539 U.S. 607 (2003)

STOGNER
v.
CALIFORNIA

No. 01-1757.

Supreme Court of United States.

Argued March 31, 2003. Decided June 26, 2003. CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, FIRST APPELLATE DISTRICT

*608 BREYER, J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, SOUTER, and GINSBURG, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA and THOMAS, JJ., joined, post, p. 633.

Roberto Nájera argued the cause for petitioner. With him on the briefs was Elisa Stewart.

Janet Gaard, Special Assistant Attorney General of California, argued the cause for respondent. With her on the brief were Bill Lockyer, Attorney General, Manuel M. Medeiros, Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, W. Scott Thorpe, Special Assistant Attorney General, and Kelly E. Lebel, Deputy Attorney General.

Irving L. Gornstein argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Olson, Assistant Attorney General Chertoff, Deputy Solicitor General Dreeben, and John F. De Pue.^[*]

*609 JUSTICE BREYER delivered the opinion of the Court.

California has brought a criminal prosecution after expiration of the time periods set forth in previously applicable statutes of limitations. California has done so under the authority of a new law that (1) permits resurrection of otherwise time-barred criminal prosecutions, and (2) was itself enacted after pre-existing limitations periods had expired. We conclude that the Constitution's Ex Post Facto Clause, Art. I, § 10, cl. 1, bars application of this new law to the present case.

I

In 1993, California enacted a new criminal statute of limitations governing sex-related child abuse crimes. The new statute permits prosecution for those crimes where "[t]he limitation period specified in [prior statutes of limitations] has expired"—provided that (1) a victim has reported an allegation of abuse to the police, (2) "there is independent evidence that clearly and convincingly corroborates the victim's allegation," and (3) the prosecution is begun within one year of the victim's report. 1993 Cal. Stats. ch. 390, § 1 (codified as amended at Cal. Penal Code Ann. § 803(g) (West Supp. 2003)). A related provision, added to the statute in 1996, makes clear that a prosecution satisfying these three conditions "shall revive any cause of action barred by [prior statutes of limitations]." 1996 Cal. Stats. ch. 130, § 1 (codified at Cal. Penal Code Ann. § 803(g)(3)(A) (West Supp. 2003)). The statute thus authorizes prosecution for criminal acts committed many years beforehand—and where the original limitations period has expired—as long as prosecution begins within a year of a victim's first complaint to the police.

In 1998, a California grand jury indicted Marion Stogner, the petitioner, charging him with sex-related child abuse committed decades earlier—between 1955 and 1973. Without *610 the new statute allowing revival of the State's cause of action, California could not have prosecuted Stogner. The statute of limitations governing prosecutions at the time the crimes were allegedly committed had set forth a 3-year limitations period. And that period had run 22 years or more before the present prosecution was brought.

Stogner moved for the complaint's dismissal. He argued that the Federal Constitution's Ex Post Facto Clause, Art. I, § 10, cl. 1, forbids revival of a previously time-barred prosecution. The trial court agreed that such a revival is unconstitutional. But the California Court of Appeal reversed, citing a recent, contrary decision by the California Supreme Court, People v. Frazer, 21 Cal. 4th 737, 982 P. 2d 180 (1999), cert. denied, 529 U. S. 1108 (2000). Stogner then moved to dismiss his indictment, arguing that his prosecution is unconstitutional under both the Ex Post Facto Clause and the Due Process Clause, Amdt. 14, § 1. The trial court denied Stogner's motion, and the Court of Appeal upheld that denial. Stogner v. Superior Court, 93 Cal. App. 4th 1229, 114 Cal. Rptr. 2d 37 (2001). We granted certiorari to consider Stogner's constitutional claims. 537 U. S. 1043 (2002).

II

The Constitution's two Ex Post Facto Clauses prohibit the Federal Government and the States from enacting laws with certain retroactive effects. See Art. I, § 9, cl. 3 (Federal Government); Art. I, § 10, cl. 1 (States). The law at issue here created a new criminal limitations period that extends the time in which prosecution is allowed. It authorized criminal prosecutions that the passage of time had previously barred. Moreover, it was enacted after prior limitations periods for Stogner's alleged offenses had expired. Do these features of the law, taken together, produce the kind of retroactivity that the Constitution forbids? We conclude that they do.

