The State Ex-Post Facto Clause

No State shall . . . pass any . . . ex post facto Law. . . .

—Evan C. Zoldan

Introduction

The State Ex Post Facto Clause provides that no state shall “pass any . . . ex post facto Law.” A companion clause, The Federal Ex Post Facto Clause similarly provides that no “ex post facto law shall be passed” by Congress. The U.S. Supreme Court has interpreted these two clauses to prohibit, roughly speaking, retroactive criminal laws at both the state and federal levels. These clauses arose out of the same historical experiences, support the same intuitive policies, and share the same modern judicial interpretations. This entry describes the historical background surrounding the inclusion of these clauses in the Constitution, focusing on the events that bear most heavily on their meaning today. Essay No. 70, which introduces the federal prohibition, describes the conceptual background and judicial interpretations of these two clauses.

History Before 1776

The term “ex post facto” did not originate in the Constitution. Nor was it coined by those who debated the document in Philadelphia. Rather, this term was known to British writers before the American Revolution who themselves learned it from older sources.¹ As used in these British and ancient sources, “ex post facto” meant, roughly speaking, retroactive, with the core case being retroactive criminal laws.² Although there has been some dispute over the scope of the term, both British and ancient sources considered ex post facto laws to be dangerous and unjust.

Sir William Blackstone described “ex post facto laws” in the following language: “after an action is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment on the man who has committed it.”³ Because, in this situation “it is impossible that the party could foresee that an action, innocent when done, should be afterwards converted to guilt by a subsequent law,” a person in violation of the law “had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust.”⁴

This passage shows both the core meaning of the term “ex post facto” and the core concerns that ex post facto laws elicit. Ex post facto laws declare that a person’s conduct, although innocent when done, is punishable as a crime. Ex post facto laws are “cruel and unjust” because they deny a person fair notice of what the law requires before attaching legal consequences to that conduct. In the decades before American independence, British sources other than Blackstone, including judicial opinions and law dictionaries, also used the term “ex post facto.”⁵ For example, in the British case of Wilkinson v. Meyer (1724), the court referred to a statute that retroactively impaired contract rights as an ex post facto act.⁶ Like Wilkinson, many of these British sources used the term “ex post facto” to include civil statutes.⁷

Ex Post Facto Laws After Independence

Blackstone’s aversion to ex post facto laws was widely shared in the new states after independence.⁸ Several states prohibited ex post facto laws in their new constitutions.⁹ Maryland’s 1776 constitution declared that ex post facto laws are “oppressive, unjust, and incompatible with liberty.”¹⁰ Early state courts expressed a similar distaste for ex post facto laws. In diverse contexts, they adjudged ex post facto laws to be void, improper, and an affront to justice. For example, in Respublica v. Chapman (1781), the Pennsylvania Supreme Court declined to apply a treason statute retroactively, opining that “ex post facto laws are unjust and improper.”¹¹ But not every state explicitly prohibited ex post facto laws. And perhaps reflecting the triumph of exigency over principle, several state legislatures enacted retrospective laws, including debtor relief laws, during the Confederation period.¹² Indeed, the same Pennsylvania court that declared ex post facto laws “unjust and improper” also noted that a legislature “impressed with the necessity of the case” had the right to enact even ex post facto criminal laws.¹³

The Constitutional Convention

The Framers had experienced firsthand both the economic and social dislocations caused by retrospective laws and the exigencies that prompted some legislatures to continue to enact them. Accordingly, there was a robust discussion during the Convention about whether such laws should be prohibited and if so, to what extent. Elbridge Gerry of Massachusetts introduced language to prohibit the federal legislature from passing any ex post facto law.¹⁴ James Wilson of Pennsylvania and Oliver Ellsworth of Connecticut, both future Supreme Court justices, objected to the inclusion of this language. Ellsworth argued that “ex post facto laws were void of themselves.” Therefore, “[i]t cannot then be necessary to prohibit them.”¹⁵ Wilson agreed that ex post facto laws were so obviously invalid that specifically prohibiting them would “bring reflexions on the Constitution—and proclaim that we are ignorant of the first principles of Legislation.”¹⁶ Hugh Williamson of North Carolina concurred with Wilson and Ellsworth that ex post facto laws were inappropriate but agreed with Gerry that they should be prohibited explicitly, noting that North Carolina’s constitution prohibited ex post facto laws.¹⁷

