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).

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