*611 First, the new statute threatens the kinds of harm that, in this Court's view, the Ex Post Facto Clause seeks to avoid. Long ago Justice Chase pointed out that the Clause protects liberty by preventing governments from enacting statutes with "manifestly unjust and oppressive" retroactive effects. Calder v. Bull, 3 Dall. 386, 391 (1798). Judge Learned Hand later wrote that extending a limitations period after the State has assured "a man that he has become safe from its pursuit . . . seems to most of us unfair and dishonest." Falter v. United States, 23 F. 2d 420, 426 (CA2), cert. denied, 277 U. S. 590 (1928). In such a case, the government has refused "to play by its own rules," Carmell v. Texas, 529 U. S. 513, 533 (2000). It has deprived the defendant of the "fair warning," Weaver v. Graham, 450 U. S. 24, 28 (1981), that might have led him to preserve exculpatory evidence. F. Wharton, Criminal Pleading and Practice § 316, p. 210 (8th ed. 1880) ("The statute [of limitations] is. .. an amnesty, declaring that after a certain time . . . the offender shall be at liberty to return to his country... and. . . may cease to preserve the proofs of his innocence"). And a Constitution that permits such an extension, by allowing legislatures to pick and choose when to act retroactively, risks both "arbitrary and potentially vindictive legislation," and erosion of the separation of powers, Weaver, supra, at 29, and n. 10. See Fletcher v. Peck, 6 Cranch 87, 137-138 (1810) (viewing the Ex Post Facto Clause as a protection against "violent acts which might grow out of the feelings of the moment").

Second, the kind of statute at issue falls literally within the categorical descriptions of ex post facto laws set forth by Justice Chase more than 200 years ago in Calder v. Bull, supra—a categorization that this Court has recognized as providing an authoritative account of the scope of the Ex Post Facto Clause. Collins v. Youngblood, 497 U. S. 37, 46 (1990); Carmell, supra, at 539. Drawing substantially on Richard Wooddeson's 18th-century commentary on the nature of ex post facto laws and past parliamentary abuses, *612 Chase divided ex post facto laws into categories that he described in two alternative ways. See 529 U. S., at 522-524, and n. 9. He wrote:

"I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive." Calder, supra, at 390-391 (emphasis altered from original).

In his alternative description, Chase traced these four categories back to Parliament's earlier abusive acts, as follows:

Category 1: "Sometimes they respected the crime, by declaring acts to be treason, which were not treason, when committed."

Category 2: "[A]t other times they inflicted punishments, where the party was not, by law, liable to any punishment."

Category 3: "[I]n other cases, they inflicted greater punishment, than the law annexed to the offence."

Category 4: "[A]t other times, they violated the rules of evidence (to supply a deficiency of legal proof) by admitting one witness, when the existing law required two; by receiving evidence without oath; or the oath of the wife against the husband; or other testimony, which the courts of justice would not admit." 3 Dall., at 389 (emphasis altered from original).

*613 The second category—including any "law that aggravates a crime, or makes it greater than it was, when committed," id., at 390—describes California's statute as long as those words are understood as Justice Chase understood them— i. e., as referring to a statute that "inflict[s] punishments, where the party was not, by law, liable to any punishment," id., at 389. See also 2 R. Wooddeson, A Systematical View of the Laws of England 638 (1792) (hereinafter Wooddeson, Systematical View) (discussing the ex post facto status of a law that affects punishment by "making therein some innovation, or creating some forfeiture or disability, not incurred in the ordinary course of law" (emphasis added)). After (but not before) the original statute of limitations had expired, a party such as Stogner was not "liable to any punishment." California's new statute therefore "aggravated" Stogner's alleged crime, or made it "greater than it was, when committed," in the sense that, and to the extent that, it "inflicted punishment" for past criminal conduct that (when the new law was enacted) did not trigger any such liability. See also H. Black, American Constitutional Law § 266, p. 700 (4th ed. 1927) (hereinafter Black, American Constitutional Law) ("[A]n act condoned by the expiration of the statute of limitations is no longer a punishable offense"). It is consequently not surprising that New Jersey's highest court long ago recognized that Chase's alternative description of second category laws "exactly describes the operation" of the kind of statute at issue here. Moore v. State, 43 N. J. L. 203, 217 (1881) (emphasis added). See also H. Black, Constitutional Prohibitions Against Legislation Impairing the Obligation of Contracts, and Against Retroactive and Ex Post Facto Laws § 235, p. 298 (1887) (hereinafter Black, Constitutional Prohibitions) ("Such a statute" "certainly makes that a punishable offense which was previously a condoned and obliterated offense").

