¹ The definition would exclude, for instance, regimes discussed in Mark Tushnet, “Authoritarian Constitutionalism,” Cornell Law Review 100, forthcoming.

² See Orren, Karen, “Doing Time: A Theory of the Constitution,” Studies in American Political Development 26 (2012): 71–81Google Scholar; also “The Criminal Foundations of American Constitutional Development and How It Matters” (paper presented at the Annual Meeting of the American Political Science Association, Washington, DC, 2010, available from the author).

³ Orren, Karen and Skowronek, Stephen, The Search for American Political Development (Cambridge: Cambridge University Press, 2004), 20–24Google Scholar.

⁴ The Petition of Right, issued by the British Parliament in 1628 and addressed to King Charles I, protests the imposition of criminal penalties, including death, dismemberment, and imprisonment, without benefit of the customs and laws of the realm; it also protests acts of criminality by officers of the king that have gone unpunished.Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), struck down, on grounds of First Amendment freedom of speech, sections of the Bipartisan Campaign Reform Act of 2002 limiting independent political contributions by corporations, labor unions, and other associations.

⁵ On this muddle there is wide scholarly consensus. See, for a range of works, Clark, J. Morris, “Civil and Criminal Penalties and Forfeitures: A Framework for Constitutional Analysis,” Minnesota Law Review 60 (1975–1976): 379Google Scholar; Steiker, Carole S., “Punishment and Procedure: Punishment and the Criminal-Civil Divide,” Georgetown Law Review 85 (1997): 775Google Scholar; Markowitz, Peter L., “Straddling the Civil-Criminal Divide: A Bifurcated Approach to Understanding the Nature of Immigration Removal Proceedings,” Harvard Civil Rights–Civil Liberties Law Review 43 (2008): 289Google Scholar; and Rustad, Michael L., “Does the World Still Need United States Tort Law? Or Did It Ever?,” Pepperdine Law Review 38 (2011): 433Google Scholar.

⁶ A half-century ago, the Supreme Court drew up its own checklist of “traditionally applied factors” to distinguish criminal and civil penalties. Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). Also see U.S. v. Ward, 448 U.S. 242 (1980). The list has been widely criticized and opportunistically applied.

⁷ Both categories are subject to the basic argument, but they are historically complicated in ways beyond the scope of this essay. See note 3 above. One of the referees asked in his/her review how Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) and Windsor v. New York, 133 S. Ct. 2675 (2013) would fit into the pattern. Suffice to say here that racially integrated education was a criminally punishable activity under the Jim Crow laws during the 1950s, and state laws that DOMA was designed to reinforce were criminal statutes.

⁸ Padilla v. Kentucky, 130 S. Ct. 1473, 1480 (2010).

⁹ Ibid., 1486 and n11.

¹⁰ National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2595 (2012).

¹¹ Exxon Shipping Co. v. Baker, 554 U.S. 471, 526 (2008).

¹² BMW Motors of North America v. Gore, 517 U.S. 559 (1996).

¹³ State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003).

¹⁴ Philip Morris USA v. Williams, 549 U.S. 346 (2007).

¹⁵ See, for instance, Nezar, Amir, “Reconciling Punitive Damages with Tort Law's Normative Framework,” Yale Law Review 121 (2011): 678Google Scholar; Colby, Thomas B., “Clearing the Smoke from Philip Morris v. Williams: The Past, Present, and Future of Punitive Damages,” Yale Law Review 118 (2008): 392Google Scholar; Hines, N. William, “Marching to a Different Drummer: Are Lower Courts Faithfully Implementing the Evolving Due Process Guideposts to Catch and Correct Excessive Punitive Damage Awards?,” Catholic University Law Review 62 (2013): 371Google Scholar.

¹⁶ BMW, 517 U.S. at 585.

¹⁷ State Farm, 538 U.S. at 428.

¹⁸ Phillip Morris USA, 549 U.S. at 354.

¹⁹ Exxon Shipping Co., 554 U.S. at 505, quoting Frankel, Marvin, Criminal Sentences: Law without Order (New York: Hill & Wang, 1973), 7–8Google Scholar.

