if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument."
Even fierce opponents of the doctrine acknowledged that it was a firmly established feature of American law. Justice Foster of the New Hampshire Supreme Court, in a lengthy decision disallowing punitive damages, called them "a perversion of language and ideas so ancient and so common as seldom to attract attention," Fay v. Parker, 53 N.H. 342, 343 (1873). The opinion concluded, with more passion than even petitioners in the present case could muster:
"Undoubtedly this pernicious doctrine has become so fixed in the law . . . that it may be difficult to get rid of it. But it is the business of courts to deal with difficulties; and this heresy should be taken in hand without favor, firmly and fearlessly.
". . . [N]ot reluctantly should we apply the knife to this deformity, concerning which every true member of the sound and healthy body of the law may well exclaim-'I have no need of thee.' " Id., at 397 (internal quotations omitted).
In 1868, therefore, when the Fourteenth Amendment was adopted, punitive damages were undoubtedly an established part of the American common law of torts. It is just as clear that no particular procedures were deemed necessary to circumscribe a jury's discretion regarding the award of such damages, or their amount. As this Court noted in Barry v. Edmunds, 116 U.S. 550, 565, 6 S.Ct. 501, 509, 29 L.Ed. 729 (1886), "nothing is better settled than that, in cases such as the present, and other actions for torts where no precise rule of law fixes the recoverable damages, it is the peculiar function of the jury to determine the amount by their verdict." See also Missouri Pacific R. Co. v. Humes, 115 U.S. 512, 521, 6 S.Ct. 110, 113, 29 L.Ed. 463 (1885) ("The discretion of the jury in such cases is not controlled by any very definite rules"). Commentators confirmed that the imposition of punitive damages was not thought to require special procedural safeguards, other than-at most-some review by the trial court. "[I]n cases proper for exemplary damages, it would seem impracticable to set any bounds to the discretion of the jury, though in cases where the wrong done, though with malicious intent, is greatly disproportioned to the amount of the verdict, the court may exercise the power it always possesses to grant a new trial for excessive damages." Sedgwick, supra, at 537-538, n. 1. See also Field, supra, at 65 ("[T]he amount of damages by way of punishment or example, are necessarily largely within the discretion of the jury; the only check . . . being the power of the court to set aside the verdict where it is manifest that the jury were unduly influenced by passion, prejudice, partiality, or corruption, or where it clearly evinces a mistake of the law or the facts of the case"); Sutherland, supra, at 742 ("Whether [punitive damages] shall be allowed, and their amount, are left to the discretion of the jury, but subject to the power of the court to set aside the verdict if it is so excessive that the court may infer that the jury have been influenced by passion or prejudice" (footnote omitted)).
Although both the majority and the dissenting opinions today concede that the common-law system for awarding punitive damages is firmly rooted in our history, both reject the proposition that this is dispositive for due process purposes. Ante, at 17-18; post, at 60. I disagree. In my view, it is not for the Members of this Court to decide from time to time whether a process approved by the legal traditions of our people is "due" process, nor do I believe such a rootless analysis to be dictated by our precedents.
Determining whether common-law procedures for awarding punitive damages can deny "due process of law" requires some inquiry into the meaning of that majestic phrase. Its first prominent use appears to have been in an English statute of 1354: "[N]o man of what estate or condition that he be, shall be put out of land or tenement, nor taken nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of the law." 28 Edw. III, ch. 3. Although historical evidence suggests that the word "process" in this provision referred to specific writs employed in the English courts (a usage retained in the phrase "service of process"), see Jurow, Untimely Thoughts: A Reconsideration of the Origins of Due Process of Law, 19 Am.J.Legal Hist. 265, 272-275 (1975), Sir Edward Coke had a different view. In the second part of his Institutes, see 2 Institutes 50 (5th ed. 1797), Coke equated the phrase "due process of the law" in the 1354 statute with the phrase "Law of the Land" in Chapter 29 of Magna Charta (Chapter 39 of the original Magna Charta signed by King John at Runnymede in 1215), which provides: "No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land." 9 Hen. III, ch. 29 (1225). In Coke's view, the phrase "due process of law" referred to the customary procedures to which freemen were entitled by "the old law of England," 2 Institutes 50.