So to understand the second category (as applying where a new law inflicts a punishment upon a person not then subject *614 to that punishment, to any degree) explains why and how that category differs from both the first category (making criminal noncriminal behavior) and the third category (aggravating the punishment). And this understanding is consistent, in relevant part, with Chase's second category examples —examples specifically provided to illustrate Chase's alternative description of laws "`inflict[ing] punishments, where the party was not, by law, liable to any punishment,'" Calder, 3 Dall., at 389.

Following Wooddeson, Chase cited as examples of such laws Acts of Parliament that banished certain individuals accused of treason. Id., at 389, and n.‡; see also Carmell, 529 U. S., at 522-524, and n. 11. Both Chase and Wooddeson explicitly referred to these laws as involving "banishment." Calder, supra, at 389, and n. ‡; 2 Wooddeson, Systematical View 638-639. This fact was significant because Parliament had enacted those laws not only after the crime's commission, but under circumstances where banishment "was simply not a form of penalty that could be imposed by the courts." Carmell, supra, at 523, n. 11; see also 11 W. Holdsworth, A History of English Law 569 (1938). Thus, these laws, like the California law at issue here, enabled punishment where it was not otherwise available "in the ordinary course of law," 2 Wooddeson, Systematical View 638. As this Court previously recognized in Carmell, supra, at 523, and n. 11, it was this vice that was relevant to Chase's purpose.

It is true, however, that Parliament's Acts of banishment, unlike the law in this case, involved a punishment (1) that the legislature imposed directly, and (2) that courts had never previously had the power to impose. But these differences are not determinative. The first describes not a retroactivity problem but an attainder problem that Justice Chase's language does not emphasize and with which the Constitution separately deals, Art. I, § 9, cl. 3; Art. I, § 10, cl. 1. The second difference seems beside the point. The example of *615 Parliament's banishment laws points to concern that a legislature, knowing the accused and seeking to have the accused punished for a pre-existing crime, might enable punishment of the accused in ways that existing law forbids. That fundamental concern, related to basic concerns about retroactive penal laws and erosion of the separation of powers, applies with equal force to punishment like that enabled by California's law as applied to Stogner—punishment that courts lacked the power to impose at the time the legislature acted. See Black, Constitutional Prohibitions § 235, at 298 ("It would be superfluous to point out that such an act [reviving otherwise time-barred criminal liability] would fall within the evils intended to be guarded against by the prohibition in question"). Cf. 1 F. Wharton, Criminal Law § 444a, pp. 347-348, n. b (rev. 7th ed. 1874) (hereinafter Criminal Law).

In finding that California's law falls within the literal terms of Justice Chase's second category, we do not deny that it may fall within another category as well. Justice Chase's fourth category, for example, includes any "law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender." Calder, supra, at 390. This Court has described that category as including laws that diminish "the quantum of evidence required to convict." Carmell, supra, at 532.

Significantly, a statute of limitations reflects a legislative judgment that, after a certain time, no quantum of evidence is sufficient to convict. See United States v. Marion, 404 U. S. 307, 322 (1971). And that judgment typically rests, in large part, upon evidentiary concerns—for example, concern that the passage of time has eroded memories or made witnesses or other evidence unavailable. United States v. Kubrick, 444 U. S. 111, 117 (1979); 4 W. LaFave, J. Israel, & N. King, Criminal Procedure § 18.5(a), p. 718 (1999); Wharton, Criminal Pleading and Practice § 316, at 210. Indeed, this *616 Court once described statutes of limitations as creating "a presumption which renders proof unnecessary." Wood v. Carpenter, 101 U. S. 135, 139 (1879).

