Tuesday, April 2, 2019
John Mikhail (Georgetown University Law Center) has posted James Wilson, Early American Land Companies, and the Original Meaning of 'Ex Post Facto Laws' (Georgetown Journal of Law & Public Policy, Vol. 17, No. 1, 2019) on SSRN. Here is the abstract:
Many commentators have questioned whether the interpretation of the term “ex post facto laws” in Calder v. Bull, which restricted that term to retroactive criminal laws, is historically accurate. Most prominently, over seventy years ago Professor William Winslow Crosskey argued not only that this “criminal-only” reading of “ex post facto laws” departed from the original understanding, but also that Justices Chase, Iredell, and Paterson adopted that erroneous interpretation in order to assist James Wilson, who by 1798 had fled from his creditors and needed retroactive bankruptcy protection. Drawing on new evidence related to legal disputes involving three land companies with which Wilson was associated, which eventually gave rise to Hollingsworth v. Virginia, Fletcher v. Peck, and Johnson v. M’Intosh, this Article contends that Crosskey was likely correct about the original meaning of “ex post facto laws,” but likely mistaken about the Justices’ motivations in Calder.
The Article is my contribution to a symposium on James Wilson that was hosted by the Georgetown Center for the Constitution and was held at Georgetown Law in December, 2017.