Stogner v. California, 539 U.S. 607, 20 (2003)

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Opinion of the Court

Fifth, the dissent's historical account raises problems of pertinence. For one thing, to the extent that we are construing the scope of the Calder categories, we are trying not to investigate precisely what happened during the trials of Clarendon and Atterbury, but to determine how, several decades later, an 18th-century legal commentator and an 18th-century American judge who relied on that commentator—and, by extension, the Framers themselves—likely understood the scope of the words "ex post facto." Hence, the dissent's account seems of little relevance once we recognize that:

(1) When Justice Chase set forth his alternative language for the second category (the language that the historical examples are meant to illuminate), he said nothing about recharacterizing crimes, Calder, 3 Dall., at 389; (2) When Chase speaks of laws "declaring acts to be treason, which were not treason, when committed," ibid., he uses this language for his alternative description of first category laws, and not second category laws, supra, at 612; and (3) Wooddeson says nothing about recharacterizing crimes and instead uses the Clarendon and Atterbury examples to illustrate laws that "principally affect the punishment, making therein some innovation, or creating some forfeiture or disability, not incurred in the ordinary course of law," 2 Systematical View 638 (some emphasis added).

Of course, we do not know whether Chase and Wooddeson, in using such language, had statutes of limitations specifically in mind. We know only that their descriptions of ex post facto laws and the relevant historical examples indicate an ex post facto category broad enough to include retroactive changes in, and applications of, those statutes. And we

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