Consequently, to resurrect a prosecution after the relevant statute of limitations has expired is to eliminate a currently existing conclusive presumption forbidding prosecution, and thereby to permit conviction on a quantum of evidence where that quantum, at the time the new law is enacted, would have been legally insufficient. And, in that sense, the new law would "violate" previous evidence-related legal rules by authorizing the courts to "`receiv[e] evidence . . . which the courts of justice would not [previously have] admit[ted]'" as sufficient proof of a crime, supra, at 612. Cf. Collins, 497 U. S., at 46 ("Subtle ex post facto violations are no more permissible than overt ones"); Cummings v. Missouri, 4 Wall. 277, 329 (1867) (The Ex Post Facto Clause "cannot be evaded by the form in which the power of the State is exerted"). Nonetheless, given Justice Chase's description of the second category, we need not explore the fourth category, or other categories, further.

Third, likely for the reasons just stated, numerous legislators, courts, and commentators have long believed it well settled that the Ex Post Facto Clause forbids resurrection of a time-barred prosecution. Such sentiments appear already to have been widespread when the Reconstruction Congress of 1867—the Congress that drafted the Fourteenth Amendment —rejected a bill that would have revived time-barred prosecutions for treason that various Congressmen wanted brought against Jefferson Davis and "his coconspirators," Cong. Globe, 39th Cong., 2d Sess., 279 (1866-1867) (comments of Rep. Lawrence). Radical Republicans such as Roscoe Conkling and Thaddeus Stevens, no friends of the South, opposed the bill because, in their minds, it proposed an "ex post facto law," id., at 68 (comments of Rep. Conkling), and threatened an injustice tantamount to "judicial murder," id., at 69 (comments of Rep. Stevens). In this instance, Congress *617 ultimately passed a law extending unexpired limitations periods, ch. 236, 15 Stat. 183—a tailored approach to extending limitations periods that has also been taken in modern statutes, e. g., 18 U. S. C. § 3293 (notes on effective date of 1990 amendment and effect of 1989 amendment); Cal. Penal Code Ann. § 805.5 (West Supp. 2003).

Further, Congressmen such as Conkling were not the only ones who believed that laws reviving time-barred prosecutions are ex post facto. That view was echoed in roughly contemporaneous opinions by State Supreme Courts. E. g., State v. Sneed, 25 Tex. Supp. 66, 67 (1860); Moore, 43 N. J. L., at 216-217. Cf. State v. Keith, 63 N. C. 140, 145 (1869) (A State's repeal of an amnesty was "substantially an ex post facto law"). Courts, with apparent unanimity until California's decision in Frazer, have continued to state such views, and, when necessary, so to hold. E. g., People ex rel. Reibman v. Warden, 242 App. Div. 282, 285, 275 N. Y. S. 59, 62 (1934); United States v. Fraidin, 63 F. Supp. 271, 276 (Md. 1945); People v. Shedd, 702 P. 2d 267, 268 (Colo. 1985) (en banc) (per curiam); State v. Hodgson, 108 Wash. 2d 662, 667-669, 740 P. 2d 848, 851-852 (1987) (en banc), cert. denied sub nom. Fied v. Washington, 485 U. S. 938 (1988); Commonwealth v. Rocheleau, 404 Mass. 129, 130-131, 533 N. E. 2d 1333, 1334 (1989); State v. Nunn, 244 Kan. 207, 218, 768 P. 2d 268, 277-278 (1989); State v. O'Neill, 118 Idaho 244, 247, 796 P. 2d 121, 124 (1990); State v. Hirsch, 245 Neb. 31, 39-40, 511 N. W. 2d 69, 76 (1994); State v. Schultzen, 522 N. W. 2d 833, 835 (Iowa 1994); State v. Comeau, 142 N. H. 84, 88, 697 A. 2d 497, 500 (1997) (citing State v. Hamel, 138 N. H. 392, 395-396, 643 A. 2d 953, 955-956 (1994)); Santiago v. Commonwealth, 428 Mass. 39, 42, 697 N. E. 2d 979, 981, cert. denied, 525 U. S. 1003 (1998). Cf. Thompson v. State, 54 Miss. 740, 743 (1877) (stating, without specifying further grounds, that a new law could not take away a vested statute-of-limitations defense); State v. Cookman, 127 Ore. App. 283, 289, 873 P. 2d 335, 338 (1994) (holding that a law resurrecting a time-barred criminal *618 case "violates the Due Process Clause"), aff'd on state-law grounds, 324 Ore. 19, 920 P. 2d 1086 (1996); Commonwealth v. Guimento, 341 Pa. Super. 95, 97-98, 491 A. 2d 166, 167-168 (1985) (enforcing a state ban on ex post facto laws apparently equivalent to the federal prohibition); People v. Chesebro, 185 Mich. App. 412, 416, 463 N. W. 2d 134, 135-136 (1990) (reciting "the general rule" that, "`where a complete defense has arisen under [a statute of limitations], it cannot be taken away by a subsequent repeal thereof'").

