Calder v. Bull

Calder v. Bull, 3 Dall. (3 U.S.) 386 (1798), argued 8 and 13 Feb. 1798, decided 8 Aug. 1798 by vote of 4 to 0; seriatim opinions by Chase, Paterson, Iredell, and Cushing, Ellsworth and Wilson not participating. Calder v. Bull was one of the Supreme Court's first decisions involving constitutional limitations on governmental power. The Connecticut legislature enacted a resolution granting a new hearing in a probate trial. The Calders, disappointed heirs, challenged this action as a violation of the ban in Article I, section 10, on ex post facto laws. Justices William Paterson, James Iredell, and William Cushing accepted the legislature's action because before Independence the legislature had functioned as the state's highest appellate court and was thus merely continuing to act in that capacity (Connecticut had not yet adopted a new constitution).

Assuming that the legislature's resolution was a “law” within the meaning of the Ex Post Facto Clause, Justices Samuel Chase, Paterson, and Iredell agreed that the clause was addressed only to laws imposing retroactive punishment (by creating criminal sanctions for actions that were legal when carried out or increasing the punishment set for a particular offense and applied retrospectively) and thus was inapplicable in civil disputes. Chase and Paterson, in addition, rested their rejection of the Calders' argument on the grounds of textual interpretation. Citing such sources as Blackstone, The Federalist, and the constitutions of other states, they concluded that the expression “ex post facto” was a technical legal term that, long before the Revolution, had come to apply only to laws imposing or increasing criminal punishment, and the Constitution's makers must have “understood and used the words in their known and appropriate signification” (p. 397). Both justices buttressed this reading of the clause by noting its close proximity to provisions such as the impairment of Contracts Clause that would be redundant if “ex post facto” were extended to cover civil legislation.

Alone among the justices, Chase raised and then rejected another possible ground for invalidating the Connecticut resolution: its incompatibility with “the very nature of our free Republican governments” (p. 388). In a long and rambling paragraph Chase denied “the omnipotence of a state Legislature” even in the absence of express constitutional limits on its power. Using language reminiscent of Locke, Chase insisted that “the great first principles of the social compact” determined what actions of a legislature could be regarded as “a rightful exercise of legislative authority” (pp. 387–388). He went on to list a number of actions that could not be deemed legitimate regardless of the absence of any express constitutional prohibition; among them were ex post facto laws in the technical, criminal sense and “a law that takes property from A and gives it to B” (p. 388). Chase avoided applying these fundamental principles in Calder v. Bull itself, if indeed he even meant to suggest that judges were entitled to enforce them against the legislature, on the ground that whatever rights the losing heirs might have had to the property had not yet vested when the legislature acted and thus were still subject to interference by law.

Iredell appears to have interpreted Chase's opinion to assert a power in courts to pronounce a statute “void, merely because it is, in [the judges'] judgment, contrary to the principles of natural justice” (p. 399). Observing that persons of intelligence and good will disagree about the dictates of natural justice, Iredell denied that judicial invalidation of a statute on such a basis could express anything but a difference of opinion, and he expressly limited the exercise of judicial review to the enforcement of express limitations on legislative power.

The subsequent career of Calder v. Bull has been controversial. Early nineteenth‐century critics attacked its limitation of the Ex Post Facto Clause to criminal statutes. Justice William Johnson appended a long note to the report of an 1829 case, Satterlee v. Mathewson, arguing with considerable force that Calder's actual holding rested on the characterization of the Connecticut legislature's action as judicial rather than legislative in nature, and criticizing the Calder justices' use of legal authority. In the modern era, the case has been the subject of widely varying interpretations. Some scholars maintain that Calder is direct evidence of an “original understanding” that courts would enforce unwritten fundamental‐law limitations on governmental power, while others insist that the case reflected the transition from the Revolutionary era's political rhetoric of social compact and natural rights to the text‐bound interpretivism of the later Marshall Court. Whatever they may have meant originally by their remarks, Chase's invocation of constitutional principles transcending the constitutional text and Iredell's insistence on the textual nature of judicial review continue to play a role in the debate over the legitimacy of the Supreme Court's jurisprudence.

See also Ex Post Facto Laws; Higher Law; Judicial Review; Natural Law.

Bibliography

Suzanna Sherry , The Founders' Unwritten Constitution, University of Chicago Law Review 54 (1987): 1127–1177.

H. Jefferson Powell