478
Scalia, J., dissenting
the common law, and as it is the duty of courts to declare the law, not to make it, we cannot change this rule." The Harrisburg, 119 U. S. 199, 213-214 (1886), overruled by Moragne v. States Marine Lines, Inc., 398 U. S. 375 (1970).
It is not a matter, therefore, of "[e]xtending the [Ex Post Facto] Clause to courts through the rubric of due process," and thereby "circumvent[ing] the clear constitutional text," ante, at 460. It is simply a matter of determining what due judicial process consists of—and it does not consist of retroactive creation of crimes. The Ex Post Facto Clause is relevant only because it demonstrates beyond doubt that, however much the acknowledged and accepted role of common-law courts could evolve (as it has) in other respects, retroactive revision of the criminal law was regarded as so fundamentally unfair that an alteration of the judicial role which permits that will be a denial of due process. Madison wrote that "ex-post-facto laws . . . are contrary to the first principles of the social compact, and to every principle of social legislation." The Federalist No. 44, p. 282 (C. Rossiter ed. 1961). I find it impossible to believe, as the Court does, that this strong sentiment attached only to retroactive laws passed by the legislature, and would not apply equally (or indeed with even greater force) to a court's production of the same result through disregard of the traditional limits upon judicial power. Insofar as the "first principles of the social compact" are concerned, what possible difference does it make that "[a] court's opportunity for discrimination" by retroactively changing a law "is more limited than a legislature's, in that it can only act in construing existing law in actual litigation"? Ante, at 460-461 (internal quotation marks and citation omitted). The injustice to the individuals affected is no less.
II
Even if I agreed with the Court that the Due Process Clause is violated only when there is lack of "fair warning" of the impending retroactive change, I would not find such fair warning here. It is not clear to me, in fact, what the
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