²⁰ Smith v. Wade, 461 U.S. 30, 59 (1983), citing Huber v. Teuber, 10 D.C. 484, 490 (1877) on punitive damages as “quasi-criminal”; the Eighth Amendment decision is Browning-Ferris Industries v. Kelco, 492 U.S. 257 (1989).

²¹ That the Court might be “jarred” is in Pacific Mutual Life v. Haslip, 499 U.S. 1, 18 (1989); a set of “guideposts” may be viewed in BMW, 517 U.S. at 574–75.

²² See Stevens above and Exxon Shipping, 554 U.S. at 492–93. Trial court judges have the authority to modify jury awards under highly restrictive conditions.

²³ Izzarelli v. R. J. Reynolds Tobacco Co., 767 F. Supp. 2d 324 (2010); Ellis v. La Vecchia, 567 F. Supp. 2d 601(2008); Mejias v. Roth (In re Bayside Prison Litig.), 331 Fed. Appx. 987 (2009); Sallitt v. Stankus, 720 F. Supp. 2d 645 (2010); Blasic v. Chugach Support Servs., 2010 U.S. Dist. LEXIS 86022 (2010) ; United States EEOC v. AutoZone, Inc., 822 F. Supp. 2d 824 (2011); Berardi v. Vill. of Sauget, 2008 U.S. Dist. LEXIS 54863 (2008); Thompson v. Lied Animal Shelter, 2009 U.S. Dist. LEXIS 96383 (2009).

²⁴ The exception is Solem v. Helm, 463 U.S. 277 (1983). The defendant was sentenced under a South Dakota statute to life in prison without possibility of parole for writing a bad check for $100. In another Eighth Amendment case, Harmelin v. Michigan, 501 U.S. 957, 965 (1991), Justice Scalia's opinion for a fragmented Court declared Solem “was simply wrong; the Eighth Amendment contains no proportionality guarantee.” He was joined in this view only by Chief Justice Rehnquist. Four decades earlier, in Trop v. Dulles, 356 U.S. 86 (1958), the Court decided in a plurality opinion that the removal of a citizen's passport for conviction of desertion in a court martial was unconstitutional. Four members of the Court held this was cruel and unusual contrary to the Eighth Amendment. With respect to state penalties, the Court has struck down certain penalties without having ruled them out categorically. For instance, in Skinner v. Oklahoma, 316 U.S. 535 (1942), it struck compulsory sterilization for two or more felony convictions for crimes of “moral turpitude,” on equal protection grounds. The reason given was that the penalty applied to fraud but not to embezzlement, which the Court said was intrinsically the same crime. More recently, it struck life sentences for juveniles without the possibility of parole when disproportionately applied to crimes not involving murder (Graham v. Florida, 560 U.S. 48 [2010]), and when sentences are mandatory (Miller v. Alabama, 132 S. Ct. 2455 [2012]).

²⁵ Helvering v. Mitchell, 303 U.S. 391, 399, 401 (1938). Justice Brandeis compares the action to the deportation of an immigrant, notable in light of Padilla v. Kentucky, discussed above.

²⁶ The leading contemporary case, United States v. Hudson, 522 U.S. 93, 105 (1997), concerned three small-town bankers assessed civil fines and debarred from participation in the banking industry for making self-serving loans by the federal Office of the Controller of the Currency. Subsequently, they were indicted on twenty-two counts of conspiracy and misapplication of funds for the same transactions. The Court, applying various tests from earlier opinions, decided that the fines were not so grossly disproportionate to the costs incurred by Government as to be nonremedial, that the details of the law indicated Congress intended “civil” penalties, and there had been “very little showing that money penalties and debarment sanctions are criminal.”

²⁷ United States v. Halper, 490 U.S. 435 (1989).

²⁸ Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767 (1994).

²⁹ United States v. Ursery, 518 U.S. 267 (1996).

³⁰ United States v. $405,089.23 United States Currency, 33 F.3d 1210 (9th Cir. 1994); United States v. Ursery, 59 F.3d 568 (1995).

