Amicus Curiae Brief — Holsey Ellingburg, Jr., Petitioner v. United States

No. 24-482

IN THE

Supreme Court of the United States

_______________

HOLSEY ELLINGBURG, JR.,

Petitioner,

v.

UNITED STATES,

_______________

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

_______________

BRIEF OF PROFESSOR WAYNE A. LOGAN AS

AMICUS CURIAE IN SUPPORT OF

PETITIONER

_______________

PROFESSOR WAYNE LOGAN KRYSTAL B. SWENDSBOE

WAKE FOREST

Counsel of Record

UNIVERSITY SCHOOL OF

LEAH C. DESKINS

LAW

GRACE O. MOORE

1834 Wake Forest Rd

WILEY REIN LLP

Winston-Salem, NC

2050 M St. NW

27109

Washington, D.C. 20036

kswendsboe@wiley.law

(202) 719-4197

June 30, 2025

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ............................1

SUMMARY OF ARGUMENT .....................................2

ARGUMENT ...............................................................4

I.

The Eighth Circuit’s Decision Flouts the

Central Purposes of the Ex Post Facto

Clause................................................................4

A. The Ex Post Facto Clause Has

Several Critically Important Purposes

in Protecting Civil Liberty. ............................7

B.The Eighth Circuit’s Decision

Transgresses the Central Purposes of

the Ex Post Facto Clause. ............................10

II. The Eighth Circuit Erred in

Characterizing Restitution As a NonPunitive Sanction. ..........................................13

III. The Eighth Circuit Wrongly Concluded

That the Ex Post Facto Clause Prohibits

Only Retroactive Criminal Laws. ..................17

A. Questioning Calder: Early Judicial

Doubts. ............................................................19

B. Questioning Calder: Framing Era

History. ...........................................................26

C. Calder’s Limited Legacy. ...........................29

CONCLUSION ..........................................................32

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Alleyne v. United States,

570 U.S. 99 (2013) ................................................ 30

Calder v. Bull,

3 U.S. (3 Dallas) 386 (1798) ..... 4–6, 18–23, 25–26,

28–31

Carmell v. Texas,

529 U.S. 513 (2000) ............................................ 7–8

Carr v. United States,

560 U.S. 438 (2010) ................................................ 2

Cummings v. Missouri,

71 U.S. (4 Wall.) 277 (1867) ............................... 6–7

Dufresne v. Baer,

744 F.2d 1543 (11th Cir. 1984) ............................ 10

Eastern Enterprises v. Apfel,

524 U.S. 498 (1988) .......................................... 9, 29

Fletcher v. Peck,

10 U.S. (6 Cranch) 87 (1810) ........................... 6, 23

Gamble v. United States,

587 U.S. 678 (2019) .............................................. 30

Garner v. Jones,

529 U.S. 244 (2000) ........................................ 11–12

iii

Gundy v. United States,

583 U.S. 1166 (2018) .............................................. 2

Hester v. United States,

586 U.S. 1104 (2019) ................................ 14–15, 17

James v. United States,

366 U.S. 213 (1961) ................................................ 8

Kelly v. Robinson,

479 U.S. 36 (1986) .......................................... 15–16

Landgraf v. USI Film Productions,

511 U.S. 244 (1994) ............................................ 6, 9

Lehmann v. United States,

353 U.S. 685 (1957) .............................................. 29

Lynce v. Mathis,

519 U.S. 433 (1997) ............................................ 8–9

Marks v. United States,

430 U.S. 188 (1977) ................................................ 9

Montejo v. Louisiana,

556 U.S. 778 (2009) .............................................. 31

Ogden v. Saunders,

25 U.S. (12 Wheat.) 213, 286 (1827) .................... 20

Palmer v. Clarke,

408 F.3d 423 (8th Cir. 2005) ................................ 30

Paroline v. United States,

572 U.S. 434 (2014) ........................................ 14–15

iv

Pasquantino v. United States,

544 U.S. 349 (2005) .............................................. 15

Payne v. Tennessee,

501 U.S. 808 (1991) .............................................. 30

Ramos v. Louisiana,

590 U.S. 83 (2020) ................................................ 30

Satterlee v. Mathewson,

27 U.S. (2 Pet.) 830 (1829) ...................... 19–24, 31

Sessions v. Dimaya,

584 U.S. 148 (2018) .............................................. 32

Smith v. Doe,

538 U.S. 84 (2003) ................................................ 17

Society for the Propagation of the Gospel

v. Wheeler,

22 Fed. Cas. 756 (C.C. N.H. 1814)....................... 24

St. Regis Paper Co. v. United States,

368 U.S. 208 (1961) ................................................ 8

State v. Letalien,

985 A.2d 4 (Me. 2009) ............................................ 4

Stoddart v. Smith,

5 Binn. 355 (Pa. 1812).......................................... 24

Stogner v. California,

539 U.S. 607 (2003) .......................................... 8, 10

Sveen v. Melin,

584 U.S. 811 (2018) ................................................ 8

v

United States v. Brown,

381 U.S. 437 (1965) .............................................. 10

United States v. Christopher,

273 F.3d 294 (3d Cir. 2001) ................................. 11

United States v. Edwards,

162 F.3d 87 (3d Cir. 1998) ................................... 12

United States v. Ellingburg,

113 F.4th 839 (8th Cir. 2024) .............................. 15

United States v. Hankins,

858 F.3d 1273 (9th Cir. 2017) .............................. 16

United States v. Kebodeaux,

570 U.S. 387 (2013) ................................................ 2

United States v. Norwood,

49 F.4th 189 (3d Cir. 2022) ...................... 10, 12, 17

United States v. Sanjar,

876 F.3d 725 (5th Cir. 2017) ................................ 16

United States v. Satterfield,

743 F.2d 827 (11th Cir. 1984) .............................. 13

Weaver v. Graham,

450 U.S. 24 (1981) .............................................. 7, 9

Constitution and Statutes

U.S. Const. art. I, § 9 ............................................. 4, 21

U.S. Const. art I, § 10 ................................ 4, 18, 20, 25

vi

Mandatory Victim Restitution Act

(“MVRA”), Pub. L. No. 104-132,

tit. II, subtit. A, 110 Stat. 1214

(1996) .............................................. 3, 10–13, 15, 18

Victim and Witness Protection Act

(“VWPA”), Pub. L. No. 97-291,

96 Stat. 1248 (1982) ............................................. 12

18 U.S.C. § 3572 ........................................................ 16

18 U.S.C. § 3663A...................................................... 16

18 U.S.C. § 3664 .................................................. 12, 16

Legislative Materials

5 Annals of Cong. (1796) ........................................... 24

S. Rep. No.104-179 (1995) ......................................... 15

Other Authorities

Nathaniel Amann, Note, Restitution

and the Excessive Fines Clause,

58 Am. Crim. L. Rev. 205 (2021) ......................... 14

Beth A. Colgan, Reviving the Excessive

Fines Clause, 102 Calif. L. Rev. 277

(2014) .................................................................... 13

4 The Debates in the Several State

Conventions of the Adoption of the

Federal Constitution (Jonathan

Elliot ed., 1836) .................................................... 25

vii

Brainerd T. DeWitt, Are Our LegalTender Laws Ex Post Facto?

