Calder v. Bull, 3 U.S. 386 (1798)

The Connecticut legislature enacted a resolution granting a new hearing in a probate trial. The disappointed heirs challenged the legislative action as a violation of Article 1, Section 10, Clause 1 of the Constitution of the United States, which prohibits any state from passing an ‘‘ex post facto’’ law.

The Supreme Court of the United States unanimously upheld the legislative act, concluding that the ex post facto clause applies only in the criminal context. For example, Connecticut would have been prohibited by the clause from enacting a law establishing criminal sanctions for an activity that was legal at the time it was done. The probating of a will is a civil matter, however, and the federal Constitution’s prohibition against ex post facto laws does not cover it.

Calder v. Bull was one of the Supreme Court’s first decisions involving limitations on governmental power. It remains a landmark decision for that reason alone. It also remains significant because it was the first case in which members of the Court openly disagreed with one another about how the Constitution should be interpreted. Justice Samuel Chase maintained in his opinion that the meaning of the Constitution—including specific clauses in the Constitution such as the ex post facto clause—cannot be discerned from the text of the Constitution alone. He wrote: ‘‘An act of the Legislature (for I cannot call it a law) contrary to the first great principles of the social compact, cannot be considered a rightful exercise of legislative authority . . . . The genius, the nature, and the spirit, of our state governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them.’’

Justice James Iredell responded directly to Justice Chase’s approach and rejected it. Justice Iredell maintained that the only legitimate form of judicial review is interpretation of the written text of the Constitution. He wrote: ‘‘If . . . the legislature of the union, or the legislature of any member of the union, shall pass a law, within the general scope of their constitutional power, the court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard; the ablest and the purest men have differed upon the subject.’’

The Chase-Iredell exchange about how to interpret the Constitution has been characterized by scholars as ‘‘the opening salvo in a running battle that has never simmered down completely.’’ The specific rule of the case remains good law: the ex post facto clause applies only in the criminal context. One member of the current Court—Clarence Thomas—believes that the clause also applies in the civil context. Consequently, he has suggested that Calder v. Bull be overruled: despite the fact that the decision has stood as precedent for 200-plus years.

Before Justice Thomas’s concurring opinion in Eastern Enterprises v. Apfel (1998), no member of the Supreme Court had called Calder into question since William Johnson in the 1829 case of Satterlee v. Matthewson. Justice Johnson wrote for himself alone in Satterlee, as he did when he first called Calder into question in Ogden v. Saunders (1827), and Justice Thomas wrote only for himself in Apfel. The future of Calder seems secure.

SCOTT D. GERBER

Cases and Statutes Cited

• Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) 
• Satterlee v. Matthewson, 27 U.S. (2 Pet.) 380 (1829)