Even where courts have upheld extensions of unexpired statutes of limitations (extensions that our holding today does not affect, see supra, at 613), they have consistently distinguished situations where limitations periods have expired. Further, they have often done so by saying that extension of existing limitations periods is not ex post facto "provided," "so long as," "because," or "if" the prior limitations periods have not expired—a manner of speaking that suggests a presumption that revival of time-barred criminal cases is not allowed. E. g., United States v. Madia, 955 F. 2d 538, 540 (CA8 1992) ("`provided'"); United States v. Richardson, 512 F. 2d 105, 106 (CA3 1975) ("provided"); People v. Anderson, 53 Ill. 2d 437, 440, 292 N. E. 2d 364, 366 (1973) ("so long as"); United States v. Haug, 21 F. R. D. 22, 25 (ND Ohio 1957) ("so long as"), aff'd, 274 F. 2d 885 (CA6 1960), cert. denied, 365 U. S. 811 (1961); United States v. Kurzenknabe, 136 F. Supp. 17, 23 (NJ 1955) ("so long as"); State v. Duffy, 300 Mont. 381, 390, 6 P. 3d 453, 460 (2000) ("because"); State v. Davenport, 536 N. W. 2d 686, 688 (N. D. 1995) ("because"); Andrews v. State, 392 So. 2d 270, 271 (Fla. App. 1980) ("if"), review denied, 399 So. 2d 1145 (Fla. 1981). See, e. g., Shedd, supra, at 268 (citing Richardson, supra, and Andrews, supra, as directly supporting a conclusion that a law reviving time-barred offenses is ex post facto). Cf. Commonwealth v. Duffy, 96 Pa. 506, 514 (1881) ("[I]n any case where a right to acquittal has not been absolutely acquired by the completion of the period of limitation, that period *619 is subject to enlargement or repeal without being obnoxious to the constitutional prohibition against ex post facto laws").

Given the apparent unanimity of pre-Frazer case law, legal scholars have long had reason to believe this matter settled. As early as 1887, Henry Black reported that, although "not at all numerous," the "cases upon this point . . . unmistakably point to the conclusion that such an act would be ex post facto in the strict sense, and void." Constitutional Prohibitions § 235, at 297. Even earlier, in 1874, Francis Wharton supported this conclusion by emphasizing the historic role of statutes of limitations as "acts of grace or oblivion, and not of process," "extinguish[ing] all future prosecution" and making an offense unable to "be again called into existence at the caprice of the prince." 1 Criminal Law § 444a, at 347-348, n. b. More modern commentators—reporting on the same and subsequent cases—have come to the same conclusion. E. g., 21 Am. Jur. 2d, Criminal Law § 294, pp. 349-350 (1998 and Supp. 2002); 16A C. J. S., Constitutional Law § 420, p. 372 (1984 and Supp. 2002); 4 LaFave, Israel, & King, Criminal Procedure § 18.5(a), at 718, n. 6; 2 C. Antieau & W. Rich, Modern Constitutional Law § 38.11, p. 445 (2d ed. 1997); Adlestein, Conflict of the Criminal Statute of Limitations with Lesser Offenses at Trial, 37 Wm. & Mary L. Rev. 199, 246 (1995); C. Corman, Limitation of Actions § 1.6, p. 35 (1993 Supp.); Black, Statutes of Limitations and the Ex Post Facto Clauses, 26 Ky. L. J. 42 (1937); Black, American Constitutional Law § 266, at 700. Cf. H. Wood, Limitation of Actions § 13, p. 43 (3d ed. 1901) (The State "may be said" to be "estopped from prosecuting"). Likewise, with respect to the closely related case of a law repealing an amnesty—a case not distinguished by the dissent—William Wade concluded early on that "[s]uch an act would be as clearly in contravention of the inhibition of ex post facto laws as though it undertook to annex criminality to an act innocent when done." Operation and Construction of Retroactive Laws *620 § 286, p. 339 (1880). But cf. post, at 638-639 (KENNEDY, J., dissenting).