Pol. Sci. Q. 96 (1900) ............................................ 26

16 The Documentary History of the

Ratification of the Constitution

(John Kaminsi et al., eds., 1986) ......................... 25

The Federalist (Clinton Rossiter ed.,

1961) ....................................................................... 5

Oliver P. Field, Ex Post Facto in the

Constitution, 20 Mich. L. Rev. 315

(1922) .............................................................. 26–27

Robert F. Harper, The Code of

Hammurabi King of Babylon About

2250 B.C. (1904) ................................................... 13

13 Thomas Jefferson, The Writings of

Thomas Jefferson (1903) ...................................... 24

Brian Kleinhaus, Note, Serving Two

Masters: Evaluating the Criminal or

Civil Nature of the VWPA and

MVRA Through the Lens of the

Ex Post Facto Clause, the Abatement

Doctrine, and the Sixth Amendment,

73 Fordham L. Rev. 2711 (2005) ......................... 14

Richard E. Laster, Criminal Restitution:

A Survey of Its Past History and an

Analysis of Its Present Usefulness,

5 U. Rich. L. Rev. 71 (1970) ................................. 13

viii

Leonard W. Levy, Original Intent and

the Framers’ Constitution (1988) ......................... 28

Wayne A. Logan, The Ex Post Facto

Clause: Its History and Purpose

In a Punitive Society (2022) ........ 1, 4, 18-19, 26, 31

Wayne A. Logan & Michael M. O’Hear,

Sentencing Law, Policy, and Practice

(2022) ...................................................................... 1

Cortney E. Lollar, What Is Criminal

Restitution?, 100 Iowa L. Rev. 93

(2014) .................................................................... 17

Margaret C. Love, Jenny Roberts,

& Wayne A. Logan, Collateral

Consequenes of Criminal Conviction:

Law, Policy, and Practice

(4th ed., 2021)......................................................... 1

John Mikhail, James Wilson, Early

American Land Companies, and the

Original Meaning of “Ex Post Facto,”

17 Geo. J. L. & Pub. Pol’y 79 (2019) .............. 27–28

Michael Stokes Paulsen, The

Intrinsically Corrupting Influence of

Precedent, 22 Const. Comment. 289

(2005) .................................................................... 29

Kathryn Preyer, Penal Measures in the

American Colonies: An Overview,

26 Am. J. Legal Hist. 326 (1982) ......................... 13

ix

2 The Records of the Federal Convention

of 1787 (Max Farrand ed., 1911) ......................... 25

Restitution Process,

U.S. Department of Justice,

https://www.justice.gov/criminalvns/restitution-process......................................... 18

3 Joseph Story, Commentaries on the

Constitution (1833) ........................................ 23–24

William Tallack, Reparation to the

Injured; and the Rights of the

Victims of Crime to Compensation

(1900) .................................................................... 13

Alex Tuckness, Retribution and

Restitution in Locke’s Theory of

Punishment, 72 J. Pol. 720 (2010) ....................... 14

Dana A. Waterman, Note, A Defendant’s

Ability to Pay: The Key to Unlocking

the Door of Restitution Debt,

106 Iowa L. Rev. 455 (2020) ................................ 11

Willis P. Whichard, Justice James

Iredell (2000) ....................................................... 25

Evan C. Zoldan, The Civil Ex Post Facto

Clause, 2015 Wis. L. Rev. 727 ....................... 25, 28

1

INTEREST OF AMICUS CURIAE 1

Wayne A. Logan is a University Research

Professor at Wake Forest University School of Law

and the nation’s foremost Ex Post Facto Clause

scholar. Professor Logan has taught criminal

procedure, criminal law, sentencing, and capital

punishment classes for almost three decades,

including at Wake Forest, Florida State University

College of Law, University of California Law San

Francisco, William & Mary Law School, and William

Mitchell College of Law.

A primary focus of Professor Logan’s life’s work

has been to explore and draw attention to the proper

scope and application of the Ex Post Facto Clause (the

“Clause”). His most recent book, The Ex Post Facto

Clause: Its History and Role in a Punitive

Society (2022), provides the only comprehensive

critical examination of the history of the Clause and

the Supreme Court’s Ex Post Facto jurisprudence.

Professor Logan has also authored or co-authored

several other books focusing on the sentencing of

criminal offenders, including Sentencing Law, Policy,

and Practice (2022) and Collateral Consequences of

Criminal Conviction: Law, Policy, and Practice (4th

ed., 2021).

Professor Logan’s shorter scholarly works have

appeared in the nation’s premier legal publications,

including Michigan Law Review, Notre Dame Law

1 No counsel for a party authored this brief in whole or in part,

and no counsel or party other than amicus curiae or his counsel

made a monetary contribution intended to fund the preparation

or submission of this brief.

2

Review, Pennsylvania Law Review, Texas Law

Review, and Vanderbilt Law Review. His scholarship

has been cited in well over one hundred state and

federal court decisions, including by this Court in

United States v. Kebodeaux, 570 U.S. 387 (2013). He

has filed several amicus briefs, including with this

Court (Gundy v. United States, 583 U.S. 1166 (2018)

and Carr v. United States, 560 U.S. 438 (2010)).

Professor Logan’s perspective on legal matters has

been solicited by many media outlets, including The

New York Times, The Wall Street Journal, National

Public Radio, Fox News, and Radio Free Europe. He

has been a member of the American Law Institute for

the past twenty-five years and previously served as

the chair and secretary of the Criminal Justice

Section of the Association of American Law Schools.

As the nation’s foremost authority on the Ex Post

Facto Clause, Professor Logan has an interest in

advising the Court on the purpose and scope of the

Clause, which are at odds with the Eighth Circuit’s

decision. This case raises critically important

constitutional issues regarding the widespread

practice of imposing restitution as a sentencing

condition in criminal cases. It is essential that the

historical background and enduring purpose of the Ex

Post Facto Clause figure centrally in assessing the

constitutionality of the federal law challenged in this

case.

SUMMARY OF ARGUMENT

The Ex Post Facto Clause plays a critically

important role in the nation’s constitutional

infrastructure. By preventing the legislative branch

3

from passing burdensome retroactive laws, the Clause

ensures that the government acts fairly, abiding by

the rules it sets; provides fair notice to individuals;

and preserves the separation of powers by requiring

legislatures to enact only laws having prospective—

not retrospective—effect.

The Eighth Circuit’s decision below upholding

application of the Mandatory Victim Restitution Act

(“MVRA”), Pub. L. No. 104-132, tit. II, subtit. A, 110

Stat. 1214 (1996), violates these core principles. By

retroactively increasing the restitution that Petitioner

owes—a punishment—Congress violated the Ex Post

Facto Clause. The Court should vacate the Eighth

Circuit’s contrary finding.

The Eighth Circuit’s decision is problematic for

two fundamental reasons. First, it failed to recognize

that restitution is a criminal sanction. In so doing, it

ignored (1) the majority view of federal circuit courts

of appeal; (2) the historical record clearly showing that

restitution is a component of criminal punishment; (3)

statements of members of this Court recognizing the

punitive nature of restitution; and (4) features of

restitution under the MVRA that clearly demonstrate

its nature as a criminal sanction.

Second, the Eighth Circuit incorrectly presumed

that the Clause prohibits only retroactive criminal

penalties. In doing so it ignored substantial historical

support, dating back to the nation’s founding, showing

that the Clause was intended to prohibit burdensome

retroactive laws of both a civil and criminal nature.

Moreover, the legal authority on which the Eighth

4

Circuit relied—the Court’s decision in Calder v.

Bull—is subject to extensive criticism.

ARGUMENT

I.

