CALDER v. BULL 3 Dallas 386 (1798)

Calder is the leading case on the meaning of the constitutional injunction against ex post facto laws. Connecticut had passed an act setting aside a court decree refusing to probate a will, and the plaintiff argued that the act constituted an ex post facto law. In the Court's main opinion Justice samuel chase ruled that although all ex post facto laws are necessarily "retrospective," retrospective laws adversely affecting the citizen in his private right of property or contracts are not ex post facto laws. The prohibition against the latter extended only to criminal, not civil, cases. An ex post facto law comprehends any retrospective penal legislation, such as making criminal an act that was not criminal when committed, or aggravating the act into a greater crime than at the time it was committed, or applying increased penalties for the act, or altering the rules of evidence to increase the chances of conviction.

The case is also significant in constitutional history because by closing the door on the ex post facto route in civil cases, it encouraged the opening of another door and thus influenced the course of the doctrine of vested rights. The contract clause probably would not have attained its importance in our constitutional history, nor perhaps the due process clause substantively construed, if the Court had extended the ex post facto clause to civil cases. In Calder, Chase endorsed the judicial doctrine of vested rights drawn from the higher law, as announced by Justice william paterson in van horne ' slesseev. dorrance (1795). Drawing on "the very nature of our free Republican governments" and "the great first principles of the social compact," Chase declared that the legislative power, even if not expressly restrained by a written constitution, could not constitutionally violate the right of an antecedent and lawful private contract or the right of private property. To assert otherwise, he maintained, would "be a political heresy," inadmissible to the genius and spirit of our governmental system.

Justice james iredell concurred in the judgment as well as the definition of ex post facto laws but maintained that judges should not hold an act void "merely because it is, in their judgment, contrary to the principles of natural justice," which he thought undefinable by fixed standards.

(See fundamental law; substantive due process.)

Leonard W. Levy
(1986)