CONSTITUTIONAL INTERPRETATIONS

A federal statute that authorizes federal courts to issue orders of restitution against criminal defendants for committing a crime before the statute’s enactment is unconstitutional, when so applied, under the Ex Post Facto Law Clause of Article I, Section 9 of the United States Constitution. Ellingburg v. United States, U.S. Sup. Ct. Slip Opinion of January 20, 2026. Such orders, the Court reasoned, fulfill the purpose of the Ex Post Facto Law Clause to prohibit Congress from inflicting punishment upon defendants for crimes they committed before the enactment of the  operative statute.

As stated, the Ex Post Facto Law Clause cited in the Ellingburg Case  is found in Article I, Section 9 of the Constitution, which sets out a number of limitations upon the powers of the federal Congress to enact legislation.[1] The Clause reads as follows:

No Bill of Attainder or ex post facto Law shall be passed.

At the time the Clause was written and adopted, and as used today, the Latin phrase “ex post facto” literally described something that came “from what is done afterwards.”[2] Under that literal translation, an “ex post facto law” is a “law from what is done afterwards,” i.e., a law from a subsequent enactment. In short, it is a retroactive enactment of law.[3] Thus, the prohibition of passage of any “ex post facto Law” did prohibit the passage of the punitive “law” that caught Mr. Ellinburg in an order to repay the money he unlawfully obtained from a bank in an armed robbery before the punitive statute’s enactment. (He still may have to repay the bank for its loss in the robbery under the restitution law in effect at the time of the robbery.)

The Court’s focus on the need for a statute to have a punitive intent before falling within the meaning of an “ex post facto law” began 228 years earlier, when the Court issued a ruling in the case of Calder v. Bull, 3 U.S. 386 (1798). In that Case, a majority of the Justices opined that the Ex Post Facto Law Clause of Article 1, Section 10 did not apply to statutes that merely had an adverse effect on private property rights that had accrued before the statute’s enactment. While I agree with that ruling, as far as it literally goes, I believe that the Calder v. Bull Case wrongly extended that ruling to suggest its application to all “civil,” as opposed to “penal” statutes or proceedings.[4] Neither of those latter labels are suggested or implied in the literal translation of the phrase “ex post facto law.”

I interpret the Ex Post Facto Law Clauses to prohibit all legislation, whether labeled “penal” or “civil,” that are intended to govern transactions that have already taken place at the time of enactment. However, after 228 years of a contrary interpretation, I am a minority of one on that point. The Ellingburg Case was rightly decided either way.

/s/ Dan D. Rhea

[1] A similar, but not identical “Ex Post Facto Law Clause” is found in Article I, Section 10 of the Constitution, which sets out a number of limitations on the powers of state governments to enact state legislation.

[2] See “Ex Post Facto, Adv. & Adj., Etymology.” Oxford English Dictionary, Oxford UP, December 2025, https://doi.org/10.1093/OED/4079569124.

[3] See “Retroactive.” Merriam-Webster’s Unabridged Dictionary, Merriam-Webster, https://unabridged.merriam-webster.com/unabridged/retroactive. Accessed 23 Mar. 2026.

[4] Calder v. Bull, 3 U.S. 386 (1798), at pp. 399-400.