THE EIGHTH CIRCUIT’S DECISION FLOUTS THE

CENTRAL PURPOSES OF THE EX POST FACTO

CLAUSE.

Ex post facto laws were of major concern to the

Framers of the U.S. Constitution. 2 Indeed, their

concern was such that they included two ex post facto

prohibitions in Article I—one barring Congress

(Section 9), and another barring state legislatures

(Section 10) 3—one of the few civil liberty protections

enshrined in a document otherwise mainly dedicated

to defining the structure and operation of the federal

government. 4

2 For fuller discussion of the Framing Era history of the Clause

and its intended purposes see Wayne A. Logan, The Ex Post

Facto Clause: Its History and Purpose In a Punitive Society Chs.

1–2 (2022).

3 U.S. Const. art. I, § 9, cl. 3 (“No . . . ex post facto Law shall be

passed.”); U.S. Const. art I, § 10, cl. 1 (“No State shall . . . pass

any . . . ex post facto Law.”).

4 As the Supreme Judicial Court of Maine recognized over two

centuries later:

[t]he framers’ decision to include the ex post facto

clause in the body of the Constitution adopted in

1787, and not to defer consideration to the

amendment process that would follow, is

evidence that the framers viewed the federal ban

on ex post facto laws as fundamental to the

protection of individual liberty.

State v. Letalien, 985 A.2d 4, 13 (Me. 2009).

5

Although scholarly debate persists regarding

many provisions of the U.S. Constitution, there is no

question that the ex post facto prohibitions were

motivated by the recognized propensity of legislatures

to enact burdensome retroactive laws. Alexander

Hamilton spoke to this concern in the Federalist

Papers when he singled out the Clause as a primary

reason favoring state ratification of the Constitution

(which contained no Bill of Rights). He wrote that ex

post facto laws “have been, in all ages, the favorite and

most formidable instruments of tyranny.” 5 To

Hamilton, the “prohibition of ex post facto laws” was

among the greatest “securities to liberty and

republicanism [the Constitution] contains.” 6

Fellow Federalist Papers contributor James

Madison described ex post facto laws as “contrary to

the first principles of the social compact and to every

principle of sound legislation,” and considered the

Clause a key part of the Constitution’s “bulwark in

favor of personal security and private rights.” 7 Early

justices on the Court were equally aware of the need

to constrain Congress and state legislatures. Justice

Samuel Chase, in Calder v. Bull, one of the Court’s

first decisions, recognized that “the advocates of [ex

post facto] laws were stimulated by ambition, or

personal resentment, and vindictive malice. To

prevent such, and similar, acts of violence and

5 The Federalist No. 84, at 512 (Alexander Hamilton) (Clinton

Rossiter ed., 1961).

6 Id. at 511.

7 Id., No. 44, at 282 (James Madison).

6

injustice . . . the Federal and State Legislatures, were

prohibited from passing any . . . ex post facto law.” 8

Shortly thereafter, in Fletcher v. Peck, Chief

Justice John Marshall echoed this view. He

recognized that “the Framers of the constitution

viewed, with some apprehension, the violent acts

which might grow out of the feelings of the moment”

and that the Clause embodied among Americans “a

determination to shield themselves . . . from the

effects of those sudden and strong passions to which

men are exposed.” 9 Protection was needed, the Chief

Justice wrote, to preclude legislatures from enacting

burdensome retroactive laws targeting particular

individuals when they were caught up in the “feelings

of the moment” and subject to “sudden and strong

passions.” 10

Over time, a veritable “who’s who” of disfavored

Americans have invoked the Clause as a shield,

including: in the late 1860s, Confederate

sympathizers; at the turn of the twentieth century,

immigrants and prostitutes; and in the 1950s, former

members of the Communist Party. In one of the two

Confederate sympathizer cases, Cummings v.

Missouri, 11 the Court invalidated on ex post facto

grounds the conviction of a Roman Catholic priest who

8 3 U.S. (3 Dallas) 386, 389 (1798).

9 10 U.S. (6 Cranch) 87, 137–38 (1810).

10 Id. at 138; see also Landgraf v. USI Film Prods., 511 U.S. 244,

266 (1994) (recognizing that a legislature’s “responsivity to

political pressures poses a risk that it may be tempted to use

retroactive legislation as a means of retribution against

unpopular groups or individuals”).

11 71 U.S. (4 Wall.) 277 (1867).

7

was prohibited from preaching for failure to satisfy

the state’s required “oath of loyalty.” 12 The Court

concluded that the law’s retroactive prohibition of a

vocation (the ministry) constituted a retroactively

imposed punishment and was a product of “the excited

action of the State[] . . . [against which] the Framers

of the Federal Constitution intended to guard.” 13 The

Ex Post Facto Clause, the Court stated, “[was]

intended to secure the liberty of the citizen” and

“cannot be evaded by the form in which the power of

the State is exerted.” 14

A.

The Ex Post Facto Clause Has

Several

Critically

Important

Purposes

in

Protecting

Civil

Liberty.

The Ex Post Facto Clause has several critically

important structural purposes in protecting civil

liberty in the nation’s constitutional democracy.

Perhaps

foremost,

the

Clause

“restricts

governmental power by restraining arbitrary and

potentially vindictive legislation” and guards against

legislative abuses. 15 As the Court noted in Carmell v.

Texas, 16 “[t]here is plainly a fundamental fairness

interest in having the government abide by the rules

of law it establishes to govern the circumstances

12 Id. at 280, 322.

13 Id. at 322.

14 Id. at 329; see also Weaver v. Graham, 450 U.S. 24, 31 (1981)

(“it is the effect, not the form, of the law that determines whether

it is ex post facto”).

15 Weaver, 450 U.S. at 29.

16 529 U.S. 513, 533 (2000).

8

under which it can deprive a person of his or her

liberty or life.” 17 The Clause, the Court recognized

three years later in Stogner v. California, 18 precludes

the ability of “legislatures to pick and choose when to

act retroactively,” which “risks both ‘arbitrary and

potentially vindictive legislation.’” 19 It ensures, in

short, that the government “play[s] by its own

rules.” 20

The Clause does not prohibit burdensome,

arbitrary, or vindictive laws generally. Rather, it only

prohibits those that have retroactive effect, with good

reason. Retroactive laws are problematic because with

them legislators can single out already disfavored

parties (who cannot change their past actions),

confident in the knowledge that the electorate will

back them. As Justice Gorsuch recently noted,

ensuring that laws apply prospectively “prevents

majoritarian legislatures from condemning disfavored

minorities for past conduct they are powerless to

change.” 21

17 Id. at 514.

18 539 U.S. 607 (2003).

19 Id. at 611 (citation omitted).

20 Id.; see also Lynce v. Mathis, 519 U.S. 433, 440 (1997) (“the

Constitution places limits on the sovereign’s ability to use its

lawmaking power to modify bargains it has made with its

subjects”). This same concern prompted Justice Hugo Black, who

authored several decisions invoking the Clause, to insist that

“the Government should turn square corners in dealing with the

people.” St. Regis Paper Co. v. United States, 368 U.S. 208, 229

(1961) (Black, J., dissenting).

21 Sveen v. Melin, 584 U.S. 811, 827 (2018) (Gorsuch, J.,

dissenting); see also James v. United States, 366 U.S. 213, 247

n.3 (1961) (Harlan, J., concurring in part and dissenting in part)

9

A second chief purpose of the Clause is to ensure

fair notice. 22 The principle of nulla poena sine lege is

a fundamental feature of the rule of law that

constrains every civilized system of government,

including ours. Legislatures can, and regularly do,

enact laws creating new criminal prohibitions and

increasing punishment for already codified offenses.

