636
Kennedy, J., dissenting
today has endorsed. The Moore court was no exception. When it held that the state statute was "not covered by any of [Justice Chase's] classes," Moore made clear it was looking beyond the language of the Calder categories: "Judge Chase did not consider his classes as exhaustive," and so "a statute substantially imposing punishment for a previous act which, without the statute, would not be so punishable, is an ex post facto law, although it may not be included in the letter of Judge Chase's rules." 43 N. J. L., at 216, 220. The point was further emphasized by the separate opinion of Chancellor Runyon, a member of the one-judge Moore majority that invalidated the law as ex post facto: "[W]here the enactment, in whatever guise legislative ingenuity or subtlety may present it, inflicts the substantial injury, and does the essential wrong which the constitution sought to guard against, a true interpretation will hold it to be within the prohibition." Id., at 226. The references to "substantia[l] imposi[tion of] punishment" and "substantial injury" are reminiscent of the references to "substantial protections" and "substantial personal rights" used to enlarge the scope of the Ex Post Facto Clause and disapproved of in Collins. 497 U. S., at 46. By endorsing Moore, the majority seeks to resurrect this rejected reasoning here.
The other precedents the Court invokes—both the cases where extension of expired statutes of limitations was at issue and the cases which merely opined on the question in dicta—have the same flaw. The misconception causing it arises from Judge Learned Hand's dictum, mentioned while holding that an extension of an unexpired statute of limitations is not ex post facto, that if the statute had expired there would be a violation. Falter v. United States, 23 F. 2d 420, 425 (CA2 1928). Judge Hand based this distinction on a citation of the faulty decision in Moore and on his belief that whether an extension of a limitations period is ex post facto "turns upon how much violence is done to our instinctive feelings of justice and fair play." Falter, supra, at 425-426.
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