State Bill of Attainder and State Ex Post Facto

Arguing that the Ex Post Facto Clause was “widely understood at the founding to extend to retroactive civil laws” and raising questions about the reliability of Madison’s notes from the Constitutional Convention.

Arguing that the meaning of “ex post facto law” to a member of the professional legal class at the time of the founding included civil ex post facto laws.

Calling into question, on originalist grounds, a narrow reading of the Bill of Attainder Clause.

Arguing that the Ex Post Facto Clause applies to state legislatures but also to state governments more broadly.

Theorizing that the Founders adopted the Bill of Attainder Clause because of their dedication to the rule of law.

Arguing that the Constitution was understood to be strongly anti-retroactivity but that the Supreme Court was correct in Calder v. Bull when it found the Ex Post Facto Clause to be limited to criminal statutes.

Arguing that the Ex Post Facto Clause was originally ambiguous about whether it applied to all laws or only to criminal penalties but that later court decisions fixed the meaning and that precedent should be respected.

Arguing that the Constitution’s prohibitions on bills of attainder prevent governments from singling out and punishing identifiable groups merely because of who they are.

Arguing for a limited reading of the Bills of Attainder Clause because the common law considered bills imposing punishment less than death to be “bills of pains and penalties,” which were treated differently at the time and are not prohibited by the Constitution. 

Arguing that understanding the Bills of Attainder Clause as a guarantee of procedural due process is more consistent with the English experience against which the Framers adopted the Clauses.