³¹ Ursery, 518 U.S. at 282, 290.

³² On “quasi-punitive,” see in addition to Smith v. Wade, already discussed, United States v. Two Tracts of Real Property with Bldgs., 998 F. 2d 204, 213 (1993); and United States v. Menominee Tribal Enterprises, 601 F. Supp. 2d 1061, 1067 (2009).

³³ That municipalities might be sued was the holding in Monell v. Department of Social Services of New York City, 436 U.S. 658 (1978).

³⁴ A parallel but far more limited right is provided against injury by federal officers in Bivens v. Six Unknown Narcotics Officers, 403 U.S. 388 (1971).

³⁵ Monroe v. Pape, 360 U.S. 167 (1961). The statute today reads: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

³⁶ In a series of decisions, the Court held state and federal officers have “qualified immunity,” that is, are not liable to civil suit, “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” See, for example, Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Prior to that, officers were held immune only when they acted within the necessary discretion commensurate with their authority or for reasons of public policy. See Scheuer v. Rhodes, 416 U.S. 232 (1974), and Butz v. Economou, 438 U.S. 478 (1978).

³⁷ For instance, a prisoner's 1983 suit for injury to his Eighth Amendment right against cruel and unusual punishment was upheld by the Court upon evidence of severe and prolonged physical pain inflicted by medical officers who acted unintentionally but with “reckless disregard” (Estelle v. Gamble, 429 U.S. 97 [1976]). This decision remains good law today.

³⁸ Parratt v. Taylor, 451 U.S. 527, 550 (1981); quoting Paul v. Davis, 424 U.S. 693, 701 (1976).

³⁹ A good discussion is Fallon, Richard H. Jr., “Some Confusions about Due Process, Judicial Review, and Constitutional Remedies,” Columbia Law Review 93 (1993): 309Google Scholar.

⁴⁰ Justice Blackmun, with whom Justice White joins, Parratt, 451 U.S. at 545–46; Justice Powell, id. at 548; Justice Marshall (dissenting in part), id. at 556. Also see Justice Stewart's doubts as to the constitutional rights protected against negligent acts, id. at 544. Parratt’s state-of-mind disclaimer was formally withdrawn in Daniels v. Williams, 474 U.S. 327 (1986), but it carries on. See for instance, in the context of a 1983 suit for injuries under the Fourth Amendment, Hudson v. New York City, 271 F.3d 62 (2d Cir. 2001).

⁴¹ Parratt, 451 U.S. at 531; cite to United States v. Hudson & Goodwin, 11 U.S. 32 (1812).

⁴² Board of Regents v. Roth, 408 U.S. 564 (1972). This approach was repudiated in Castle Rock v. Gonzales, 545 U.S. 748 (2005).

⁴³ Parratt, 451 U.S. at n1 quoting Roth, 408 U.S. 564, 577 (1972).

⁴⁴ Paul v. Davis, 424 U.S. 693, 708 (1976).

⁴⁵ Ibid., 711–12.

⁴⁶ See Donnelly, R. C., “History of Defamation,” Wisconsin Law Review (1949): 99–126Google Scholar.

⁴⁷ Justice Brennan, who writes the Paul dissent, makes intentionality the gist of the officer's abuse of power. Moreover, in comparing acts undertaken by a private person and an officer, he describes entry of a private home, the manacling and threatening of the owner, and searching the home in the course of a robbery and a narcotics investigation, respectively (Paul 424 U.S. at 716).

⁴⁸ In order of discussion: United States v. Lovett, 328 U.S. 303 (1946); Joint Anti-Fascist Refugee Comm. v. McGrath , 341 U.S. 123 (1951); Cafeteria Workers v. McElroy, 367 U.S. 886 (1961); Barr v. Matteo, 360 U.S. 564 (1959); Howard v. Lyons, 360 U.S. 593 (1959).

⁴⁹ In addition to Constantineau, these are Wieman v. Updegraff, 344 U.S. 183 (1952), in Oklahoma; Jenkins v. McKeithen, 395 U.S. 411 (1969), in Louisiana.