This Court itself has not previously spoken decisively on this matter. On the one hand, it has clearly stated that the Fifth Amendment's privilege against self-incrimination does not apply after the relevant limitations period has expired. Brown v. Walker, 161 U. S. 591, 597-598 (1896). And that rule may suggest that the expiration of a statute of limitations is irrevocable, for otherwise the passage of time would not have eliminated fear of prosecution.

On the other hand, in Stewart v. Kahn, 11 Wall. 493, 503-504 (1871), this Court upheld a statute, enacted during the Civil War, that retroactively tolled all civil and criminal limitations for periods during which the war had made service of process impossible or courts inaccessible. Stewart, however, involved a civil, not a criminal, limitations statute. Id., at 500-501. Significantly, in reviewing this civil case, the Court upheld the statute as an exercise of Congress' war powers, id., at 507, without explicit consideration of any potential collision with the Ex Post Facto Clause. Moreover, the Court already had held, independent of Congress' Act, that statutes of limitations were tolled for "the time during which the courts in the States lately in rebellion were closed to the citizens of the loyal States. .. ." Id., at 503; see also Hanger v. Abbott, 6 Wall. 532, 539-542 (1868). Hence, the Court could have seen the relevant statute as ratifying a pre-existing expectation of tolling due to wartime exigencies, rather than as extending limitations periods that had truly expired. See id., at 541; see also Stewart, supra, at 507. In our view, Stewart therefore no more dictates the outcome here than does seemingly contrary precedent regarding the Fifth Amendment privilege.

Instead, we believe that the outcome of this case is determined by the nature of the harms that California's law creates, by the fact that the law falls within Justice Chase's second category as Chase understood that category, and by *621 a long line of authority holding that a law of this type violates the Ex Post Facto Clause.

III

In a prodigious display of legal and historical textual research, the dissent finely parses cases that offer us support, see post, at 633-637; shows appreciation for 19th-century dissident commentary, see post, at 638-639; discusses in depth its understanding of late 17th-century and early 18th-century parliamentary history, post, at 642-649; and does its best to drive a linguistic wedge between Justice Chase's alternative descriptions of categories of ex post facto laws, post, at 640-641. All to what end? The dissent undertakes this Herculean effort to prove that it is not unfair, in any constitutionally relevant sense, to prosecute a man for crimes committed 25 to 42 years earlier when nearly a generation has passed since the law granted him an effective amnesty. Cf. post, at 649-653.

We disagree strongly with the dissent's ultimate conclusion about the fairness of resurrecting a long-dead prosecution. See infra, at 630-632. Rather, like Judge Learned Hand, we believe that this retroactive application of a later-enacted law is unfair. And, like most other judges who have addressed this issue, see supra, at 617-618, we find the words "ex post facto" applicable to describe this kind of unfairness. Indeed, given the close fit between laws that work this kind of unfairness and the Constitution's concern with ex post facto laws, we might well conclude that California's law falls within the scope of the Constitution's interdiction even were the dissent's historical and precedent-related criticisms better founded than they are.

We need not examine that possibility here, however, because the dissent's reading of the relevant history and precedent raises far too many problems to serve as a foundation for the reading of "ex post facto" that it proposes. In our view, that reading is too narrow; it is unsupported by precedent; *622 and it would deny liberty where the Constitution gives protection.

