Cite as: 539 U. S. 607 (2003)
Kennedy, J., dissenting
attempts to eliminate this redundancy by limiting its definition to instances where the conduct was criminal, yet if Justice Chase's alternative description of the second category is supposed to be definitive of its scope, ante, at 611, it would seem to strike broader than the Court's limiting construction. Similarly, a retroactive law increasing punishment in violation of the third category would also constitute an "innovation" for which, prior to the passage of the new law, the offender was not liable, ante, at 612, and so be prohibited under the Court's unbounded interpretation of category two. The Court's new definition not only distorts the original meaning of the second Calder category, but also threatens the coherence of the overall ex post facto scheme.
Realizing the inconsistency, the majority scarcely refers to the authoritative language Justice Chase used to describe the second category. Instead, the Court relies on what it terms Justice Chase's alternative description of that category, which speaks about laws which " 'inflict[ed] punishments, where the party was not, by law, liable to any punishment.' " Ante, at 612 (emphasis deleted) (quoting Calder, 3 Dall., at 389). These words are not, strictly speaking, a description of the second category itself; they are a description of the category's historical origins. Justice Chase used them to refer to certain laws passed by the British Parliament which led the Founders to adopt the Ex Post Facto Clause; he did not intend them as a definitive description of the laws prohibited by that constitutional provision. Ibid. This description of a category's origins may, of course, shed light on the meaning of Justice Chase's principal formulation, which was meant to be definitive. The Court, however, uses Chase's alternative description as the independent operative definition of that category. None of our precedents, until today, based their holding on the language of Justice Chase's alternative description, certainly not in situations when the statute under review would not fit within the principal formulation.
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