⁵⁰ Wisconsin v. Constantineau, 400 U.S. 433 (1971). Douglas's opinion would seem to afford no importance to defamation's noncriminal status. At 437, he quotes: “The right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society” (Anti-Fascist Committee v. McGrath , 341 U.S. 123, 168 [Frankfurter, J., concurring]).

⁵¹ Constantineau, 400 U.S. at 444.

⁵² See, for example, Smolla, Rodney A., “The Displacement of Federal Due Process Claims by Tort Remedies: Parratt v. Taylor and Logan v. Zimmerman Brush Company,” University of Illinois Law Review (1982): 840Google Scholar. Also see, generally, Goldberg, John C. P., “The Constitutional Status of Tort Law: Due Process and a Right to a Law for Redress of Wrongs,” Yale Law Journal 115 (2005): 524Google Scholar.

⁵³ Roe v. Wade, 410 U.S. 113 (1973).

⁵⁴ Precedent from 1908 provides that parties about to suffer injuries by a state enforcement action may seek a federal injunction; this holding constitutes an exception to the Eleventh Amendment that forbids legal action against a state or its officers without its permission: Ex Parte Young, 209 U.S. 123 (1908).

⁵⁵ Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) (en banc). At 410, plaintiffs argued the law imposed an “undue burden” on the mother, contrary to Planned Parenthood v. Casey, 505 U.S. 833 (1992). See Manian, Maya, “Privatizing Bans on Abortion: Eviscerating Constitutional Rights through Torts Remedies,” Temple Law Review 80 (2007): 123Google Scholar.

⁵⁶ The court considered only a subsection of the law that concerned the backup insurance agency and found that constitutional: K. P. v. LeBlanc, 729 Fed. 3d. 427 (2013).

⁵⁷ See the discrimination suits described and information about the law as it operated after passage in Jamison, Cynthia C., “The Cost of Defiance: Plaintiffs’ Entitlement to Damages under the California Civil Rights Initiative,” Southwestern University Law Review 33 (2004): 521Google Scholar.

⁵⁸ It is instructive to compare the strategic situation here with that facing opponents in the case of the issuance of marriage licenses in San Francisco in 2004 to same-sex couples, in violation of the California State Family Code. There, the attorney general sued to enjoin city officials from continuing to violate their duty. Had the injunction petition failed, these same persons were subject to criminal penalties for abuse of office. See Lockyear v. City and County of San Francisco, 33 Cal. 4th 1055 (2004).

⁵⁹ Coalition for Economic Equity v. Wilson, 946 F. Supp. 1480, 1506–1510 (1996). Precedents cited were Hunter v. Erickson, 393 U.S. 385 (1969); Washington v. Seattle School District No. 1, 458 U.S. 457 (1982); and Romer v. Evans, 517 U.S. 620 (196l).

⁶⁰ Coalition for Economic Equity v. Wilson, 122 F.3d 692, 704 (9th Cir. 1997). Reviewing a similar ballot measure in Michigan in 2012, the Sixth Circuit decided to the contrary, and found for the plaintiffs on the merits on equal protection grounds: Coalition to Defend Affirmative Action v. Regents of University of Michigan, 701 F.3d 466 (6th Cir. 2012 [en banc]). When the Sixth Circuit decision reached the Supreme Court, it was reversed: Schuette v. Coalition to Defend Affirmative Action (BAMN), 188 L. Ed. 2d 613 (2014).

⁶¹ See Lysander Spooner, An Essay on the Trial by Jury, Google Books, 112–23. I was made aware of this source by “Developments in the Law: the Civil Jury,” Harvard Law Review 110 (1997): 1418Google Scholar. On the mysteries of the Seventh Amendment see Henderson, Edith Guild, “The Background of the Seventh Amendment,” Harvard Law Review 80 (1966): 289CrossRefGoogle Scholar. At early common law, victims of serious crimes had the alternative of either criminally prosecuting or suing perpetrators at civil law for damages. See Seipp, David J., “The Distinction between Crime and Tort in the Early Common Law,” Boston University Law Review 17 (1996): 59Google Scholar.