However, such provisions must apply prospectively,

giving fair notice to any would-be violators as to the

consequence of their actions. Indeed, the Court has

recognized a “central concern[]” of the Clause is

preventing “the lack of fair notice” that can occur

“when [a] legislature increases punishment beyond

what was prescribed when the crime was

consummated.” 23

(“[T]he policy of the prohibition against ex post facto

legislation . . . rest[s] on the apprehension that the legislature,

in imposing penalties upon past conduct . . . may be acting with

a purpose not to prevent dangerous conduct generally but to

impose by legislation a penalty against specific persons or classes

of persons.”); cf. E. Enters. v. Apfel, 524 U.S. 498, 548 (1988)

(Kennedy, J., concurring in part and dissenting in part) (noting

that the Court’s cases “reflect our recognition that retroactive

lawmaking is a particular concern for the courts because of the

legislative ‘tempt[ation] to use retroactive legislation as a means

of retribution against unpopular groups or individuals’” (citation

omitted)).

22 See Weaver, 450 U.S. at 28–29 (“[T]he Framers sought to

assure that legislative Acts give fair warning of their effect and

permit individuals to rely on their meaning . . . .”); see also Marks

v. United States, 430 U.S. 188, 191 (1977) (noting “the principle

on which the Clause is based [is] the notion that persons have a

right to fair warning”).

23 See Lynce, 519 U.S. at 896 (quoting Weaver, 450 U.S. at 30); cf.

Landgraf, 511 U.S. at 266 (explaining that “retroactive statutes

10

A third and final purpose of the Ex Post Facto

Clause is to preserve separation of powers. The Clause

does so by requiring that Congress and state

legislatures enact burdensome laws only “with

prospective effect,” “leav[ing] the application of

existing penal law” to the judicial and executive

branches. 24 Ex post facto laws, as the Stogner Court

noted, prevent the “erosion of the separation of

powers.” 25

B.

The Eighth Circuit’s Decision

Transgresses the Central Purposes

of the Ex Post Facto Clause.

The Court has emphasized that the reach of a

constitutional provision should turn on the “reasons”

it was included in the Constitution and the “evils it

was designed to eliminate.” 26 Viewed in this light, the

Eighth Circuit’s decision to permit retroactive

application of the MVRA to Petitioner is undeserving

of support and should be vacated because it violates

the core structural constitutional purposes served by

the Ex Post Facto Clause, identified above.

First, retroactive application to Petitioner of the

MVRA epitomizes the kind of abusive legislation that

raise particular concerns,” including “the interests in fair notice

and repose that may be compromised by retroactive legislation”).

24 United States v. Norwood, 49 F.4th 189, 215 (3d Cir. 2022)

(citation omitted).

25 Stogner, 539 U.S. at 611 (citing Weaver, 450 U.S. at 29, n.10).

26 United States v. Brown, 381 U.S. 437, 442 (1965); see also, e.g.,

Dufresne v. Baer, 744 F.2d 1543, 1546 (11th Cir. 1984) (“When

subjecting a law to ex post facto scrutiny, courts should bear in

mind the related aims of the ex post facto clause . . . .”).

11

the Framers intended the Ex Post Facto Clause to

prohibit. The law’s mandated, increased duration

period of restitution, and attendant associated

interest penalties, apply only to individuals convicted

of crimes, a readily identifiable and disdained

population. Although Petitioner has already spent

nearly twenty years in prison and paying restitution,

the MVRA increases the amount of restitution he is

required to pay—almost doubles it—and extends that

obligation. 27

Retroactive application of the MVRA also betrays

the second chief purpose of the Clause—that

individuals receive fair notice of being subject to

burdensome laws. Whatever hope Petitioner had of

being able to dedicate the little money he earned to

satisfy post-prison demands, such as family care, food,

and rent—already very difficult for any former

inmate—is made more remote, if not impossible, by

the retroactive application of the MVRA. Worse yet, if

considered a civil sanction, as the Eighth Circuit has

held in Petitioner’s case, the payment obligation

persists post-mortem, 28 likely saddling Petitioner’s

27 See Dana A. Waterman, Note, A Defendant’s Ability to Pay: The

Key to Unlocking the Door of Restitution Debt, 106 Iowa L. Rev.

455, 456 (2020) (noting that from 2014–2016 only approximately

nine percent of restitution was collected from federal

defendants). That failure to satisfy a restitution requirement is

only a possibility, not a certainty, is of no moment. See Garner v.

Jones, 529 U.S. 244, 250 (2000) (noting that a defendant need

only show “a sufficient risk of increasing the measure of

punishment attached to the covered crimes” (citation omitted)).

28 See United States v. Christopher, 273 F.3d 294, 299 (3d Cir.

2001).

12

family with long-term debt payment obligations (and

continued compounding interest).

Furthermore, failure to satisfy restitution

requirements can short-circuit reintegration into

society altogether. This is because Petitioner can be

returned to prison if he cannot satisfy its payment

demands. 29 The fact that the MVRA mandates

restitution to the fullest extent possible, without

regard for an individual’s ability to pay 30 (unlike the

law in effect at the time of Petitioner’s offense, the

Victim and Witness Protection Act (“VWPA”), Pub. L.

No. 97-291, 96 Stat. 1248 (1982)) 31 makes this

outcome all the more likely.

Finally, permitting retroactive application of the

MVRA allows Congress to transgress the bedrock

principle of separation of powers, by retroactively

“increas[ing] the punishment” for a crime after the

fact. 32 Congress overstepped the Court’s ability to

evaluate the facts and law and to impose an

appropriate penalty (which may include restitution).

It therefore contravenes the goal of “leav[ing] the

application of existing penal law” to the judicial and

executive branches. 33

29 See Norwood, 49 F.4th at 219.

30 18 U.S.C. § 3664(f)(1)(A).

31 See United States v. Edwards, 162 F.3d 87, 88–89 (3d Cir.

1998) (noting that under the VWPA courts were required to

consider ability to pay, meaning that the defendant “would, in all

likelihood, not be held accountable for the full amount” but for

retroactive application of the MVRA).

32 Garner, 529 U.S. at 249.

33 Norwood, 49 F.4th at 215 (citation omitted).

13

II.

THE

EIGHTH

CIRCUIT

ERRED

IN

CHARACTERIZING RESTITUTION AS A NONPUNITIVE SANCTION.

As the parties’ briefing acknowledges, a majority

of circuit courts conclude that restitution under the

MVRA is a component of a criminal sentence, and that

therefore its retroactive imposition is subject to Ex

Post Facto Clause prohibition. 34 The majority view,

contra that adopted by the Eighth Circuit Court of

Appeals in proceedings below, is manifestly correct for

several reasons.

Requiring that restitution be paid to the victim of

a crime dates back to antiquity. 35 As the Eleventh

Circuit has recognized, “history is replete with

references to restitution as part of the criminal

sentence.” 36 In America, dating back to colonial times,

restitution was regularly accorded crime victims and

regarded as part of a punishment imposed. 37

34 See, e.g., Pet’r’s Pet. Cert. at 8–11; Br. U.S. Supp. Vacatur at

14, 25–26.

