          Calder v. Bull, 3 U.S. 386 (1798)

              Commentary by Jon Roland

The opinion in this case is one of the more useful of the early Supreme 
Court opinions for establishing the original understanding of several of the 
key elements of the Constitution. Chief Justice Samuel Chase and Justice 
William Paterson might have presided at the travesties of due process in the 
Sedition Act trials of Thomas Cooper in 1800 and Matthew Lyon in 1798, 
respectively, which would lead to Chase being impeached and tried, but at 
least in this case their judicial insight was not impaired by partisan 
intemperance, and they bequeathed to us important guidance.

The following points are a restatement of the points made less clearly in
this opinion:

   1.Constitutional government and the courts are subject to natural law
     principles that define natural rights that the Constitution recognizes
     but does not create. 
   2.The basis for constitutions is the social compact, which involves
     agreement among members of society to defend one another from
     injustice. 
   3.An indication, if not a holding, that federal courts, or at least the
     Supreme Court, have jurisdiction to rule an act of Congress
     unconstitutional, if it conflicts with the U.S. Constitution, which
     would later be asserted in Marbury v. Madison,[1] although that
     was also not a holding but only dictum. 
   4.Acceptance of jurisdiction of a case between private parties who
     were citizens of the same state, on appeal from the highest court of
     the state, on a question "arising under this Constitution", although
     that was not one of the enumerated jurisdictions,[2] implying that
     jurisdiction was not limited to the enumerated jurisdictions, but also
     included federal question cases outside the enumeration. 
   5.An assertion that federal courts, or at least the Supreme Court,
     have jurisdiction to rule an act of a state legislature unconstitutional,
     if it conflicts with the U.S. Constitution. 
   6.The above lays the basis for federal courts, or at least the Supreme
     Court, to have jurisdiction on a federal question in a case between
     a citizen and his own state, although that was not one of the
     enumerated jurisdictions, contrary to the later holding in Barron v.
     Baltimore.[3] 
   7.The prohibitions against ex post facto laws, and by implication, bills
     of attainder, while intended mainly for criminal penalties, such as
     disablements of life, limb, or liberty, but also include disablements
     of property, when such disablements are of a vested right in
     property. 
   8.The law treats individuals as two persons, a private person with
     private rights, and a public person with public rights, which are
     those that are constitutionally protected. 
   9.The vesting of a property right is the elevation of a private
     property right into a public property right, entitled to the due
     process protections of a criminal proceeding or the just
     compensation protections of the Fifth Amendment, or, as in this
     case, the prohibitions of ex post facto laws and bills of attainder,
     indicating the equivalence of these concepts. Chase attempts to
     define vested right but does so only partially. 
  10.In constructing provisions of the Constitution, Justices Chase and
     Paterson presume that provisions of the Constitution are not
     redundant, which is not valid, since several of the provisions state
     overlapping or redundant concepts. 

This case raises fundamental questions about just what is the difference 
between a civil and a criminal proceeding.

Any judicial petition is to disable some rights of the defendant. A civil 
case is to disable private rights of the defendant, and the plaintiff may be 
either a private person or a government representing its people. It may seek 
damages for a prior injury, under common law, or injunction, specific 
performance of a contract, or mandamus of a public duty, under equity. A 
criminal case is to disable public rights of the defendant, which can 
include life, limb, liberty, or vested property, and although it may be 
prosecuted by a private person, must be prosecuted in the name of the 
people, in accordance with a public statute prohibiting an act of the 
defendant, which prescribes disablements of public rights as a penalty for 
that act.

A criminally prohibited act can be malum in se, an actual injury to someone, 
or malum prohibitum, which is normally justified as an attempt to prevent 
injury. But opening legislation to preventive measures is dangerous. 
Punishing people for their past offenses can be justified as prevention of 
future crimes, and past crimes are indeed usually the best predictors of 
future crimes, but when legislators try to use acts other than crimes as 
predictors of crimes, and prohibit those alleged predictive acts, they are 
disabling the right of the people to engage in such acts for innocent 
purposes.

Preventive legislation was not unknown to the Founders, but most of their 
criminal legislation presumed an act which was an injury to a victim. The 
difficulty with preventative statutory prohibitions is that they involve 
disablement of everyone's rights on a theory of causation that may not be 
valid, and may have unintended consequences that are worse than the intended 
ones. The prohibition of alcohol by constitutional amendment was a classic 
failure of this kind, and the present "war on drugs" seems to be another 
one. All too often the predictors chosen are weak or dubious causes of the 
evil the measure seeks to avoid, and are beneficial in other ways that may 
greatly exceed the hazards.

Although historically bills of attainder have sometimes imposed punishment 
legislatively for past acts which may have already been prohibited as 
crimes, or acts not prohibited as crimes when committed, which would be make 
them ex post facto laws, some have been justified as preventive, and sought 
to avoid political opposition by being imposed on a minority class or 
faction out of power. This would make bills of attainder the legislative 
equivalent of civil injunctive or mandamus relief, but without the trouble 
and expense of the plaintiff proving he would be injured if the relief 
sought is not granted. If done for alleged past acts that were crimes, it is 
disablement of public rights without due process of law, but if preventive, 
it is disablement of public rights for possible future acts, and that is in 
clear conflict with the purpose of government being the protection of 
rights. Rights may sometimes conflict and need to be balanced, but actual 
rights must be balanced against actual rights. It does not work to disable 
actual rights to prevent possible future infringements of rights that may 
never occur.

These considerations also open the question of the constitutionality of 
punitive damages in civil cases. They imply that such punitive damages are 
necessarily of a character that requires criminal due process. There is no 
constitutional prohibition against combining civil and criminal cases in a 
single action, but punitive damages must be imposed by a unanimous verdict 
of a jury of twelve, based on proof beyond a reasonable doubt, with all the 
due process protections of criminal trials.

The linking of ex post facto laws and bills of attainder to criminal actions 
fails to consider that the purpose of these provisions is protection of the 
rights of defendants, and it matters little, except perhaps to the 
reputation of the defendant, whether the action is called "civil" or 
"criminal" if the right sought to be disabled is the same. A competency 
hearing that seeks to confine the defendant to a mental institution is a 
petition to disable the liberty of the defendant, and as such must be 
accorded the same due process protections that a "criminal" action would 
have that sought to imprison the defendant. For the defendant there is 
little difference between confinement in a mental institution and 
confinement in a penal institution.



1. Marbury v. Madison, 5 U.S. (1 Cranch) 137; 2 L. Ed. 60 (1803).

2. Art. III Sec. 2 Cl. 1.

3. Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833).


