Stogner v. California, 539 U.S. 607, 16 (2003)

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Opinion of the Court

edent; and it would deny liberty where the Constitution gives protection.


In the dissent's view, Chase's historical examples show that "Calder's second category concerns only laws" that both (1) "subjec[t] the offender to increased punishment" and (2) do so by "chang[ing] the nature of an offense to make it greater than it was at the time of commission." Post, at 642 (emphasis added). The dissent does not explain what it means by "chang[ing] the nature of an offense," but we must assume (from the fact that this language comes in a dissent) that it means something beyond attaching otherwise unavailable punishment and requires, in addition, some form of re-characterization of the crime. After all, the dissent seeks to show through its discussion of the relevant historical examples that a new law subjecting to punishment a person not then legally subject to punishment does not fall within the second category unless the new law somehow changes the kind of crime that was previously at issue.

The dissent's discussion of the historical examples suffers from several problems. First, it raises problems of historical accuracy. In order to show the occurrence of a change in the kind or nature of the crime, the dissent argues that Parliament's effort to banish the Earl of Clarendon amounted to an effort "to elevate criminal behavior of lower magnitude to the level of treason." Post, at 643. The dissent supports this argument with a claim that "the allegations [against Clarendon] could not support a charge of treason." Ibid. Historians, however, appear to have taken a different view. But cf. post, at 646. In their view, at least one charge against Clarendon did amount to treason.

Clarendon was charged with "betraying his majesty's secret counsels to his enemies during the war." Edward Earl of Clarendon's Trial, 6 How. St. Tr. 292, 350 (1667) (herein-after Clarendon's Trial). In the words of one historian, this charge "undoubtedly contained treasonous matter."

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