Of Dragons and Excessive Fines

By Connor Gallagher
Connor Gallagher is a junior in the School of Engineering and Applied Science studying chemical and biomolecular engineering.


The most recent editions of the University of Pennsylvania Law Review have articles on class action lawsuits, intellectual property, and bankruptcy law––topics you would expect to encounter in a law review. In the middle of an 1897 Harvard Law Review article, future Supreme Court Justice Oliver Wendell Holmes found himself discussing…dragons.

His advice just might save your life one day: “When you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is his strength. But to get him out is only the first step. The next is either to kill him, or to tame him and make him a useful animal.” [1]


Fast forward 122 years to today. Americans are rejoicing in the streets, for they have been granted a new right under the Constitution. On February 20, the Supreme Court held in Timbs v. Indiana that the Excessive Fines Clause of the Eighth Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment. [2] In other words, all state governments––in addition to the federal government––are prohibited from imposing excessive fines on convicted defendants. Timbs is the latest in a long line of cases to invoke the wisdom of Sir William Blackstone and his Commentaries on the Laws of England; in her opinion, Justice Ruth Bader Ginsburg uses Blackstone, along with the Magna Carta, to make the point that a prohibition on excessive fines dates back centuries in the English legal tradition. [3]


Blackstone’s Commentaries “are essentially a published version” of his 70-lecture course given during the 1753-54 academic year at Oxford. [4] Unlike traditional legal studies at the time, which were concerned with civil law, Blackstone aimed to give a comprehensive guide to the common law of England. [5]


Common law can be quickly defined as judge-made law, or case law. Accordingly, common law systems prioritize judicial opinions, resulting from actual cases or controversies, to say definitively what the law is. Contrast this with civil law systems, like that of the Romans, which explicitly enumerate the law in the form of statutes and grant judges little autonomy to interpret the law. As Blackstone details early on his lectures, the common law refers to the traditions and customs of English legal proceedings crafted by judges over hundreds, if not thousands, of generations, covering everything from the definitions of crimes to the particulars of trial procedure.


It became a serious point of contention after the success of the American Revolution whether or not the common law should be inherited from England to the newly established nation. Thomas Jefferson and many of his contemporaries were wary of adopting a legal tradition that had been wielded to subjugate the colonists in and outside of England. [6] However, all U.S. states have enacted what are called reception statutes, which officially adopt the English common law. [7] That being said, many originally “unwritten” rules of the common law have since been formally codified in the form of statutes, a nod to the prescriptions of civil law. And, of course, many states have overruled parts of the common law with their own statutes; in Pennsylvania, for example, 1 Pa.C.S. §1504 explicitly says that statutory remedies are preferred over common law remedies. Nevertheless, the common law remains a very real force in the American legal system.


Because of the Commentaries, Blackstone has become synonymous with common law, particularly in the United States. In fact, the Supreme Court has on numerous occasions stipulated that Blackstone’s “works constituted the preeminent authority on English law for the founding generation,” thereby profoundly influencing the manner in which the founders constructed the laws of the nascent United States. [8]


Accordingly, Blackstone is referenced with great frequency in Supreme Court opinions. Recent landmark opinions in District of Columbia v. Heller (2008), Burwell v. Hobby Lobby (2014), and Obergefell v. Hodges (2015) all make reference to his work, despite their diverse subject matter. Besides Timbs, two other cases this term, which is still far from finished, have also invoked Blackstone’s writings. [9]


Notably, Blackstone features heavily in the Heller case, in which the majority, led by the late Justice Antonin Scalia, held that the Second Amendment protects an individual’s right to possess a firearm. [10] Justice Scalia was a well-known originalist, believing that the Constitution should be interpreted as the founders intended it. Accordingly, Scalia spends considerable time discussing the origins of the Amendment and its historical context. In doing so, he cites Blackstone’s first chapter, “Of the Absolute Rights of Individuals,” where Blackstone asserts that “the fifth and last auxiliary right of the subject…is that of having arms for their defence…” [11] Scalia soon after explains the importance of this statement: “Thus, the right [to have arms] was by the time of the founding understood to be an individual right protecting against both public and private violence.” [12]


It is for this reason that my discussion here is not one of historical trivia. If Blackstone’s 250-year-old lectures are considered dispositive in a politically-charged landmark opinion like Heller, then, certainly, American citizens need to become well-acquainted with his works and assess for themselves the usefulness of the Commentaries. The future composition of the Supreme Court may depend on it.