⁶² See Dripps, Donald, “The Exclusivity of the Criminal Law: Toward a ‘Regulatory’ Model of, or ‘Pathological’ Perspective on, the Civil-Criminal Distinction,” Journal of Contemporary Legal Issues 7 (1996): 199Google Scholar.

⁶³ Albright v. Oliver, 510 U.S. 266 (1994); compare Handler v. Mayhew, 841 F. Supp. 2d 443 (2012).

⁶⁴ Shelley v. Kraemer, 334 U.S. 1 (1948).

⁶⁵ First legislated in 1871, Title 18, Section 241 makes it unlawful for two or more persons to agree together to injure, threaten, or intimidate a person in any state, territory, or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the United States. The offense is punishable by a range of imprisonment up to a life term or the death penalty, depending upon the circumstances of the crime, and the resulting injury, if any. Section 242 of Title 18 makes it a crime for a person acting under color of any law to willfully deprive a person of a right or privilege protected by the Constitution or laws of the United States.

⁶⁶ Cf. Edwards v. Habib, 397 F. 2d, 687 (1968); Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972); United Egg Producers v. Standard Brands, Inc., 44 Fed. 3d 940 (1995). A good review of interpretations in the aftermath of Shelley is in Rosen, Mark D., “Was Shelley v. Kraemer Incorrectly Decided? Some New Answers,” California Law Review 95 (2007): 451Google Scholar.

⁶⁷ Screws v. United States, 325 U.S. 91 (1945); Twining v. New Jersey, 211 U.S. 78 (1908). Twining held that while certain rights enumerated in the Bill of Rights might apply to the states under the due process clause of the 14th Amendment, the right against self-incrimination under the Fifth Amendment is not incorporated. Screws 325 U.S. 91 held that the victim in the case had been murdered “under color” of state law, albeit by law enforcement officers acting unlawfully, so that a prosecution under the federal civil-rights statute in federal court was permissible. The Douglas musing referred to is at 97. Twining is cited in Shelley, 334 U.S. at 15 and in Screws, 325 U.S. at 95. Judges are presently immune to civil suit, but not to criminal prosecution. Clues yet to be followed but which possibly point in this direction include McGhee v. Sipes, upholding a racial covenant a year before Shelley and decided in the same Supreme Court case as Shelley. In McGhee, the (same) Michigan court distinguished real estate from other settings—public education and accommodations—that as a matter of “public policy” were protected against discrimination under the state's penal code (316 Mich. 614, 624 [1947]).

⁶⁸ See Harper, Fowler V., “Malicious Prosecution, Defamation, and False Arrest,” Texas Law Review 15 (1937): 169ffGoogle Scholar.

⁶⁹ Indeed, this would fit the model of an inward, self-regarding “officist” criminal law. See Orren, “Criminal Foundations” (note 2 above).

⁷⁰ In this vein, see Lee Epstein, Christopher M. Parker, and Jeffrey A. Segal, “Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment” (revised paper originally presented at the 2013 APSA meetings, Chicago, IL).

⁷¹ See, for instance, Rudstein, David S., “A Brief History of the Fifth Amendment Guarantee against Double Jeopardy,” William and Mary Bill of Rights Journal 14 (2005): 205–8Google Scholar; and “Punitive Damages for Deterrence, When and How Much?,” Alabama Law Review 40 (1988–89): 1143Google Scholar. On the difficulty of sorting out judges’ motives see Frank, Nancy, “From Civil to Criminal Penalties in the History of Health and Safety Laws,” Social Problems 5 (1983): 535Google Scholar. On defamation, and for an interpretation of trespass in keeping with the perspective here, see Cameron, Florence Frances, “Note: Defamation Survivability and Demise of the Antiquated ‘Actio Personalis’ Doctrine,” Columbia Law Review 85 (1985): 1833Google Scholar.

⁷² An excellent historical treatment remains Jaffe, Louis L., “Suits against Governments and Officers: Sovereign Immunity,” Harvard Law Review 77 (1963): 1Google Scholar.