The American colonists were intimately familiar with Coke, see R. Mott, Due Process of Law 87-90, 107 (1926); A. Howard, The Road from Runnymede: Magna Charta and Constitutionalism in America 117-125 (1968), and when, in their Constitutions, they widely adopted Magna Charta's "law of the land" guarantee, see, e.g., N.C. Const., Art. XII (1776) ("[N]o freeman ought to be taken, imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the law of the land"); Mass. Const., Art. XII (1780) ("[N]o subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land"), they almost certainly understood it as Coke did. It was thus as a supposed affirmation of Magna Charta according to Coke that the First Congress (without recorded debate on the issue) included in the proposed Fifth Amendment to the Federal Constitution the provision that "[n]o person shall be . . . deprived of life, liberty, or property, without due process of law." Early commentaries confirm this. See, e.g., 2 W. Blackstone, Commentaries 133, nn. 11, 12 (S. Tucker ed. 1803); 2 J. Kent, Commentaries on American Law 10 (1827); 3 J. Story, Commentaries on the Constitution of the United States 661 (1833).
This Court did not engage in any detailed analysis of the Due Process Clause until Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272, 15 L.Ed. 372 (1856). That case involved the validity of a federal statute authorizing the issuance of distress warrants, a mechanism by which the Government collected debts without providing the debtor notice or an opportunity for hearing. The Court noted that the words "due process of law" conveyed "the same meaning as the words 'by the law of the land,' in Magna Charta " (referring to Coke's commentary and early state constitutions), and that they were "a restraint on the legislature as well as on the executive and judicial powers of the government," id., at 276. This brought the Court to the critical question:
"To what principles, then, are we to resort to ascertain whether this process enacted by congress, is due process? To this the answer must be twofold. We must examine the constitution itself, to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country." Id., at 276-277.
Reviewing the history of the distress warrant, the Court concluded that the procedure could not deny due process of law because "there has been no period, since the establishment of the English monarchy, when there has not been, by the law of the land, a summary method for the recovery of debts due to the crown, and especially those due from receivers of the revenues," id., at 277, and these summary procedures had been replicated, with minor modifications, in the laws of the various American colonies and, after independence, the States, id., at 278-280.
Subsequent to the decision in Murray's Lessee, of course, the Fourteenth Amendment was adopted, adding another Due Process Clause to the Constitution. The Court soon reaffirmed the teaching of Murray's Lessee under the new provision:
"A State cannot deprive a person of his property without due process of law; but this does not necessarily imply that all trials in the State courts affecting the property of persons must be by jury. This requirement of the Constitution is met if the trial is had according to the settled course of judicial proceedings. Due process of law is process due according to the law of the land." Walker v. Sauvinet, 92 U.S. 90, 92-93, 23 L.Ed. 678 (1876) (emphasis added; citation omitted).
Not until Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884), however, did the Court significantly elaborate upon the historical test for due process advanced in Murray's Lessee. In that case, a man convicted of murder in California contended that the State had denied him due process of law by omitting grand-jury indictment. Relying upon Murray's Lessee, he argued that because that procedure was firmly rooted in the Anglo-American common-law tradition, it was an indispensable element of due process. The Court disagreed.
"The real syllabus of [the relevant portion of Murray's Lessee ] is, that a process of law, which is not otherwise forbidden, must be taken to be due process of law, if it can show the sanction of settled usage both in England and in this country; but it by no means follows that nothing else can be due process of law. The point in the case cited arose in reference to a summary proceeding, questioned on that account, as not due process of law. The answer was: however exceptional it may be, as tested by definitions and principles of ordinary procedure, nevertheless, this, in substance, has been immemorially the actual law of the land, and, therefore, is due process of law. But to hold that such a characteristic is essential to due process of law, would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and Persians." Hurtado v. California, supra, at 528-529, 4 S.Ct., at 117.
Hurtado, then, clarified the proper role of history in a due process analysis: If the government chooses to follow a historically approved procedure, it necessarily provides due process, but if it chooses to depart from historical practice, it does not necessarily deny due process. The remaining business, of course, was to develop a test for determining when a departure from historical practice denies due process. Hurtado provided scant guidance. It merely suggested that due process could be assessed in such cases by reference to "those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions," 100 U.S., at 535, 4 S.Ct., at 120 (emphasis added).
The concept of "fundamental justice" thus entered the due process lexicon not as a description of what due process entails in general, but as a description of what it entails when traditional procedures are dispensed with. As the Court reiterated in Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908), "consistently with the requirements of due process, no change in ancient procedure can be made which disregards those fundamental principles, to be ascertained from time to time by judicial action, which have relation to process of law and protect the citizen in his private right, and guard him against the arbitrary action of government." Id., at 101, 29 S.Ct., at 20 (emphasis added). See also Maxwell v. Dow, 176 U.S. 581, 602-605, 20 S.Ct. 448, 456-458, 44 L.Ed. 597 (1900) (eight-member jury does not violate due process because it is not "a denial of fundamental rights").
Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837 (1921), provides a classic expression of the Court's "settled usage" doctrine. The Delaware statute challenged in that case provided that a creditor could attach the in-state property of an out-of-state debtor and recover against it without the debtor's being given an opportunity to be heard unless he posted a bond. This procedure could be traced back to 18th-century London, and had been followed in Delaware and other States since colonial days. The Court acknowledged that in general the due process guarantee "includ[es] the right to be heard where liberty or property is at stake in judicial proceedings." Id., at 111, 41 S.Ct., at 438. But, it said, "[a] procedure customarily employed, long before the Revolution, in the commercial metropolis of England, and generally adopted by the States as suited to their circumstances and needs, cannot be deemed inconsistent with due process of law." Ibid.
"The due process clause does not impose upon the States a duty to establish ideal systems for the administration of justice, with every modern improvement and with provision against every possible hardship that may befall. . . .
"However desirable it is that the old forms of procedure be improved with the progress of time, it cannot rightly be said that the Fourteenth Amendment furnishes a universal and self-executing remedy. Its function is negative, not affirmative, and it carries no mandate for particular measures of reform." Id., at 110-112, 41 S.Ct., at 437-438.
See also Corn Exchange Bank v. Coler, 280 U.S. 218, 222-223, 50 S.Ct. 94, 95, 74 L.Ed. 378 (1930).
By the time the Court decided Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934), its understanding of due process had shifted in a subtle but significant way. That case rejected a criminal defendant's claim that he had been denied due process by being prevented from accompanying his jury on a visit to the scene of the crime. Writing for the Court, Justice Cardozo assumed that due process required "fundamental justice," id., at 108, 54 S.Ct., at 333, or "fairness," see id., at 116, 54 S.Ct., at 336, in all cases, and not merely when evaluating nontraditional procedures. The opinion's analysis began from the premise that "Massachusetts is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people to be ranked as fundamental. " Id., at 105, 54 S.Ct., at 332 (emphasis added). Even so, however, only the mode of analysis and not the content of the Due Process Clause had changed, since in assessing whether some principle of "fundamental justice" had been violated, the Court was willing to accord historical practice dispositive weight. Justice Cardozo noted that the practice of showing evidence to the jury outside the presence of the defendant could be traced back to 18th-century England, and had been widely adopted in the States. "The Fourteenth Amendment," he wrote, "has not displaced the procedure of the ages." Id., at 111, 54 S.Ct., at 334.
In the ensuing decades, however, the concept of "fundamental fairness" under the Fourteenth Amendment became increasingly decoupled from the traditional historical approach. The principal mechanism for that development was the incorporation within the Fourteenth Amendment of the Bill of Rights guarantees. Although the Court resisted for some time the idea that "fundamental fairness" necessarily included the protections of the Bill of Rights, see, e.g., Adamson v. California, 332 U.S. 46, 54-58, 67 S.Ct. 1672, 1676-1679, 91 L.Ed. 1903 (1947); Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595 (1942); Palko v. Connecticut, 302 U.S. 319, 323-325, 58 S.Ct. 149, 150-152, 82 L.Ed. 288 (1937), it ultimately incorporated virtually all of them, see, e.g., Malloy v. Hogan, 378 U.S. 1, 4-6, 84 S.Ct. 1489, 1491-1492, 12 L.Ed.2d 653 (1964); Gideon v. Wainwright, 372 U.S. 335, 341-345, 83 S.Ct. 792, 794-797, 9 L.Ed.2d 799 (1963). Of course, most of the procedural protections of the federal Bill of Rights simply codified traditional common-law privileges and had been widely adopted by the States. See Robertson v. Baldwin, 165 U.S. 275, 281, 17 S.Ct. 326, 329, 41 L.Ed. 715 (1897) ("The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors"); T. Cooley, Constitutional Limitations, ch. X (4th ed. 1878). However, in the days when they were deemed to apply only to the Federal Government and not to impose uniformity upon the States, the Court had interpreted several provisions of the Bill of Rights in a way that departed from their strict common-law meaning. Thus, by the mid-20th century there had come to be some considerable divergence between historical practice followed by the States and the guarantees of the Bill of Rights. Gideon, supra, established that no matter how strong its historical pedigree, a procedure prohibited by the Sixth Amendment (failure to appoint counsel in certain criminal cases) violates "fundamental fairness" and must be abandoned by the States. Id., 372 U.S., at 342-345, 83 S.Ct., at 795-797.
