Ellingburg v. United States · ¶22

I join the Court's opinion in full because it correctly applies our precedent. I write separately to clarify the foundation of that precedent. This Court's 1798 decision in Cal der v. Bull, 3 Dall. 386, established that the Ex Post Facto Clauses forbid only those retroactive laws that impose “punishment” for a “crime.” Id., at 386, 389–391 (opinion of Chase, J.). Over the 228 years since Calder, the Court has struggled to articulate what it means for a law to impose punishment for a crime, and thus to be subject to the Ex Post Facto Clauses. The Court's more recent precedents have implemented Calder through two multifactor tests that turn largely on whether the legislature labels the law as criminal or civil. But in 1798, “punishment” for a “crime” would have been understood to refer to any coercive penalty for a public wrong. Many laws that are nominally civil today would therefore…

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