Related Citations
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John Mikhail, James Wilson, Early American Land Companies, and the Original Meaning of “Ex Post Facto Law,” 17 Geo. J.L. & Pub. Pol’y 79 (2019).
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.
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Evan C. Zoldan, The Civil Ex Post Facto Clause, 2015 Wis. L. Rev. 727 (2015).
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.
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Anthony Dick, The Substance of Punishment Under the Bill of Attainder Clause, 63 Stan. L. Rev. 1177 (2011).
Calling into question, on originalist grounds, a narrow reading of the Bill of Attainder Clause.
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Nicholas Quinn Rosenkranz, The Objects of the Constitution, 63 Stan. L. Rev. 1005 (2011).
Arguing that the Ex Post Facto Clause applies to state legislatures but also to state governments more broadly.
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Jacob Reynolds, The Rule of Law and the Origins of the Bill of Attainder Clause, 18 St. Thomas L. Rev. 177 (2005).
Theorizing that the Founders adopted the Bill of Attainder Clause because of their dedication to the rule of law.
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Robert G. Natelson, Statutory Retroactivity: The Founders’ View, 39 Idaho L. Rev. 489 (2003).
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.
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Caleb Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519 (2003).
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.
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Akhil Reed Amar, Attainder and Amendment 2: Romer‘s Rightness, 95 Mich. L. Rev. 203 (1996).
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.
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Raoul Berger, Bills of Attainder: A Study of Amendment by the Court, 63 Cornell L. Rev. 355 (1978).
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.
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Charles H. Wilson, Jr., The Supreme Court’s Bill of Attainder Doctrine: A Need for Clarification, 54 Calif. L. Rev. 212 (1966).
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.