Cite as: 532 U. S. 451 (2001)
Scalia, J., dissenting
non, reflecting a profound change in sensibility. For the in-articulate premise that lay behind Swift's warnings against the danger of judicial discretion was a growing perception that judges no longer merely discovered law; they also made it." 1 Horwitz 14-15 (emphases added). In other words, the connection between ex post facto lawmaking and common-law judging would not have become widely apparent until common-law judging became lawmaking, not (as it had been) law declaring. This did not happen, see id., at 1-4, until the 19th century, after the framing.
What occurred in the present case, then, is precisely what Blackstone said—and the Framers believed—would not suffice. The Tennessee Supreme Court made no pretense that the year-and-a-day rule was "bad" law from the outset; rather, it asserted, the need for the rule, as a means of assuring causality of the death, had disappeared with time. Blackstone—and the Framers who were formed by Black-stone—would clearly have regarded that change in law as a matter for the legislature, beyond the power of the court. It may well be that some common-law decisions of the era in fact changed the law while purporting not to. But that is beside the point. What is important here is that it was an undoubted point of principle, at the time the Due Process Clause was adopted, that courts could not "change" the law. That explains why the Constitution restricted only the legislature from enacting ex post facto laws. Under accepted norms of judicial process, an ex post facto law (in the sense of a judicial holding, not that a prior decision was erroneous, but that the prior valid law is hereby retroactively changed) was simply not an option for the courts. This attitude subsisted, I may note, well beyond the founding era, and beyond the time when due process guarantees were extended against the States by the Fourteenth Amendment. In an 1886 admiralty case, for example, this Court said the following: "The rights of persons in this particular under the maritime law of this country are not different from those under
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