The 'Professional' Meaning of the Ex Post Facto Clauses

Abstract

Since its first interpretation of the Ex Post Facto Clause in Calder v. Bull, the Supreme Court consistently has held that the clause applies only to retroactive criminal, but not civil, laws. The consequences of this distinction are far-ranging, permitting, for example, states to keep offenders behind bars after they have served their sentences. The Court’s distinction between civil and criminal retroactivity is based wholly on Calder’s historical conclusion that the original meaning of the Ex Post Facto Clause included criminal laws only. This article demonstrates that Calder’s historical analysis is wrong. After examining historical evidence that never before has been considered by scholars or judges interpreting the Ex Post Facto Clause, I conclude that the original meaning of the clause encompassed civil as well as criminal laws. This new evidence calls for a reconsideration of Calder and raises the intriguing possibility of greater judicial scrutiny of civil retroactivity. I also examine the most common doctrinal, structural, and normative arguments for retaining Calder and, based on this new historical analysis, offer new ways of approaching these arguments.