Stogner v. California, 539 U.S. 607, 32 (2003)

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638

STOGNER v. CALIFORNIA

Kennedy, J., dissenting

The majority turns for help to a roster of commentators who concluded that revival of expired statutes of limitations is precluded by the ex post facto guarantee. See ante, at 619-620. Some of the commentators applied the same expansive approach we have declared impermissible in Collins and Carmell. Henry Black, on whose work the Court relies the most, see ante, at 613, 615, 619, openly acknowledged that the revival of expired statutes of limitations is not covered by any of the Calder categories. See Constitutional Prohibitions Against Legislation Impairing the Obligation of Contracts, and Against Retroactive and Ex Post Facto Laws § 227, p. 291 (1887). Black, moreover, relied on the example of the civil statutes of limitations, which he believed could not be revived. Id., § 235, at 296-297. The Court's later case law has rendered this interpretation questionable. See, e. g., Chase Securities Corp. v. Donaldson, 325 U. S. 304, 314-316 (1945). Other commentators relied, often with no analysis, on the Moore and Falter line of cases, which were plagued by methodological infirmities since discovered. See authorities cited ante, at 619. None of these scholars explained their conclusion by reference to Calder's second category.

There are scholars who have considered with care the meaning of that category; and they reached the conclusion stated in this dissent, not the conclusion embraced by the majority. In his treatise on retroactive legislation, William Wade defined the category as covering the law "which undertakes to aggravate a past offence, and make it greater than when committed, endeavors to bring it under some description of transgression against which heavier penalties or more severe punishments have been denounced: as, changing the character of an act which, when committed, was a misdemeanor, to a crime; or, declaring a previously committed of-fence, of one of the classes graduated, and designated by the number of its degree, to be of a higher degree than it was when committed." Operation and Construction of Retroac-

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