To say that unbroken historical usage cannot save a procedure that violates one of the explicit procedural guarantees of the Bill of Rights (applicable through the Fourteenth Amendment) is not necessarily to say that such usage cannot demonstrate the procedure's compliance with the more general guarantee of "due process." In principle, what is important enough to have been included within the Bill of Rights has good claim to being an element of "fundamental fairness," whatever history might say; and as a practical matter, the invalidation of traditional state practices achievable through the Bill of Rights is at least limited to enumerated subjects. But disregard of "the procedure of the ages" for incorporation purposes has led to its disregard more generally. There is irony in this, since some of those who most ardently supported the incorporation doctrine did so in the belief that it was a means of avoiding, rather than producing, a subjective due-process jurisprudence. See, for example, the dissent of Justice Black, author of Gideon, from the Court's refusal to replace "fundamental fairness" with the Bill of Rights as the sole test of due process:
"[T]he 'natural law' formula which the Court uses to reach its conclusion in this case should be abandoned as an incongruous excrescence on our Constitution. I believe that formula to be itself a violation of our Constitution, in that it subtly conveys to courts, at the expense of legislatures, ultimate power over public policies in fields where no specific provision of the Constitution limits legislative power." Adamson, supra, 332 U.S., at 75, 67 S.Ct., at 1688 (Black, J., dissenting).
In any case, our due process opinions in recent decades have indiscriminately applied balancing analysis to determine "fundamental fairness," without regard to whether the procedure under challenge was (1) a traditional one and, if so, (2) prohibited by the Bill of Rights. See, e.g., Ake v. Oklahoma, 470 U.S. 68, 76-87, 105 S.Ct. 1087, 1092-1098, 84 L.Ed.2d 53 (1985); Lassiter v. Department of Social Services of Durham Cty., 452 U.S. 18, 24-25, 101 S.Ct. 2153, 2158-2159, 68 L.Ed.2d 640 (1981); Mathews v. Eldridge, 424 U.S. 319, 332-335, 96 S.Ct. 893, 901-903, 47 L.Ed.2d 18 (1976). Even so, however, very few cases have used the Due Process Clause, without the benefit of an accompanying Bill of Rights guarantee, to strike down a procedure concededly approved by traditional and continuing American practice. Most notably, in Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 340, 89 S.Ct. 1820, 1822, 23 L.Ed.2d 349 (1969), over the strenuous dissent of Justice Black, the Court declared unconstitutional the garnishment of wages, saying that "[t]he fact that a procedure would pass muster under a feudal regime does not mean it gives necessary protection to all property in its modern forms." And in Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), the Court invalidated general quasi in rem jurisdiction, saying that " 'traditional notions of fair play and substantial justice' can be as readily offended by the perpetuation of ancient forms that are no longer justified as by the adoption of new procedures that are inconsistent with the basic values of our constitutional heritage," id., at 212, 97 S.Ct., at 2584. Such cases, at least in their broad pronouncements if not with respect to the particular provisions at issue, were in my view wrongly decided.
I might, for reasons of stare decisis, adhere to the principle that these cases announce, except for the fact that our later cases give it nothing but lipservice, and by their holdings reaffirm the view that traditional practice (unless contrary to the Bill of Rights) is conclusive of "fundamental fairness." As I wrote last Term in Burnham v. Superior Court of Cal., County of Marin, 495 U.S. 604, 623-625, 110 S.Ct. 2105, 2117-2118, 109 L.Ed.2d 631 (1990), nothing but the conclusiveness of history can explain why jurisdiction based upon mere service of process within a State-either generally or on the precise facts of that case-is "fundamentally fair." Nor to my mind can anything else explain today's decision that a punishment whose assessment and extent are committed entirely to the discretion of the jury is "fundamentally fair." The Court relies upon two inconsequential factors. First, the "guidance" to the jury provided by the admonition that it "take into consideration the character and the degree of the wrong as shown by the evidence and necessity of preventing similar wrong." That is not guidance but platitude. Second, review of the amount of the verdict by the trial and appellate courts, which are also governed by no discernible standard except what they have done in other cases (unless, presumably, they announce a change). But it would surely not be considered "fair" (or in accordance with due process) to follow a similar procedure outside of this historically approved context-for example, to dispense with meaningful guidance concerning compensatory damages, so long as whatever number the jury picks out of the air can be reduced by the trial judge or on appeal. I can conceive of no test relating to "fairness" in the abstract that would approve this procedure, unless it is whether something even more unfair could be imagined. If the imposition of millions of dollars of liability in this hodge-podge fashion fails to "jar [the Court's] constitutional sensibilities," ante, at 18, it is hard to say what would.
