Liberals like that one. But the same term, in fact within weeks of it, I believe, we also said that there is a federal constitutional right, which my Constitution doesn't reflect, not to have an excessive jury verdict. We struck down excessive punitive damages. Now there have been excessive jury verdicts for over 200 years. Nobody ever thought that it was a federal matter, that it violated the federal Constitution.
Punitive damages are no different in that respect from excessive compensatory damages.
It's modernist versus the traditional view of the Constitution. It should not be thought, although it is often argued, that this new way of looking at the Constitution is desirable because it promotes needed flexibility. That's the argument you sometimes hear. The argument is usually made in anthropomorphic terms, like the people who talk about the stock market is resting for a new assault at the 4000 level. They do the same thing with Constitution.