Although these early comments reflect the historical aversion to ex post facto laws, a later exchange highlighted that the scope of the term “ex post facto” remained unsettled. When Rufus King of Massachusetts moved to prohibit the interference with private contracts, Virginia’s George Mason objected that unforeseeable situations sometimes justified laws that interfered with contract rights. For example, he argued, a state should be permitted to shorten a statute of limitations period for bringing an action on an open account.¹⁸ Wilson countered that not all interferences with contracts would be prohibited, but rather only those that were retrospective.¹⁹ Madison added that the proposed prohibition on ex post facto laws “will oblige the Judges to declare such interferences null and void.”²⁰ At the end of this discussion, the Convention approved a motion to insert a prohibition on “retrospective laws.”²¹ The Committee of Style changed the phrase to the final form, “ex post facto” without noted objection.

The following day, John Dickinson of Delaware returned to the question implicitly raised by Madison, Mason, and Wilson. Dickinson reported that he had consulted his copy of Blackstone’s Commentaries and concluded that “the term[] ‘ex post facto’ related to criminal cases only” and “would not consequently restrain the States from retrospective laws in civil cases.”²² Apparently unconvinced by this reference to Blackstone, Mason continued to believe that the clause would prohibit even necessary retrospective civil laws. In the last days of the Philadelphia Convention, he moved to strike the clause as overbroad; his motion was voted down unanimously.²³

The Ratification Debates

State conventions and the public debated both of the questions that arose during the Philadelphia Convention: namely, whether retrospective laws were ever proper and whether the term “ex post facto” in the Constitution covered both criminal and civil laws or criminal laws only.

In the Virginia convention, Mason, now joined by Patrick Henry, again raised the concern that the clauses would prohibit salutary retroactive civil statutes. In Mason’s estimation, northern speculators owned large amounts of Continental paper money that, due to depreciation, was worth far less than its face value. He was concerned that the absolute prohibition on ex post facto laws would allow the redemption of depreciated paper money at face value, enriching speculators and saddling the states with enormous debt.²⁴ Future Attorney General Edmund Randolph responded that this concern was unfounded. The term “ex post facto,” he argued, referred “technically” to criminal laws and would be applied as such by judges.²⁵ Mason was unconvinced, concerned that the “general meaning” of the term ex post facto, which he claimed included all laws having retroactive effect, would prevail.²⁶

The point was addressed in other state conventions as well. In North Carolina, future Supreme Court justice James Iredell, along with Stephen Carrabus, argued that the clauses would prevent Congress from diminishing the value of the state’s paper currency. Although North Carolina initially rejected the Constitution following this discussion, Iredell and Carrabus’s argument does suggest that they understood the term “ex post facto” to include civil laws.²⁷ By contrast, New York’s ratification of the Constitution was accompanied by a declaration that its prohibition “against ex post facto laws, extends only to laws concerning crimes.”²⁸

The scope of the Ex Post Facto Clauses was debated in public settings as well. Newspaper articles from several states referred to laws interfering with property and contract rights as ex post facto.²⁹ Notably, Roger Sherman and Oliver Ellsworth, both prominent members of the Philadelphia Convention, wrote an open letter arguing that the prohibition of ex post facto laws would prevent the retroactive impairment of contract rights.³⁰ This reference to property and contract rights suggests that they believed the term “ex post facto” included civil laws.