When the rationale of earlier cases (Sniadach and Shaffer ) is contradicted by later holdings-and particularly when that rationale has no basis in constitutional text and itself contradicts opinions never explicitly overruled-I think it has no valid stare decisis claim upon me. Our holdings remain in conflict, no matter which course I take. I choose, then, to take the course that accords with the language of the Constitution and with our interpretation of it through the first half of this century. I reject the principle, aptly described and faithfully followed in Justice O'CONNOR's dissent, that a traditional procedure of our society becomes unconstitutional whenever the Members of this Court "lose . . . confidence" in it, post, at 63. And like Justice Cardozo in Snyder, I affirm that no procedure firmly rooted in the practices of our people can be so "fundamentally unfair" as to deny due process of law.
Let me be clear about the scope of the principle I am applying. It does not say that every practice sanctioned by history is constitutional. It does not call into question, for example, the case of Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), relied upon by both the majority and the dissent, where we held unconstitutional the centuries-old practice of permitting convicted criminals to reduce their prison sentences by paying fines. The basis of that invalidation was not denial of due process but denial to indigent prisoners of equal protection of the laws. The Equal Protection Clause and other provisions of the Constitution, unlike the Due Process Clause, are not an explicit invocation of the "law of the land," and might be thought to have some counterhistorical content. Moreover, the principle I apply today does not reject our cases holding that procedures demanded by the Bill of Rights-which extends against the States only through the Due Process Clause-must be provided despite historical practice to the contrary. Thus, it does not call into question the proposition that punitive damages, despite their historical sanction, can violate the First Amendment. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 349-350, 94 S.Ct. 2997, 3011-3012, 41 L.Ed.2d 789 (1974) (First Amendment prohibits awards of punitive damages in certain defamation suits).
A harsh or unwise procedure is not necessarily unconstitutional, Corn Exchange Bank, 280 U.S., at 223, 50 S.Ct., at 95, just as the most sensible of procedures may well violate the Constitution, see Maryland v. Craig, 497 U.S. 836, 860-861, 110 S.Ct. 3157, 3171-3172, 111 L.Ed.2d 666 (1990) (SCALIA, J., dissenting). State legislatures and courts have the power to restrict or abolish the common-law practice of punitive damages, and in recent years have increasingly done so. See, e.g., Alaska Stat.Ann. § 09.17.020 (Supp.1990) (punitive damages must be supported by "clear and convincing evidence"); Fla.Stat. § 768.73(1)(a) (1989) (in specified classes of cases, punitive damages are limited to three times the amount of compensatory damages); Va.Code Ann. § 8.01-38.1 (Supp.1990) (punitive damages limited to $350,000). It is through those means-State by State, and, at the federal level, by Congress-that the legal procedures affecting our citizens are improved. Perhaps, when the operation of that process has purged a historically approved practice from our national life, the Due Process Clause would permit this Court to announce that it is no longer in accord with the law of the land. But punitive damages assessed under common-law procedures are far from a fossil, or even an endangered species. They are (regrettably to many) vigorously alive. To effect their elimination may well be wise, but is not the role of the Due Process Clause. "Its function is negative, not affirmative, and it carries no mandate for particular measures of reform." Ownbey, 256 U.S., at 112, 41 S.Ct., at 438.
We have expended much ink upon the due-process implications of punitive damages, and the fact-specific nature of the Court's opinion guarantees that we and other courts will expend much more in the years to come. Since jury-assessed punitive damages are a part of our living tradition that dates back prior to 1868, I would end the suspense and categorically affirm their validity.

## Notes

* ↑ During the late 19th century the Court also advanced the view that laws departing from substantive common law might violate due process if they denied "fundamental" rights. See, e.g., Allgeyer v. Louisiana, 165 U.S. 578, 589, 17 S.Ct. 427, 431, 41 L.Ed. 832 (1897). The present analysis deals only with the Court's so-called "procedural" due process jurisprudence.
* ↑ In Shaffer, Justice STEVENS' concurrence noted that Delaware was the only State that currently exercised quasi in rem jurisdiction in the manner there at issue, viz., on the basis of ownership of stock in a state-chartered corporation, when both owner and custodian of the stock resided elsewhere. See 433 U.S., at 218, 97 S.Ct., at 2587 (opinion concurring in judgment). It seems not to have been asserted, moreover, that that manner of exercise had ever been a common and established American practice.
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