35 See, e.g., Robert F. Harper, The Code of Hammurabi King of

Babylon About 2250 B.C. 13 (1904) (“If a man steal[s] ox or

sheep, . . . or boat—if it be from a god (temple) or a palace, he

shall restore thirtyfold; if it be from a freeman, he shall render

tenfold. If the thief have nothing wherewith to pay he shall be

put to death.”). See also generally William Tallack, Reparation to

the Injured; and the Rights of the Victims of Crime to

Compensation 6–7 (1900); Richard E. Laster, Criminal

Restitution: A Survey of Its Past History and an Analysis of Its

Present Usefulness, 5 U. Rich. L. Rev. 71 (1970).

36 United States v. Satterfield, 743 F.2d 827, 837 (11th Cir. 1984).

37 See Beth A. Colgan, Reviving the Excessive Fines Clause, 102

Calif. L. Rev. 277, 303–16 (2014); Kathryn Preyer, Penal

Measures in the American Colonies: An Overview, 26 Am. J. Legal

14

Members of this Court have stated their view that

restitution is punitive in nature. As Justice Gorsuch

(joined by Justice Sotomayor) recently put it,

“restitution is imposed as part of a defendant’s

criminal conviction.” 38 In Paroline v. United States, 39

which concerned payment of restitution to child

pornography victims, the Court observed that “despite

the differences between restitution and a traditional

fine, restitution still implicates ‘the prosecutorial

powers of government.’” 40 The “primary goal of

restitution is remedial or compensatory, but it also

serves punitive purposes,” 41 and “is imposed by the

government ‘at the culmination of a criminal

proceeding and requires conviction of an underlying’

crime.” 42 Restitution serves “the [punitive] need to

impress upon defendants that their acts are not

Hist. 326, 343, 351 (1982); Nathaniel Amann, Note, Restitution

and the Excessive Fines Clause, 58 Am. Crim. L. Rev. 205, 217–

18 (2021); Brian Kleinhaus, Note, Serving Two Masters:

Evaluating the Criminal or Civil Nature of the VWPA and MVRA

Through the Lens of the Ex Post Facto Clause, the Abatement

Doctrine, and the Sixth Amendment, 73 Fordham L. Rev. 2711,

2718–19 (2005).

John Locke, who had enormous influence on Framing Era

thought, was unequivocal in his view that restitution was a

primary purpose and part of punishment. See Alex Tuckness,

Retribution and Restitution in Locke’s Theory of Punishment, 72

J. Pol. 720, 721–31 (2010).

38 Hester v. United States, 586 U.S. 1104, 1105 (2019) (Gorsuch,

J., joined by Sotomayor, J., dissenting from denial of certiorari)

(citation omitted).

39 572 U.S. 434 (2014).

40 Id. at 456 (citation omitted).

41 Id. (citation omitted).

42 Id. (citation omitted).

15

irrelevant or victimless.” 43 Similar recognition of the

punitive nature of restitution appears in Pasquantino

v. United States 44 and Kelly v. Robinson. 45

Restitution, in short, is not a tort-based remedy

ensconced within criminal punishment, but is itself a

punishment. The goal is not to make the crime victim

whole, like in a tort claim, 46 contrary to the Eighth

Circuit’s ruling below. 47 As the Court stated in Kelly

v. Robinson, restitution serves “the State’s interests

in rehabilitation and punishment, rather than the

victim’s desire for compensation.” 48 “The victim has no

control over the amount of restitution awarded or over

the decision to award restitution.” 49

Six other distinctive features make clear that

restitution is part of the corpus of punishment

43 Id. at 461; see also Hester, 586 U.S. at 1105 (Gorsuch, J., joined

by Sotomayor, J., dissenting from denial of certiorari)

(“Restitution plays an increasing role in federal criminal

sentencing today.”).

44 544 U.S. 349, 365 (2005) (stating that the purpose of restitution

is to “mete out appropriate criminal punishment”); see Pet’r’s Br.

at 22.

45 479 U.S. 36, 37 (1986) (explaining how restitution serves “the

penal goals of the State”); id. at 49 n.10 (discussing how

restitution serves various goals of punishment); see Pet’r’s Br. at

23.

46 As the Senate Report in favor of adopting the MVRA noted,

restitution proceedings are not to “become fora for the

determination of facts and issues better suited to civil [actions].”

S. Rep. No. 104-179, at 18 (1995).

47 United States v. Ellingburg, 113 F.4th 839, 841–42 (8th Cir.

2024).

48 479 U.S. at 53.

49 Id. at 52.

16

imposed on an individual, rather than being merely a

civil adjunct of a sentence:

1) Restitution cannot be modified by private

settlement. 50

2) Unlike a civil debt, restitution

dischargeable in bankruptcy. 51

is

not

3) Like a criminal fine, restitution is levied with

no regard for a defendant’s ability to pay, 52 and

the restitution amount can influence

imposition of other punishments and substitute

for a fine. 53

4) Restitution is a condition of probation, parole,

and supervised release, 54 as it is in Petitioner’s

50 See United States v. Hankins, 858 F.3d 1273, 1277 (9th Cir.

2017) (joining the Second, Fifth, Sixth, and Eighth circuits in

upholding the authority of a district court to enter an order

redirecting payments, reasoning that “restitution is a criminal

sentence” and as “private individuals should not be allowed to

thwart the penal goals of the criminal justice system by entering

into releases or settlements with wrongdoers,” rejecting contrary

position of Seventh and Tenth Circuits (citation omitted)); see

also United States v. Sanjar, 876 F.3d 725, 751 (5th Cir. 2017)

(“both restitution and criminal forfeiture are mandatory features

of criminal sentencing that a district court does not have

authority to offset”).

51 Kelly, 479 U.S. at 52.

52 18 U.S.C. § 3664(f)(1)(A).

53 18 U.S.C. §§ 3572(b), 3663A(a)(1).

54

See

Restitution

Process,

U.S.

Dep’t

of

Just.,

https://www.justice.gov/criminal-vns/restitution-process

(last

updated Oct. 10, 2023) (“Compliance with the Order of

Restitution automatically becomes a condition of the offender’s

probation or supervised release.”).

17

case, all forms of community supervision

acknowledged as being punitive in nature. 55

5) Failure to pay restitution results in

incarceration, 56 a coercive power of government

alone that no individual can exercise.

6) Failure to pay restitution can result in

preventing a convicted individual from having

their conviction sealed or expunged. 57

In sum, history, the views of members of this

Court, and the distinctive features of restitution make

clear that the Eighth Circuit erred in concluding that

restitution is a civil sanction.

III.

THE EIGHTH CIRCUIT WRONGLY CONCLUDED

THAT THE EX POST FACTO CLAUSE PROHIBITS

ONLY RETROACTIVE CRIMINAL LAWS.

The Eighth Circuit further erred by drawing a

strict distinction between the application of the

Clause to criminal versus civil penalties. The

application of the Ex Post Facto Clause to retroactive

criminal laws—but ignoring it entirely for civil ones—

55 Smith v. Doe, 538 U.S. 84, 101 (2003).

56 Norwood, 49 F.4th at 219; see also Hester, 586 U.S. at 1106

(Gorsuch, J., joined by Sotomayor, J., dissenting from denial of

certiorari) (“The effects of restitution orders, too, can be

profound. Failure or inability to pay restitution can result in

suspension of the right to vote, continued court supervision, or

even reincarceration.”).

