Georgetown Center for the Constitution

Arguing that the Ex Post Facto Clause was “widely understood at the founding to extend to retroactive civil laws” and raising questions about the reliability of Madison’s notes from the Constitutional Convention.

Evan C. Zoldan, The Civil Ex Post Facto Clause, 2015 Wis. L. Rev. 727 (2015).

Concluding that the Ex Post Facto Clause was originally understood to encompass civil, as well as criminal, laws.

Maeva Marcus, The Effect (or Non-Effect) of Founders on the Supreme Court Bench, 80 Geo. Wash. L. Rev. 1794 (2012).

Reviewing early debates about the Ex Post Facto Clause, specifically debates among the members of the Supreme Court who were also involved in drafting the Constitution.

Nicholas Quinn Rosenkranz, The Objects of the Constitution, 63 Stan. L. Rev. 1005 (2011).

Wayne A. Logan, “Democratic Despotism” and Constitutional Constraint: An Empirical Analysis of Ex Post Facto Claims in State Courts, 12 Wm. & Mary Bill Rts. J. 439 (2004).

Arguing that the Framers passed the Ex Post Facto Clause to protect against political forces that motivated state legislatures to adopt retroactive criminal laws.

Robert G. Natelson, Statutory Retroactivity: The Founders’ View, 39 Idaho L. Rev. 489 (2003).

Arguing that the original understanding of the Ex Post Facto Clause proscribed retroactive criminal laws only.

Caleb Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519 (2003).

Arguing that the clause was originally ambiguous about whether it applied to all laws or only to criminal penalties, but later court decisions fixed the meaning and that precedent should be respected.

Akhil Reed Amar, Foreword: The Document and the Doctrine, 114 Harv. L. Rev. 26 (2000).

Arguing that the ex post facto laws were generally understood as laws that retroactively criminalized conduct that was innocent at the time the act was committed and that such laws were condemned as contrary to first principles.

Note, Andrew J. Gottman, Fair Notice, Even for Terrorists: Timothy Mcveigh and a New Standard for the Ex Post Facto Clause, 56 Wash. & Lee L. Rev. 591 (1999).

Arguing that the Framers likely intended the Ex Post Facto Clauses to protect property rights in addition to protecting against retroactive criminal punishment.

Laura Ricciardi & Michael B.W. Sinclair, Retroactive Civil Legislation, 27 U. Tol. L. Rev. 301 (1996).

Arguing that the Ex Post Facto Clause was not intended to be limited to criminal legislation but that the Court does not extend the same protections to civil legislation.

Thomas B. McAffee, Prolegomena to A Meaningful Debate of the “Unwritten Constitution” Thesis, 61 U. Cin. L. Rev. 107 (1992).

Refuting Suzanna Sherry’s contention that a prohibition against ex post facto laws was inherent in natural rights and, therefore, not needed by looking to the history of the debate surrounding the Virginia Declaration of Rights in 1776.

Douglas W. Kmiec & John O. McGinnis, The Contract Clause: A Return to the Original Understanding, 14 Hastings Const. L.Q. 525 (1987).

Suzanna Sherry, The Founders’ Unwritten Constitution, 54 U. Chi. L. Rev. 1127 (1987).

Explaining that most delegates believed it was unnecessary to include the Ex Post Facto Clause in the Constitution because such laws so obviously violate natural law.

William Crosskey, The True Meaning of the Constitutional Prohibition of Ex Post Facto Laws, 14 U. Chi. L. Rev. 539 (1946).

Reviewing Founding Era history to show how recent abuses of ex post facto laws informed the debate about the Ex Post Facto Clause at the Constitutional Convention and meant the original meaning of the clause was not limited to just criminal laws.