536
Opinion of the Court
States' argument would run up against a more troubling obstacle, namely, that neither Blackstone nor the state constitutions mention Calder's third category either (increases in punishment). The United States, in effect, asks us to abandon two of Calder's categories based on the unsupported supposition that the Blackstonian and state constitutional definitions were exclusive, and upon the implicit premise that neither Wooddeson, Chase, Story, Kent, nor subsequent courts (state and federal) realized that was so. We think that simply stating the nature of the request demonstrates why it must be rejected.26
Next, the United States contends Justice Chase was mistaken to cite the case of Sir John Fenwick as an example of an ex post facto law, because it was actually a bill of attainder. Fenwick was indeed convicted by a bill of attainder, but it does not follow that his case cannot also be an example of an ex post facto law. Clearly, Wooddeson thought it was, see 2 Wooddeson 641, as did the House of Commons, see n. 19, supra, and we are aware of no rule stating that a single historical event can explain one, but not two, constitutional Clauses (actually, three Clauses, see Art. III, § 3 (Treason Clause)). We think the United States' observation simply underscores the kinship between bills of attainder and ex post facto laws, see Nixon v. Administrator of General Services, 433 U. S. 425, 468, n. 30 (1977); United States v. Lovett, 328 U. S. 303, 323 (1946) (Frankfurter, J., concurring); see also Z. Chafee, Three Human Rights in the Constitution of 1787, pp. 92-93 (1956) (herein-26 Nor does it help much to cite Justice Iredell's statement that ex post facto laws include those that "inflict a punishment for any act, which was innocent at the time it was committed; [or] increase the degree of punishment previously denounced for any specific offence," Calder v. Bull, 3 Dall. 386, 400 (1798). The argument still requires us to believe that Justice Iredell—and only Justice Iredell—got it right, and that all other authorities (now including Blackstone and the state constitutions) somehow missed the point.
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