Original Sin - Calder v. Bull Revisited
42 Pages Posted: 19 Sep 2011
Date Written: September 19, 2011
For over two centuries, the classic case of Calder v. Bull has stood for the proposition that the term “ex post facto” prohibits passage of criminal laws with retroactive effect, but does not apply to civil laws, because ex post facto had a commonly accepted and restricted meaning in legal circles. This article makes the heretical claim that the four Justices who decided Calder v. Bull likely never read the pleadings, the act of the Connecticut legislature at issue in the case, or the leading American legal treatise of the day - all of which use “ex post facto” to apply in a civil context - contrary to the decision.
For the case to have been correctly decided, four odd things must be true: (i) Bull's two respected counsel misused “ex post facto” in pleadings; (ii) a legislature full of lawyers replicated this mistake when it drafted its act; (iii) two respected counsel for Calder made a specious argument that flew in the face of accepted usage even though they followed a suggestion in the leading legal treatise of the day; and (iv) the Connecticut appellate court must have thought these repeated and allegedly aberrant usages of technical, legal language merited no comment whatsoever.
The path of the law would have differed radically if the shear implausibility of all these things being true had been noticed because their falsity suggests a contrary result. Yet, no Justice or commentator noticed this inconsistency. If the Court had upheld the core rule of law principle against retroactive laws, and not committed the original sin of restricting the prohibition against ex post facto laws to criminal statutes, a plethora of retroactive laws would be unconstitutional because a legislature could not mandate retroactive application by express statutory language. Either deficiencies in the craft of lawyering or a vision of textual analysis completely alien to modern sensibilities led to the creation of a doctrine with truly breathtaking consequences for the structure of our legal system. The story of Calder reveals the legal process as intensely human, contingent and fallible.
Keywords: Calder v. Bull, ex post facto, constitutional law, legal realism, Karl Llewellyn, Justice Samuel Chase, Justice William Johnson, Justice Joseph Story, rule of law, stare decisis
JEL Classification: K19, K40
Suggested Citation: Suggested Citation