Thursday, July 24, 2014

Zoldan on the Ex Post Facto Clauses

Evan C. Zoldan, University of Toledo College of Law, has posted The "Professional" Meaning of the Ex Post Facto Clauses.  Here is the abstract:
Since its decision in Calder v. Bull, the Supreme Court has held consistently that the Ex Post Facto Clauses apply only to retroactive criminal, as opposed to civil, laws. Nevertheless, there continues to be significant scholarly debate over the original meaning of the clauses. Relying on sources contemporaneous with the framing of the Constitution, like treatises, newspaper articles, and notes from the debates in the Philadelphia Convention, some scholars conclude that the original meaning of the Ex Post Facto Clauses includes civil as well as criminal statutes; others, relying largely on this same evidence, conclude that the original meaning reaches only criminal statutes.

The key to resolving the dispute between these two camps of scholars lies in uncovering the “professional” meaning of the Ex Post Facto Clauses, that is, the meaning of the phrase “ex post facto” as it was used by the professional community of American judges and lawyers in the course of their work in the years leading up to the framing of the Constitution. The professional meaning of the phrase ex post facto has always been, and continues to be, the focal point for discussion of the original understanding of the Ex Post Facto Clauses; nevertheless, historical evidence of the professional meaning of the phrase ex post facto has been all but unexamined.

In this article, I seek to resolve the debate over the original understanding of the Ex Post Facto Clauses by examining undeveloped evidence of the professional meaning of the phrase ex post facto. I conclude that the professional meaning of the phrase ex post facto, and original understanding of the Ex Post Facto Clauses, includes retroactive civil, as well as criminal, laws. Finally, even leaving aside these historical arguments, the story of uncovering the professional meaning of the Ex Post Facto Clauses suggests that there are prudential, doctrinal, and structural reasons for reconsidering Calder’s limitation on the scope of the clauses.

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