Thomas, J., concurring in judgement
to be according to the degree of the fault and the estate of the defendant”).
When the States were considering whether to ratify the Constitution, advocates for a separate bill of rights emphasized the need for an explicit prohibition on excessive fines mirroring the English prohibition. In colonial times, fines were “the drudge-horse of criminal justice,” “probably the most common form of punishment.” L. Friedman, Crime and Punishment in American History 38 (1993). To some, this fact made a constitutional prohibition on excessive fines all the more important. As the well-known Anti-Federalist Brutus argued in an essay, a prohibition on excessive fines was essential to “the security of liberty” and was “as necessary under the general government as under that of the individual states; for the power of the former is as complete to the purpose of requiring bail, imposing fines, inflicting punishments,… and seizing… property… as the other.” Brutus II (Nov. 1, 1787), in The Complete Bill of Rights 621 (N. Cogan ed. 1997). Similarly, during Virginia’s ratifying convention, Patrick Henry pointed to Virginia’s own prohibition on excessive fines and said that it would “depart from the genius of your country” for the Federal Constitution to omit a similar prohibition. Debate on Virginia Convention (June 14, 1788), in 3 Debates on the Federal Constitution 447 (J. Elliot 2d ed. 1854). Henry continued: “[W]hen we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives” to “define punishments without this control.” Ibid.
Governor Edmund Randolph responded to Henry, arguing that Virginia’s charter was “nothing more than an investiture, in the hands of the Virginia citizens, of those rights which belonged to British subjects.” Id., at 466. According to Randolph, “the exclusion of excessive bail and fines… would follow of itself without a bill of rights,” for such fines would never be imposed absent “corruption in