After all, the Commentaries are not without criticism. Their most famous critic is the utilitarian philosopher Jeremy Bentham, who actually witnessed Blackstone’s lectures in person at the age of sixteen. Bentham’s disdain for the Commentaries “arose largely from the rapturous praise with which Blackstone depicted English law and from Blackstone’s almost total unwillingness to notice any defect in the English legal system.” [13] Most historians agree with Bentham’s observation that eighteenth century English law was unworthy of admiration, characterized by “judges and lawyers who steadfastly opposed any reform of [its] obsolete features…and who preferred, instead, to take lucrative advantage of the opportunities for exorbitant fees afforded by an archaic legal system.” [14]


Moreover, the Commentaries have the potential to be wielded by originalists to sanction outdated conceptions of law. For instance, Chief Justice Roberts, in his Obergefell dissent, cites Blackstone’s consideration of marriage between “husband and wife” as one of the “great relations in private life.” [15] Of course, Blackstone also states that “[b]y marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage…” [16]


In Roberts’s defense, he does soon after acknowledge that “states have replaced coverture, the doctrine by which a married man and woman became a single entity.” [15] But certainly we may justifiably question the applicability of a text to modern legal decisions when the text’s views are so ridiculous and backward to modern sensibilities. It is for this very reason that we do not consult the Bible, which on one occasion demands a death sentence for working on the Sabbath, to make criminal sentencing guidelines. [17]


Justice Holmes’s dragon, I will now reveal, was meant as a metaphor for the common law. Just as one must decide whether to kill the dragon or to tame it, one must, when confronted with an ancient legal custom, decide whether the rule still has worth. Holmes continues, “[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.” [1] Blackstone himself conceded in his explanation of the common law that “if it be found that the former decision [i.e., the precedent] is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law.” [18] In other words, one of the oldest and noblest traditions in law is rejecting tradition in law.




1. Oliver Wendell Holmes, Jr., “The Path of the Law,” 10 Harvard Law Review 457 (1897). https://www.constitution.org/lrev/owh/path_law.htm.


2. Timbs v. Indiana, 586 U.S. ____ (2019). https://www.supremecourt.gov/opinions/18pdf/17-1091_5536.pdf.


3. Ibid., at 4.


4. Sir William Blackstone, Commentaries on the Laws of England, Book I, Oxford University Press, 2016, General Editor’s Introduction, Wilfrid Prest, pages ix-x.


5. Ibid., at viii.


6. “A Biography of William Blackstone,” American History: From Revolution to Reconstruction and Beyond, University of Groningen, http://www.let.rug.nl/usa/biographies/william-blackstone/.


7. See, for example, 1 Pa.C.S. §1503.


8. Timbs v. Indiana, 586 U.S. ____ (2019), Thomas, concurring, at 8; D.C. v. Heller, 554 U.S. 570 (2008), at 20, for just two examples.


9. See Garza v. Idaho (2019), Thomas, dissenting; and Stokeling v. United States (2019).


10. District of Columbia v. Heller, 554 U.S. 570 (2008). https://www.supremecourt.gov/opinions/07pdf/07-290.pdf.


11. 1 Blackstone 139, page 97 in Oxford University Press 2016 edition.


12. D.C. v. Heller, at 21.


13. Dean Alfange, Jr., “Jeremy Bentham and the Codification of Law,” 55 Cornell Law Review 1, November 1969, at 59.


14. Ibid., at 58-59.


15. Obergefell v. Hodges, 576 U.S. ____ (2015), Roberts, dissenting. https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf.


16. 1 Blackstone 430, page 284 in Oxford University Press 2016 edition.


17. See Exodus 35:2.


18. 1 Blackstone 70, page 52 in Oxford University Press 2016 edition.

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