57 Cortney E. Lollar, What Is Criminal Restitution?, 100 Iowa L.

Rev. 93, 123 n.109 (2014).

18

lacks historical support and is yet another reason to

vacate the Eighth Circuit’s decision below.

The primary source for the modern belief that the

Ex Post Facto Clause does not apply to civil penalties

is Calder v. Bull, 58 one of the Court’s first decisions,

and one that has been subject to major legal and

historical criticism. Calder involved a challenge

against a “resolution or law” of the Connecticut

Legislature, when it was exercising its appellate

judicial jurisdiction (not uncommon at the time),

which set aside a probate court’s decree and granted

a new trial. The Court unanimously rejected the ex

post facto challenge advanced, with Justice Chase

authoring what is now regarded as the principal

opinion in the case, including its central holding that

the Clause prohibits only criminal, not also civil,

retroactive laws. 59

Justice Chase offered several reasons in support of

the limit. First, he wrote that “private rights, of either

property, or contracts” 60 were already regulated by

other prohibitions in Article I, Section 10 (such as

58 3 U.S. (3 Dall.) 386 (1798).

59 The other principal holding of Calder was that the ex post facto

prohibition only extended to four categories of laws identified by

Justice Chase in his opinion. The validity of this holding is also

subject to serious question. See Logan, supra note 2, at 156–58.

However, the four-category limit is not material here because

retroactive application of the restitution provisions of the MVRA

increased the punishment experienced by the Petitioner,

violating the third prohibition. See Calder, 3 U.S. at 390 (“3rd.

Every law that changes the punishment, and inflicts a greater

punishment, than the law annexed to the crime, when

committed.”).

60 Calder, 3 U.S. at 390.

19

concerning the impairment of contracts). Second,

“[t]he expressions ‘ex post facto laws,’ are technical,

they had been in use long before the Revolution, and

had acquired an appropriate meaning, by Legislators,

Lawyers, and Authors.” 61 The “technical” meaning,

Justice Chase wrote, was reflected in the work of

William Blackstone and Richard Wooddeson, and “the

author of the Federalist [presumably James Madison

in Number 44], who I esteem superior to both, for his

extensive and accurate knowledge of the true

principles of Government.” 62 Finally, Justice Chase

pointed to what he regarded as the criminal-centric

definitions of ex post facto laws in several state

constitutions. 63

As subsequent understanding of the Framing Era

historical record has shown, Justice Chase’s analysis

in Calder was questionable, at best.

A.

Questioning Calder: Early Judicial

Doubts.

Not long after Calder was decided, members of the

Court questioned the accuracy of the criminal-centric

view it advanced. In Satterlee v. Matthewson, 64

Justice William Johnson, who was not on the Supreme

61 Id. at 391.

62 Id.

63 Id. Two fellow justices concurred with Justice Chase’s view.

See id. at. 397 (Paterson, J.); id. at 399–400 (Iredell, J.). Justice

Cushing, who also concurred in the result, did not expressly

opine on the matter. Id. at 400–01 (Cushing, J.). The two other

members of the Court at the time, Chief Justice Oliver Ellsworth

and Justice James Wilson, did not participate. See Logan, supra

note 2, at 214 n.18.

64 27 U.S. (2 Pet.) 380 (1829).

20

Court when Calder was decided, provided the first

explicit critique. Satterlee involved a challenge to a

Pennsylvania statute that effectively made a oncevoid land deed valid, which petitioners alleged

violated the Contracts Clause in Article I, Section 10.

The Court resolved the question on procedural

grounds, avoiding the Contracts Clause issue, with

Justice Johnson concurring in the result.

In a highly unusual “Note” appended to his

concurrence, however, Johnson, who intimated the

same view two years before in another case (Ogden v.

Saunders 65), took the opportunity to address what he

called the “unhappy idea, that the phrase ‘ex post

facto,’ in the constitution of the United States, was

confined to criminal cases exclusively; a decision

which leaves a large class of arbitrary legislative acts

without the prohibitions of the constitution.” 66

After expressing his disagreement with Calder’s

criminal-centric view, Justice Johnson noted that the

holding itself was in fact dictum because, as the

justices in Calder themselves stated, the government

action challenged in the case was judicial not

legislative in nature. 67 Justice Johnson then provided

a point-by-point refutation of the evidence advanced

by Justice Chase.

With respect to the argument that the Clause

targeted only criminal laws because other

prohibitions in Article I, Section 10 already addressed

civil laws, Justice Johnson reasoned that “by placing

65 25 U.S. (12 Wheat.) 213, 286 (1827).

66 Satterlee, 27 U.S. at 416 (Johnson, J.).

67 Id. at 416 n.a.

21

‘ex post facto laws’ between bills of attainder, which

are exclusively criminal, and laws violating the

obligation of contracts which are exclusively civil, it

would rather seem that ex post facto laws partook of

both characters, was common to both purposes.” 68 The

view that the ex post facto prohibition would be

superfluous if given a broader reach, Justice Johnson

maintained, resulted from a disregard for the many

retroactive laws that can adversely affect individuals,

beyond contracts:

the learned judges could not then have

foreseen the great variety of forms in

which the violations of private right have

since been presented to this court. . . .

This court has had more than once to toil

up hill, in order to bring within the

restriction on the states to pass laws

violating the obligation of contracts, the

most obvious cases to which the

constitution was intended, to extend its

protection; a difficulty, which it is

obvious, might often be avoided, by

giving to the phrase ex post facto its

original and natural application. 69

Furthermore, Justice Johnson noted that Justice

Chase’s reliance on Blackstone and Wooddeson was

misplaced, because the passages cited stood only for

the proposition that retroactive criminal laws are

68 Id.

Id. Justice Chase’s inference is also problematic because

Article I, Section 9 contains no parallel limits on Congress.

Under his reading, states can pass retroactive civil laws, but

Congress cannot.

69

22

especially problematic, not that they are the only kind

of prohibited ex post facto law. 70 Justice Chase’s

invocation of an unnamed contributor to the

Federalist Papers, who Justice Chase presumed to be

James Madison, was poor authority, because:

the writer has made no attempt at giving

a distinct exposition of the phrase, as

used in the constitution. Bills of

attainder, ex post facto laws, and laws

impairing the obligation of contracts, are

all considered together; and regarded, as

they really are, as forming together “a

bulwark, in favor of personal security

and private rights;” but on the separate

office of each, in the work of defence, he

makes no remark, and attempts no

definition or distribution. 71

Justice Johnson wrote that Justice Chase was also

wrong to cite state constitutions in support of his

conclusion. The Massachusetts and Delaware

constitutions that Justice Chase invoked, Justice

Johnson observed, did not contain the phrase “ex post

facto,” and only North Carolina and Maryland “would

seem to have applied the phrase in the restricted

sense.” 72 Of Maryland, which was “copied” by North

Carolina, Justice Johnson wrote that the restrictive

view of Justice Chase was likely influenced by the fact

70 Id.

71 Id.

72 Id.

23

that Justice Chase was a delegate to the Maryland

Constitutional Convention. 73

Other early era justices also expressed doubt about

the soundness of the Calder criminal-centric limit.

Although not citing Calder, one of the earliest and

most important Marshall Court decisions, Fletcher v.

