Stogner v. California, 539 U.S. 607, 15 (2003)

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Cite as: 539 U. S. 607 (2003)

Opinion of the Court

a long line of authority holding that a law of this type violates the Ex Post Facto Clause.


In a prodigious display of legal and historical textual research, the dissent finely parses cases that offer us support, see post, at 633-637; shows appreciation for 19th-century dissident commentary, see post, at 638-639; discusses in depth its understanding of late 17th-century and early 18th-century parliamentary history, post, at 642-649; and does its best to drive a linguistic wedge between Justice Chase's alternative descriptions of categories of ex post facto laws, post, at 640- 641. All to what end? The dissent undertakes this Herculean effort to prove that it is not unfair, in any constitutionally relevant sense, to prosecute a man for crimes committed 25 to 42 years earlier when nearly a generation has passed since the law granted him an effective amnesty. Cf. post, at 649-653.

We disagree strongly with the dissent's ultimate conclusion about the fairness of resurrecting a long-dead prosecution. See infra, at 630-632. Rather, like Judge Learned Hand, we believe that this retroactive application of a later-enacted law is unfair. And, like most other judges who have addressed this issue, see supra, at 617-618, we find the words "ex post facto" applicable to describe this kind of unfairness. Indeed, given the close fit between laws that work this kind of unfairness and the Constitution's concern with ex post facto laws, we might well conclude that California's law falls within the scope of the Constitution's interdiction even were the dissent's historical and precedent-related criticisms better founded than they are.

We need not examine that possibility here, however, because the dissent's reading of the relevant history and precedent raises far too many problems to serve as a foundation for the reading of "ex post facto" that it proposes. In our view, that reading is too narrow; it is unsupported by prec-


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