568
Ginsburg, J., dissenting
facto laws without mentioning Chase's fourth category at all. Id., at 169-170. And in Collins the Court cited with apparent approval Beazell's omission of the fourth category, 497 U. S., at 43, n. 3, declaring that "[t]he Beazell formulation is faithful to our best knowledge of the original understanding of the Ex Post Facto Clause: Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts." Id., at 43. Collins concluded by reciting in the plainest terms the prohibitions laid down by the Ex Post Facto Clause: A statute may not "punish as a crime an act previously committed, which was innocent when done; nor make more burdensome the punishment for a crime, after its commission; nor deprive one charged with crime of any defense available according to law at the time when the act was committed." Id., at 52. This recitation conforms to Calder's first three categories, but not the fourth; changes in evidentiary rules are nowhere mentioned.12
The majority asserts that the Court has repeatedly endorsed Justice Chase's formulation, "including, in particular, the fourth category," and it offers an impressive-looking string citation in support of the claim. Ante, at 525. Yet all of those cases simply quoted or paraphrased Chase's enumeration, a mechanical task that naturally entailed a recitation of the fourth category. Not one of them depended on that category for the judgment the Court reached.13 Nei-12 In California Dept. of Corrections v. Morales, 514 U. S. 499, 504-505 (1995), the Court similarly enumerated the categories of ex post facto laws without mentioning the fourth category.
13 The Court in Cummings v. Missouri, 4 Wall. 277 (1867), invoked the fourth category, see id., at 328, but that invocation was hardly necessary to the Court's holding. In Cummings, as already noted, the Court invalidated on Bill of Attainder Clause and Ex Post Facto Clause grounds state constitutional amendments that imposed punishment on persons unable to swear an oath that they had not taken up arms against the Union in the Civil War. The Court recognized that the challenged amendments, though framed in terms of a method of proof, were "aimed at past acts,
Page: Index Previous 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 NextLast modified: October 4, 2007