A

In the dissent's view, Chase's historical examples show that "Calder's second category concerns only laws" that both (1) "subjec[t] the offender to increased punishment" and (2) do so by "chang[ing] the nature of an offense to make it greater than it was at the time of commission." Post, at 642 (emphasis added). The dissent does not explain what it means by "chang[ing] the nature of an offense," but we must assume (from the fact that this language comes in a dissent) that it means something beyond attaching otherwise unavailable punishment and requires, in addition, some form of recharacterization of the crime. After all, the dissent seeks to show through its discussion of the relevant historical examples that a new law subjecting to punishment a person not then legally subject to punishment does not fall within the second category unless the new law somehow changes the kind of crime that was previously at issue.

The dissent's discussion of the historical examples suffers from several problems. First, it raises problems of historical accuracy. In order to show the occurrence of a change in the kind or nature of the crime, the dissent argues that Parliament's effort to banish the Earl of Clarendon amounted to an effort "to elevate criminal behavior of lower magnitude to the level of treason." Post, at 643. The dissent supports this argument with a claim that "the allegations [against Clarendon] could not support a charge of treason." Ibid. Historians, however, appear to have taken a different view. But cf. post, at 646. In their view, at least one charge against Clarendon did amount to treason.

Clarendon was charged with "betraying his majesty's secret counsels to his enemies during the war." Edward Earl of Clarendon's Trial, 6 How. St. Tr. 292, 350 (1667) (hereinafter Clarendon's Trial). In the words of one historian, this charge "undoubtedly contained treasonous matter." *623 Roberts, The Impeachment of the Earl of Clarendon, 13 Camb. Hist. J. 1, 13 (1957) (hereinafter Roberts, Impeachment); accord, G. Miller, Edward Hyde, Earl of Clarendon 21-22 (1983); 10 Dictionary of National Biography 383 (L. Stephen & S. Lee eds. reprint 1922). See also Roberts, The Law of Impeachment in Stuart England: A Reply to Raoul Berger, 84 Yale L. J. 1419, 1426 (1975); R. Berger, Impeachment: The Constitutional Problems 45, n. 193 (1974) (acknowledging and not contradicting the historian Henry Hallam's conclusion that "`one of the articles did actually contain an unquestionable treason'"). And it was on the basis of this specific charge—a charge of conduct that amounted to treason—that the House of Commons (which had previously refused to impeach Clarendon on other charges that did not amount to treason) "voted to impeach Clarendon for high treason." Roberts, Impeachment 13; accord, Clarendon's Trial 350-351.

The House of Lords initially thought that the Commons had failed to provide sufficient evidence because it failed to provide "special articles" laying out "particulars to prove it." Roberts, Impeachment 14. The Lords and Commons deadlocked over whether a "general charge" was sufficient. Ibid. See also Clarendon's Trial 351-374. But Clarendon fled, thereby providing proof of guilt. 10 Dictionary of National Biography, supra, at 383; see also Clarendon's Trial 389-390; 2 H. Hallam, Constitutional History of England: From the Accession of Henry VII to the Death of George II, p. 373 (8th ed. 1855). See also Berger, supra, at 44-45, and n. 189. The Lords and Commons then agreed to banish Clarendon. The Act of banishment—the only item in this complicated history explicitly cited by Chase—explained that Clarendon was being banished because he had "been impeached by the Commons . . . of Treason and other misdemeanours" and had "fled whereby Justice cannot be done upon him according to his demerit." 19 & 20 Car. II, c. 2 (1667-1668) (reprint 1963).

*624 In sum, Clarendon's case involved Parliament's punishment of an individual who was charged before Parliament with treason and satisfactorily proved to have committed treason, but whom Parliament punished by imposing "banishment" in circumstances where the party was not, in "the ordinary course of law," liable to any "banishment." See supra, at 614. Indeed, because Clarendon had fled the country, it had become impossible to hold a proper trial to subject Clarendon to punishment through "ordinary" proceedings. See 19 & 20 Car. II, c. 2; Clarendon's Trial 385-386. To repeat, the example of Clarendon's banishment is an example of an individual's being punished through legislation that subjected him to punishment otherwise unavailable, to any degree, through "the ordinary course of law"—just as Chase and his predecessor Wooddeson said. Calder,