In a pamphlet answering Mason’s public objections to the Constitution, James Iredell opined that ex post facto laws “have been some of the grossest acts of tyranny that were ever exercised.” Nevertheless, the future Supreme Court justice wrote that “a great and overruling necessity, acknowledged and felt by all” could justify the rare ex post facto law.³¹ Similarly, the Anti-Federalist writing as Centinel objected to the Constitution on the ground that the Ex Post Facto Clauses would prohibit laws interfering with civil obligations.³²

When advocating for the adoption of the draft Constitution, the authors of the Federalist Papers wrote extensively of their view of the Ex Post Facto Clauses. In Federalist No. 81, Alexander Hamilton explained that the prohibition on ex post facto laws was necessary to prevent the “creation of crimes after the commission of the fact, or in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law.” And Madison wrote in Federalist No. 44 that ex post facto laws were “contrary to the first principles of the social compact, and to every principle of sound legislation.” Accordingly, the Ex Post Facto Clauses, along with the Bill of Attainder clauses and the Contract Clause, stand as a “constitutional bulwark in favor of personal security and private rights” by preventing the worst kinds of abusive legislation. Madison’s reference to private rights can be read to mean that the Ex Post Facto Clauses, in conjunction with other constitutional prohibitions on the states, were meant to reach civil laws. (See Essay Nos. 80 and 82.)

Post-Ratification Interpretations of the Clauses

Ratification of the Constitution did not entirely settle the interpretation of the Ex Post Facto Clauses. In the years immediately following ratification, state courts interpreted the prohibition of ex post facto laws to include civil statutes.³³ By contrast, James Madison, by then a U.S. Representative, argued that the prohibition applied to criminal laws only. In 1790, Madison argued in the House of Representatives that a bill that would have allowed the debts of the United States to be paid below face value was not unconstitutional because “ex post facto laws related to criminal” rather than civil cases.³⁴

The debate, as a legal matter, was settled when the Supreme Court interpreted the Ex Post Facto Clauses in Calder v. Bull (1798).³⁵ In Calder, the Connecticut legislature had vacated a lower court judgment in a civil dispute. The Supreme Court upheld the law, with each justice writing separately. Three justices—Samuel Chase, William Paterson, and James Iredell—opined that Ex Post Facto Clause did not reach the state law because it related to a civil rather than a criminal matter. They relied on the “technical” meaning of the term “ex post facto,” as they believed it was used by lawyers. Following this technical meaning, the clause applied only to criminal or penal laws. Justice Paterson went further. He recalled that as a delegate to the Philadelphia Convention, he “had an ardent desire to have extended the provision in the Constitution to retrospective laws in general” but was unable to persuade his fellow delegates.³⁶

Despite Calder’s definitive legal ruling,³⁷ the scholarly debate over the proper scope of the Ex Post Facto Clauses continues. And because Calder’s opinions emphasized the original meaning of the Ex Post Facto clauses, the debate about their proper scope continues to revolve around the original meaning of the phrase used in the Constitution. Robert Natelson has argued that the original meaning of the Ex Post Facto clauses was limited to criminal laws and that, accordingly, Calder was correctly decided on historical grounds.³⁸ Professor Caleb Nelson, on the other hand, has argued that “the meaning of the prohibition arguably depended on whether one read the key phrase as a lawyer or as a layperson.”³⁹

Most commentators who have revisited the historical record, however, have concluded that Calder was wrongly decided as a matter of original meaning.⁴⁰ Indeed, recent scholarship has continued to uncover historical evidence that supports the broader, criminal-and-civil side of the debate. According to Professor John Mikhail, the widely understood public meaning of “ex post facto” during the Confederation and early Republic included at least some civil laws affecting title to land.⁴¹ The author of this essay has written that, contrary to the assertions of Dickinson and Randolph at the constitutional conventions, and those of Chase, Iredell, and Paterson in Calder, the “technical” meaning of “ex post facto” did not refer to criminal laws only. Rather, late colonial and early state cases described retrospective civil and criminal laws alike as ex post facto.⁴²

Open Questions

• The history of the Ex Post Facto Clauses exemplifies how historical research can lead to indeterminate conclusions about legal questions. How legal interpreters should handle this historical indeterminacy is an open question. One well-articulated solution is the concept of liquidation, by which post-ratification interpretations can settle questions left open by historical analysis alone.⁴³
• Courts and commentators have long criticized ex post facto laws in the harshest terms. Nevertheless, there is also a long tradition recognizing that, at least in some circumstances, retrospective laws can be justified.⁴⁴ Even if Calder is wrong as a matter of original meaning, whether a rule could be crafted that would more tightly restrict retroactive laws without unduly restricting legislative powers remains an open question.