Peck, 74 is one such example. Fletcher concerned a law

enacted by the Georgia legislature that retroactively

revoked land grants to purchasers without notice and

was challenged on Contracts Clause grounds. The

Court, with Chief Justice Marshall writing, backed

the challenge, marking the first time the Court

invalidated a state law on constitutional grounds. In

the opinion, the Chief Justice signaled his broad

understanding of the ex post facto prohibition, stating

that “[a]n ex post facto law is one which renders an act

punishable in a manner in which it was not

punishable when it was committed. Such a law may

inflict penalties on the person, or may inflict pecuniary

penalties which swell the public treasury.” 75

Similarly, Justice Joseph Story wrote in his

Commentaries on the Constitution that “ex post facto

laws, in a comprehensive sense, embrace all

retrospective laws, whether they are of a civil, or a

criminal nature.” 76 Justice Story further explained

that if the question of the applicable scope of the

Clause were assessed in a case of first impression,

before Calder, Justice Johnson’s analysis and

73 Id.

74 10 U.S. at 87.

75 Id. at 138 (emphasis added).

3 Joseph Story, Commentaries on the Constitution § 1339

(1833).

76

24

conclusions in Satterlee “would be entitled to grave

consideration.” 77 Earlier, in 1814 when riding circuit

as a justice, Justice Story stated that “[o]n principle,

every statute[] which takes away or impairs vested

rights acquired under existing laws, or creates a new

obligation, imposes a new duty, or attaches a new

disability, in respect to transactions or considerations

already past, must be deemed retrospective.” 78

Thomas Jefferson, while not directly involved in

drafting the Constitution or its approval (in Virginia,

his home state), but nonetheless a key player in the

nation’s early history, took a similarly expansive

view. 79

The views of participants in state ratifying

conventions—which James Madison later in life

believed key to understanding the Constitution 80—

likewise support a broader understanding of the scope

of the Ex Post Facto Clause. In North Carolina,

77 Id.

78 Soc’y for the Propagation of the Gospel v. Wheeler, 22 Fed. Cas.

756, 767 (C.C. N.H. 1814); see also Stoddart v. Smith, 5 Binn.

355, 370 (Pa. 1812) (Brackenridge, J.) (“I take notice of the

language of the Court of the United States, as confining ex post

facto to a criminal case. . . . [The view] is incorrect. Ex post facto

law . . . embraces civil contracts as well as criminal acts. . . . Our

constitutions use the phrase ex post facto law, or law impairing

contracts. They mean no more than to specify under the idea of

impairing contracts, a kind of ex post facto law, which was

embraced under the general term ex post facto.”).

79 See 13 Thomas Jefferson, The Writings of Thomas Jefferson

326–27 (1903) (“every man should be protected in his lawful acts,

and be certain that no ex post facto law shall punish or endamage

him for them . . . [T]hey are equally unjust in civil as in criminal

cases”).

80 5 Annals of Cong. 775 (1796) (remarks of James Madison).

25

Justice Iredell (who later concurred in Calder) viewed

the ex post facto prohibition as encompassing both

retroactive civil and criminal laws. 81 In Virginia, four

of five delegates addressing the ex post facto

prohibition took the same position. 82 Patrick Henry 83

and George Mason 84 were especially adamant that

retroactive civil laws came within the prohibition.

And in New York’s fractious convention, an

amendment was proposed that would specifically

81 Iredell, a staunch Federalist, resisted Anti-Federalist

arguments that the provision in Article I, Section 10 restraining

states from issuing paper money would discredit state paper

currency then in circulation. The limit, he argued, prohibited

future paper money circulation, and the Clause would protect

money already in circulation, making clear his view of its civil

application. See Willis P. Whichard, Justice James Iredell 132

(2000). Fellow delegate Stephen Cabarrus expressed a similar

view. See 4 The Debates in the Several State Conventions of the

Adoption of the Federal Constitution 184 (Jonathan Elliot ed.,

1836) [hereinafter Elliot’s Debates].

Iredell also published an anonymous essay evidencing his

broader understanding, stating: “The people are expressly

secured . . . against ex post facto laws, so that the tenure of any

property at any time held under the principles of the common

law, cannot be altered by any act of the future general

legislature.” James Iredell, Marcus I, Norfolk & Portsmouth J.,

Feb. 20, 1788, in 16 The Documentary History of the Ratification

of the Constitution 164 (John Kaminsi et al., eds., 1986).

82 Evan C. Zoldan, The Civil Ex Post Facto Clause, 2015 Wis. L.

Rev. 727, 746. George Mason, a delegate to both the federal and

Virginia ratifying conventions, identified his failed effort to limit

the ex post facto prohibition to criminal laws in his refusal to

support the federal constitution in Philadelphia. 2 The Records

of the Federal Convention of 1787 636 (Max Farrand ed., 1911).

83 Elliot’s Debates, supra note 81, at 425, 473–76.

84 Id. at 472–73, 479.

26

limit the ex post facto prohibition to criminal laws but

failed. 85

B.

Questioning Calder: Framing Era

History.

The vast majority of scholars, dating back to at

least 1900, 86 are of the view that during the Framing

Era ex post facto laws were understood by both the lay

public and those using a “technical” or “professional”

understanding to encompass both retroactive civil and

criminal laws. 87 In 1922, Professor Oliver Field noted

that James Madison, a key participant at the

Philadelphia Convention, and a main chronicler of

events there, believed that the ex post facto

prohibition encompassed both civil and criminal laws.

Professor Field pointed to Madison’s question on

August 28 at the Convention, in response to a motion

to include a provision barring state interference with

contracts: “Is not that already done by the prohibition

of ex post facto laws, which will oblige the Judges to

declare such interferences null & void?” 88 Of this,

Field reasoned that Madison was

evidently of the impression that ex post

facto applies to civil as well as to criminal

matters. It is odd that no member of the

Convention took the trouble to inform

85 Id. at 407.

86 See Brainerd T. DeWitt, Are Our Legal-Tender Laws Ex Post

Facto?, 15 Pol. Sci. Q. 96 (1900).

87 See Logan, supra note 2, at 218 n.73 (citing multiple journal

articles).

88 Oliver P. Field, Ex Post Facto in the Constitution, 20 Mich. L.

Rev. 315, 319 (1922).

27

him that he was laboring under a serious

misapprehension. It is hardly credible

that such a slip should be permitted

without some member calling it to his

attention. Madison does not record any

answer given to his query. 89

Professor Field also observed that use of “ex post

facto” in the Official Journal and Madison’s

corresponding use of the term “retrospective” in his

Notes demonstrated that the terms “were used

synonymously. It is improbable that Madison alone

understood the terms to have the meaning he attaches

to them. . . . During the entire debate recorded in this

connection there is a notable absence of anything

pertaining to criminal affairs.” 90 Furthermore, as

noted above, central players in the Virginia ratifying

convention clearly regarded the prohibition to

encompass civil and criminal matters. 91

More recently, in 2019, Professor John Mikhail

wrote that “[t]here is, in fact, a mountain of evidence

indicating that ex post facto laws were commonly

understood at the founding to include both civil and

criminal laws” and that Justice Chase and his fellow

justices were “aware of this fact.” 92 Professor Mikhail

notes that “[a]ll told . . . there appear to be

approximately three dozen founding era cases which

contradict the claim made by Justices Chase, Iredell,

89 Id.

90 Id. at 320.

91 Id. at 324–25.

John Mikhail, James Wilson, Early American Land

Companies, and the Original Meaning of “Ex Post Facto,” 17 Geo.

J. L. & Pub. Pol’y 79, 82 (2019).

92

28

and Paterson in Calder v. Bull that the phrase ‘ex post

facto law’ was understood at the time to be a technical

term limited to retroactive criminal laws.” 93 Professor

Evan Zoldan, in a 2015 article analyzing an even more

extensive array of historical sources, concluded that

not only did the technical/professional understanding

of ex post facto encompass civil and criminal laws, but

the general public/lay understanding did as well. 94

Summarizing the modern understanding of

Framing Era history, Professor Leonard Levy

characterized Calder’s narrow view of the ex post facto

prohibition as being “more innovative than . . . an

accurate reflection of the opinions of the Framers and

ratifiers. . . . [T]he history of the framing and

ratification of the ex post facto clauses simply do not

bear out the opinions in Calder. The Court in that case

reinvented the law on the subject.” 95

93 Id. at 86 n.41.

94 Zoldan, supra note 82, at 768–71.

Leonard W. Levy, Original Intent and the Framers’

Constitution 74 (1988); see also id. at 65–74 (providing extensive

critique of Calder’s criminal-centric view).

It is also important to note that Calder was decided in 1798,

without the benefit of any record of the discussions and debates

taking place at the Philadelphia Constitutional Convention. The

proceedings were held in secret and none of the justices were

present and even the skeletal record provided in the Official

Journal was not available until 1819. Madison’s piecemeal Notes

were published even later, in 1840. The Calder justices also

lacked access to records from the state ratifying conventions,

which were not available until 1827 (with the publication of

Elliot’s Debates).

95

29

C.

Calder’s Limited Legacy.

As discussed, Calder, despite its landmark status,

has long been criticized. Regarding the criminalcentric limit especially, strong reason exists to doubt

Justice Chase’s assertion that there was “a necessity

to give a construction, or explanation of the words ‘ex

post facto laws,’ because they have not any certain

meaning attached to them.” 96 On the contrary, when

the Constitution originated both the “technical” and

ordinary lay understandings of the ex post facto

prohibition covered both civil and criminal laws.

Calder’s limitation to criminal laws persists as an

unfortunate early example of poorly executed law

office history.

Overruling an aged precedent such as Calder

would be a notable event. However, as Professor

Michael Stokes Paulsen has written, “stare decisis,

understood as a theory of adhering to prior judicial

precedents that are contrary to the original public

meaning,

is

completely

irreconcilable

with

97

originalism.” Justice Thomas, echoing the view of

Justice Black voiced over three decades before, 98 has

signaled his desire to reconsider the criminal-centric

coverage mandated by Calder, 99 and more generally

expressed his willingness to overrule “demonstrably

96 Calder, 3 U.S. at 395.

Michael Stokes Paulsen, The Intrinsically Corrupting

Influence of Precedent, 22 Const. Comment. 289, 289 (2005).

98 See Lehmann v. United States, 353 U.S. 685, 690 (1957) (Black,

J., concurring) (expressing view that limiting the ex post facto

prohibition to criminal laws “confines the clause too narrowly”).

99 E. Enters., 524 U.S. at 539 (Thomas, J., concurring).

97

30

erroneous precedent,” 100 adding that “[t]his view of

stare decisis follows directly from the Constitution’s

supremacy over other sources of law—including our

own precedents.” 101 Justice Gorsuch has also

emphasized that stare decisis “isn’t supposed to be the

art of methodically ignoring what everyone knows to

be true.” 102

Stare decisis, the Court has also made clear, plays

a

diminished

role

regarding

constitutional

103

and that it is “at its nadir in cases”

questions

implicating

“fundamental

constitutional

104

protections,”

such as the Ex Post Facto Clause.

Moreover, it bears mention that deference to Calder’s

holding is less warranted for two additional reasons.

One is that, as noted, the Calder Court’s

pronouncement constituted dictum because the Court

was addressing a judicial act, not a legislative “law.”

Another concerns the in seriatim nature of the

opinions issued by the Calder justices. As the Eighth

Circuit itself recently observed, “it is instructive to

note that Justice Chase’s opinion in Calder was

written in the period in which each Justice gave his

opinion seriatim. Thus, it is not a Supreme Court

holding that would be included in the definition of

‘clearly established Federal law.’” 105

Gamble v. United States, 587 U.S. 678, 711–12 (2019)

(Thomas, J., concurring).

101 Id. at 718.

102 Ramos v. Louisiana, 590 U.S. 83, 105 (2020).

103 Payne v. Tennessee, 501 U.S. 808, 827 (1991).

104 Alleyne v. United States, 570 U.S. 99, 116 n.5 (2013).

105 Palmer v. Clarke, 408 F.3d 423, 432 (8th Cir. 2005).

100

31

Finally, from an institutional perspective,

overruling Calder’s limit will provide substantial

practical

benefits

concerning

the

doctrine’s

“workability,” another stare decisis consideration. 106

First, broadening ex post facto protection will obviate

the judicial need to decide whether a provision is civil

or criminal in nature, an arduous time-consuming test

evaluating multiple indeterminate manipulable

factors that are redundant and selectively relied upon

by courts. 107 Second, it will free state legislatures and

Congress from the felt need to camouflage sanctions

with meaningless labels and “civil” window dressing

in order to rebuff ex post facto challenges. 108

Third, and perhaps most important, doing away

with Calder’s cramped view will align with broader

shifts in governance since Calder, particularly the

advent of sanctions that make line-drawing

problematic. As Justice William Johnson noted in

1829, in Satterlee v. Mathewson, 109 the holding in

Calder “leaves a large class of arbitrary legislative

acts without the prohibitions of the constitution,” 110

which “the learned judges [in Calder] could not then

have foreseen.” 111

What was true in 1829 is much more so today, as

the scope of legislative activity has expanded

exponentially over time with governments frequently

106 Montejo v. Louisiana, 556 U.S. 778, 792 (2009).

See Logan, supra note 2, at 122–32 (noting longstanding

critiques in this regard).

108 See id. at 120–22.

109 27 U.S. at 380.

110 Id. at 416 (Johnson, J., concurring).

111 Id. at 416 n.a.

107

32

enacting retroactive sanctions that betray simple

binary categorization. As Justice Gorsuch recently

said of this hybridization:

today’s civil laws regularly impose

penalties far more severe than those

found in many criminal statutes . . .

Ours is a world filled with more and

more civil laws bearing more and more

extravagant

punishments.

Today’s

“civil” penalties include confiscatory

rather

than

compensatory

fines,

forfeiture provisions that allow homes to

be taken, remedies that strip persons of

their

professional

licenses

and

livelihoods, and the power to commit

persons against their will indefinitely.

Some of these penalties are routinely

imposed and are routinely graver than

those associated with misdemeanor

crimes—and often harsher than the

punishment for felonies. 112

CONCLUSION

For the reasons provided above, the Court should

vacate the holding of the Eighth Circuit Court of

Appeals in the proceedings below.

112 Sessions v. Dimaya, 584 U.S. 148, 184 (2018) (Gorsuch, J.,

concurring).

33

Respectfully submitted,

PROFESSOR WAYNE LOGAN

WAKE FOREST

UNIVERSITY SCHOOL OF

LAW

1834 Wake Forest Rd

Winston-Salem, NC

27109

KRYSTAL B. SWENDSBOE

Counsel of Record

LEAH C. DESKINS

GRACE O. MOORE

WILEY REIN LLP

2050 M St. NW

Washington, D.C. 20036

(202) 719-4197

kswendsboe@wiley.law

June 30, 2025

Counsel for Amicus Curiae