1. Adolph Berger, Ex Post Facto in Roman Sources and Ex Post Facto Laws in Modern Juristic Terminology, 7 Seminar (The Jurist) 49, 65 (1949). ↩︎
2. 1 Blackstone 46. ↩︎
3. Id. ↩︎
4. Id. ↩︎
5. Satterlee v. Matthewson, 27 U.S. (2 Pet.) 380, 416 app. at 683–84 (1829) (Johnson, J., concurring). ↩︎
6. Wilkinson v. Meyer, 2 Ld. Raym. 1350, 1352 (1724). ↩︎
7. William W. Crosskey, The True Meaning of the Prohibition of the Ex Post Facto Clauses, in 1 Politics and the Constitution in the History of the United States 324, 330–32 (1953). ↩︎
8. N.C. Const. of 1776, art. XXIV; Md. Const. of 1776, art. XV. ↩︎
9. Wayne Logan, The Ex Post Facto Clause 7 (2022). ↩︎
10. Md. Const. of 1776, art. XV. ↩︎
11. Respublica v. Chapman, 1 U.S. (1 Dall.) 53 (Pa. 1781). ↩︎
12. Harold Krent, The Puzzling Boundary Between Criminal and Civil Retroactive Lawmaking, 84 Geo. L. J. 2143, 2153 (1996). ↩︎
13. Respublica, 1 U.S. (1 Dall.) at 53. ↩︎
14. 2 Farrand’s 376–77. ↩︎
15. Id. at 376. ↩︎
16. Id. ↩︎
17. Id. ↩︎
18. Id. at 439–440. ↩︎
19. Id. ↩︎
20. Id. ↩︎
21. Id. ↩︎
22. Id. at 448–49. ↩︎
23. Id. at 617. ↩︎
24. 3 Elliot’s 471–74. ↩︎
25. Id. at 477, 481. ↩︎
26. Id. at 479. ↩︎
27. 4 Elliot’s 184–85. ↩︎
28. 3 Elliot’s 328. ↩︎
29. Crosskey, supra at 327–29. ↩︎
30. Id. at 329–30. ↩︎
31. Marcus [James Iredell], Answers to Mr. Mason’s Objections to the New Constitution (1788), in Pamphlets on the Constitution of the United States 368 (Paul Leicester Ford ed., 1888). ↩︎
32. Storing 2.7.167. ↩︎
33. Crosskey, supra at 341–42. ↩︎
34. Id. at 338–39. ↩︎
35. 3 U.S. (2 Dall.) 386 (1798). ↩︎
36. Id. at 391–97. ↩︎
37. Eastern Enterprises v. Apfel, 524 U.S. 498, 538 (1998) (Thomas, J., concurring). ↩︎
38. Robert G. Natelson, Statutory Retroactivity: The Founders’ View, 39 Idaho L. Rev. 489, 521, 523 (2003). ↩︎
39. Caleb Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519, 578 (2003). ↩︎
40. Oliver P. Field, Ex Post Facto in the Constitution, 20 Mich. L. Rev. 315, 321 (1922); Krent, supra at 2143; Jane Harris Aiken, Ex Post Facto in the Civil Context: Unbridled Punishment, 81 Ky. L.J. 323, 326 (1992). ↩︎
41. John Mikhail, James Wilson, Early American Land Companies, and the Original Meaning of “Ex Post Facto Law,” 17 Geo. J.L. & Pub. Pol’y 79 (2019). ↩︎
42. Evan C. Zoldan, The Civil Ex Post Facto Clause, 2015 Wis. L. Rev. 728 (2015). ↩︎
43. Nelson, supra at 578. ↩︎
44. Bernard W. Bell, In Defense of Retroactive Laws, 78 Tex. L. Rev. 235, 248 (1999). ↩︎